Shaikh Noor Shaikh Chand vs State Of Mah & Anr
2016 Latest Caselaw 5554 Bom

                                                                             cran3370.05
                                           -1-




                                                                              
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                      
                        CRIMINAL APPLICATION NO. 3370 OF 2005
                       WITH APPLN/1445/2006 IN APPLN/3370/2005


     Shaikh Noor s/o Shaikh Chand




                                                     
     Age 65 years, Occ. Labour
     R/o. Shankar Nagar, Hamalwada,
     Parbhani                                                  ...Petitioner

              versus




                                         
     1.       The State of Maharashtra
                             
              (Copy to be served on
              Public Prosecutor, High Court
              of Judicature at Bombay,
              Bench at Aurangabad)
                            
     2.       Shaikh Amir s/o Shaikh Chand
              Age 60 years, Occ. Shankar Nagar
              Hamalwada, Parbhani
              (deleted as per court's order
      


              dated 26.9.2016)                                 ...Respondents
   



                                             ...
                     Advocate for Applicants : Mr. Anand P. Bhandari
                         APP for Respondents: Ms. R.P. Gour
                                            .....





                                                 CORAM : V. K. JADHAV, J.

DATED : 26th SEPTEMBER, 2016

JUDGMENT:-

1. At the outset, learned counsel for the applicant submits that

during pendency of this criminal application respondent No.2 original

complainant died and as per the provisions of Section 249 of Cr.P.C.

if the offence is lawfully compoundable or is not a cognizable offence,

the Magistrate in his discretion, notwithstanding anything contained

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in Chapter XIX, at any time before charge has been framed,

discharged the accused. Learned counsel submits that in warrant

trial the complaint or criminal prosecution does not abate on the

death of the complainant and Magistrate can substitute another

willing complainant to continue with the prosecution. So mere death

of the complainant after filing of the complaint does not affect the trial

since nobody is approached this Court in the pending criminal

application to continue with the prosecution, the applicant is hereby

permitted to delete the name of respondent No.2. Deletion to that

effect be carried out forthwith.

2. Being aggrieved by the judgment and order dated 5.12.2005

passed by the Sessions Judge, Parbhani in Criminal Revision No. 33

of 2002 original accused in R.C.C. No. 377 of 2000, preferred this

criminal application.

3. Brief facts giving rise to the present criminal application are as

follows:-

a) Deceased respondent No.2 had filed a private complaint

bearing R.C.C. No. 377 of 2000 against the present applicant and

one Shri Guddewar (T.I.L.R.) with the allegations that in furtherance

of their common intention, they had committed offence of cheating

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punishable under Section 420 of I.P.C. and also committed offences

punishable under Section 199, 200, 166, 167 r.w. 34 of I.P.C. by

preparing false documents and record. It has alleged in the

complaint that deceased father of the complainant and applicant

original accused, viz. Shaikh Chand owned the house property

bearing house No. 239 situated at Ward No.16 (old 179 and ward

No. 14) allotted to him by the Chief Officer, Municipal Council,

Parbhani in the year 1972 for residential purpose. The said Shaikh

Chand died on 6.8.1995. It has further alleged in the complaint that,

4 years prior to his death, he had executed Hibanama on 13.6.1991

gifting the said house property to respondent No.2 complainant and

on the basis of the said document, after his death, the said property

ought to have been mutated in the name of complainant. However,

applicant accused made an application for mutation in the office of

Land Record and submitted false affidavit contending therein that he

is the only legal heir of deceased Shaikh Chand. Accordingly, on the

basis of his representation, mutation entry No. 299 dated 27.10.1999

came to be sanctioned in his name.

b) After verification of complaint, the learned Magistrate was

pleased to issue process for the offences punishable under sections

420, 166, 167 r.w. 34 of I.P.C. against both the accused persons

named in the complaint. However, cognizance of the offence

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punishable under Sections 199 and 200 of I.P.C. was not taken. The

said order of issuance of process was challenged in Criminal

Revision No. 37 of 2001 by original accused No.2 and the said

revision came to be allowed by the learned Sessions Judge,

Parbhani. The order of issuance of process against accused No.2

was set aside.

c) Thereafter, present applicant moved an application Exh.13

before the Magistrate in R.C.C. No. 377 of 2000 for discharge. The

learned Magistrate by his order dated 4.3.2002, has allowed the said

application and discharged the present applicant original accused

and also dismissed the complaint bearing R.C.C. No. 377 of 2000.

Aggrieved by the same, respondent No.2 original complainant has

challenged the order before the Sessions Court by filing Criminal

Revision No. 33 of 2002 and the Sessions Judge, Parbhani by its

impugned order dated 5.12.2005 allowed the revision and thereby

quashed and set aside the order passed by the Magistrate. Hence,

this criminal application.

4. Learned counsel for the applicant submits that even the

allegations made in the complaint are accepted as it is, the offence

under Section 420 of I.P.C. is not attracted. Learned counsel

submits that present applicant has also lodged the complaint against

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respondent No.2 original complainant Shaikh Amir and 4 others for

having committed an offence punishable under Section 420 of I.P.C.

It has alleged in the said complaint that respondent No.2/original

complainant herein in furtherance of their common intention, with

other accused persons named in the complaint, falsely prepared

document of Hibanama and adoption deed in respect of same house

property. Present respondent No.2 alongwith other accused persons

in the said complaint, challenged the order of issuance of process by

filing criminal revision No. 37 of 2001 before the Sessions court,

Parbhani and the learned Sessions Judge, Parbhani by order dated

3.7.2001 set aside the order of issuance of process and dismissed

the complaint with observations that the civil dispute is going on

between the parties and the Magistrate ought to have taken more

care before issuing process against them.

Learned counsel further submits that present applicant had

instituted civil suit in respect of said house property against

respondent No.2. Learned Civil Judge has partly decreed the suit

and held that the present applicant as well as respondent No.2

herein are entitled for half share each in the said house property.

However, during pendency of said suit, respondent No.2 died and his

L.Rs. are substituted in his name in the said suit. Being aggrieved by

the same, the L.Rs of respondent No.2 preferred appeal before the

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District Court and the said appeal came to be disposed of in terms of

compromise arrived at between the present applicant and the legal

heirs of respondent No.2. Learned counsel submits that the applicant

was asserting his exclusive right to the house property and for that

purpose he had also instituted a civil suit. Furthermore, the applicant

also filed private complaint before the court alleging therein that

respondent No.2 alongwith two other persons created false

documents of Hibanama and also adoption deed.

Learned counsel for the applicant submits that on this

background, assuming that if the applicant had submitted an affidavit

before the authorities stating therein that he has exclusive right in the

suit property, ingredients of Section 420 of I.P.C. does not attract.

The Magistrate on the given set of facts and circumstances of the

case, has taken a view that no case is made out against the

applicant accused. Even accepting the allegations made in the

complaint, the revisional court cannot be justified in setting aside the

order merely because other view is possible. Revisional Court is not

mean to act as an appellate court. Unless the finding of the court,

whose decision is sought to be revised, is shown to be perverse or

untenable in law or is grossly erroneous or glaringly unreasonable or

where the decision is based on no material or where the material

facts are wholly ignored or where the judicial discretion is exercised

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arbitrarily or capriciously, the courts may not interfere with decision in

exercise of their revisional jurisdiction. Learned counsel thus submits

that the judgment and order passed by the learned Sessions Judge

is liable to quashed and set aside.

Learned counsel for the petitioner, in order to substantiate his

submissions, places reliance on the judgment of Hon'ble Supreme

Court in the case of Sanjaysingh Ramrao Chavan vs. Datatray

Gulabrao Phalke and others, reported in 2015 Cri.L. J. 1259.

5. I have also heard learned A.P.P. for the respondent State.

6. It is a matter of record that the applicant was asserting his

exclusive right in respect of the house property and the respondent

No.2 was also claiming his right in respect of the same property on

the basis of certain documents. It appears that the learned

Magistrate while discharging present applicant has considered the

same and accordingly discharged the present applicant. The

applicant was asserting his exclusive right in respect of house

property by filing civil suit and also by filing private complaint before

the court and in that way if he submitted any affidavit before the

authority stating therein that he has exclusive right in the house

property, I do not think that ingredients of Section 415 of I.P.C. stand

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attracted. Furthermore, even assuming that the applicant has

submitted an affidavit before the authority with some false statement

in the affidavit, still then ingredients of Section 415 of I.P.C. are not

attracted. Section 415 of I.P.C. is divided into two parts. First part of

Section 415 is made punishable under Section 420 of I.P.C.. In the

instant case, I do not find that by making some false statement in the

affidavit, the applicant fraudulently and dishonestly induced

respondent No.2 original complainant to deliver the property to any

person or to consent that any person shall retain the property.

7. In the case of Sanjaysingh Ramrao Chavan vs. Datatray

Gulabrao Phalke and others (supra), the Supreme court, in para

15 has made the following observations:-

"15. Cognizance is a process where the court takes judicial notice

of an offence so as to initiate proceedings in respect of the alleged violation of law. The offence is investigated by the police. No doubt, the court is not bound by the report submitted by the police under

Section 173(2) of Cr.P.C. If the report is that no case is made out, the Magistrate is still free, nay, bound, if a case according to him is made out, to reject the report and take cognizance. It is also open to him to order further investigation under Section 173(8) of Cr.PC. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view

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taken by the court is wholly unreasonable or there is non-

consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting

aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the

court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.P.C is not to be equated with that of an appeal. Unless the

finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or

glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the

judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."

8. In the instant case, I do not find that the order passed by the

Magistrate is perverse or untenable in law or is grossly erroneous.

9. In view of the above discussion, the impugned order passed by

the learned Sessions Judge does not stand. Hence, I proceed to

pass the following order:-

ORDER

I. Criminal application is hereby allowed in terms of prayer

clause "B".

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II. Criminal application is accordingly disposed of. Rule

made absolute in the above terms.

III. In view of disposal of criminal application, criminal

application No. 1445 of 2006 is also disposed of.

                              ig                       ( V. K. JADHAV, J.)

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