Bombay High Court
Sarvar Pasha Afzal Miya Pasha And ... vs The State Of Maharashtra And Anr on 13 October, 2017
Bench: S.S. Shinde
1 APPLN424.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 424 OF 2017
1. Afsaribegum W/o Iqbal Salim,
Age 51 years, Occu. Household
2. Numan Salim S/o Iqbal Salim,
Age 24 years, Occu. Student,
Both R/o. Plot No. 13B, Times Colony, Katkat Gate,
Taluka and District Aurangabad.
3. Fahim Akhtar Mohammad Gaus,
Age : 63 years, Occu. Retired Government Servant,
R/o. Plot No. 14A, Times Colony, Katkat Gate,
Taluka and District Aurangabad.
4. Mohammad Amjad Madin Mohammad Gaus,
Age : 51 years, Occu. Business,
R/o. Sadaf Colony, Katkat Gate,
Taluka and District Aurangabad. ...Applicants
(Orig. Accused No. 2, 3, 7 & 8)
VERSUS
1. State of Maharashtra,
Through the City Chowk Police Station,
Taluka and District Aurangabad.
2. Shaikh Mujataba Rafiq Abdul Wahed,
Age : 51 years, Occu. Business & Agriculture,
R/o. Plot No. 28/B, Times Colony,
Near Usmania Masjid, Orig. Complainant
Taluka & District Aurangabad. ... Respondents
WITH
CRIMINAL APPLICATION NO. 425 OF 2017
1. Sarvar Pasha Afzal Miya Pasha,
Age 45 years, Occu. Business,
R/o. Times Colony, Katkat Gate,
Taluka & District Aurangabad.
2. Mohammad Wasim Mohammad Azim
Age : 33 years, Occu. Business,
R/o. Sadaf Colony, Katkat Gate,
::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:52:11 :::
2 APPLN424.2017
Taluka & District Aurangabad.
3. Mohammad Afsar Shamim Mohammad Gaus,
Age : 48 years, Occu. Business,
R/o. Times Colony, Katkat Gate,
Taluka & District Aurangabad.
4. Iqbal Salim Mohammad Gaus,
Age : 61 years, Occu. Retired Govt. Servant,
R/o. Plot No. 13B, Times Colony,
Katkat Gate, Taluka & District Aurangabad. ...Applicants
(Orig. Accused No. 4, 5, 6 & 1)
VERSUS
1. State of Maharashtra,
Through the City Chowk Police Station,
Taluka and District Aurangabad.
2. Shaikh Mujataba Rafiq Abdul Wahed,
Age : 51 years, Occu. Business & Agriculture,
R/o. Plot No. 28/B, Times Colony,
Near Usmania Masjid, Orig. Complainant
Taluka & District Aurangabad. ... Respondents
..........
Mrs Rashmi S. Kulkarni, Advocate for the applicants
Mr M. M. Nerlikar, APP for respondent/State
Mr M. R. Jadhav, Advocate for respondent No. 2
.............
CORAM : S. S. SHINDE &
A. M. DHAVALE, JJ.
RESERVED ON : 20.09.2017.
PRONOUNCED ON : 13.10.2017.
JUDGMENT (PER A. M. DHAVALE, J.) :
1. Rule2. Rule made returnable forthwith. Heard finally with
the consent of the parties and taken up for final disposal at admission
stage.
3 APPLN424.2017
2. These applications are filed u/s 482 of the Cr.P.C. for
quashing of FIR at C.R. No. 0519 of 2016 registered with City Chowk
Police Station, Tq. & Dist. Aurangabad, against the applicants in both
the applications for the offences punishable u/s 403, 409, 420, 423,
467, 468, 471, 504, 506 & 120 B of the IPC. The applicants in Cri.
Appln. No. 424/2017 are accused Nos. 2, 3, 7 & 8 whereas; the
applicants in Cri. Appln. No. 425 of 2017 are accused Nos. 4, 5, 6 &
1, respectively.
3. The facts relevant may be stated as under :
Respondent No. 2 - Shaikh Mujtaba has lodged impugned
FIR dt. 22.11.2016 at City Chowk Police Station, Aurangabad. As per
FIR, the informant was dealing in real estate. Accused No.1 - Iqbal
Salim Mohd. Gaus (A1) was working as Shirastedar in DILR Office
while his brother - Fahim Akhtar (A7) was working there as a Clerk.
He has retired on 31.05.2011 (Exh. P-1). As per FIR, one real estate
agent Syed Ismail informed Mujataba (R2) that Iqbal Salim (A1) was
having many proposals for land dealings. The FIR shows that, Iqbal
Salim (A1) represented to him that he was having several lands but
as he was Government Servant, he had purchased those lands in the
name of different persons. He shows willingness to sell those lands.
Then after negotiations, Shaikh Mujataba (R2) entered into six
4 APPLN424.2017
transactions out of which two were outright sale deeds and four were
agreement to sale as shown in the accompanying chart.
Sr. Type of Property Particulars Payments Complain
No agreement details ts
short form for Crore (Cr.)
short form for accused (A)
acre & guntha
(A) & (G)
1 Agreement to Land of 2 A 30 Iqbal Salim (A1), 20 lakhs by chq. to No sale
Sell dt. G at Gut No. Ajij Momin (A10) deed.
02.05.2011 24/3 at Ajij Momin (A10) Assured
Bhavsingpura 15 lakhs by chq to but
for Rs. 60.00 Mujaffar (A9) Mujaffar (A9) earnest
lakhs not
(A2, A3, A4 & A5 10 lakhs cash to returned.
present) Iqbal Salim (A1)
2 15.07.2011 G. No. 23 Iqbal (A1), 20 lakhs to Md. No sale
Oral two (15 acre+2 acre Afsar Shamim (A6) deed
agreements at Nandrabad). Afsar Shamim (A6) Dispute
to sell on Postdated chq of 10 with
02.07.2014 Price 18.00 (A2, A3 present) lakhs to Md. Afsar original
lakhs per acre. Shamim (A6) owner
pending.
1.20 cr. to A1 & A6
3 Oral Gut No. 209 at Iqbal (A1) 15 lakhs to Yusuf, Transactio
Agreement to Ohar, 1A 27G. Sarvar Pasha (A4) n not
sell dt. Mujaffar (A9) & Iqbal Salim (A1) completed
01.11.2011 & Rs.80.00 lakhs
written per acre. Abdul Majid (A10) 1 Cr. Cash to Iqbal
agreement (A1) & Sarvar (A4)
dt.22.07.201 Yusuf Khan
Sarvar Pasha (A4)
4 Oral Ohar Gut No. Sharifabi Transactio
agreement 209 Iqbal (A1) 75 lakhs to A1 n not
dt. 1.11.11 & (1H 21R) Sarwar Pasha (A4) completed
written 3A 1G Wasim (A5)
agreement
dt.22.07.13
5 Sale deed in Gut No. 202 Mujaffar A9 No
fvour of R2's 7A 17G for 2.65 Iqbal A1 possession
nephew. crores. Afsar (A6)
Sarwar (A4)
6 Oral 3 A 30 G 50 lakhs cash to No sale
agreement to Gut No. 58 at A1. deed.
sell Satara Beed- 1 Cr. by four
07.03.2012 bypass. cheques (A4-50
Price 3 Cr per lakhs & A5-50
acre. lakhs).
7 In 2013, Reg. Gut No. 206, 79 A1 Iqbal No
Sale Deed. G at Ohar. A4 Sarvar possession
A2 Afsaribegum
Price 1.60 Cr. A3 Numan
5 APPLN424.2017
4. Thus, the chart shows that, the agreements to sell were
executed by making some payments by chque in favour of the
persons holding the land in their name and it is alleged that huge
cash amounts were paid to Iqbal Salim (A1). The FIR shows that
applicant Nos. 1-Afsaribegum (A2) & 2-Numan (A3) in Cri. Appln No.
424 of 2017 were present at the time of first transaction between
Shaikh Mujtaba (R-2) on one hand and Iqbal Salim (A1) and Sarvar
Pasha (A4) & Mohd. Wasim (A5) on the other. Out of the
consideration of Rs. 60.00 lakhs, two cheques were issued of Rs.
20.00 lakhs & 15.00 lakhs respectively in favour of Ajij Momin and
Mujaffar, while Iqbal Salim (A1) received cash amount of Rs. 10.00
lakhs. There was assurance to execute the sale deed and to deliver
possession in favour of R2 but it was not done.
5. The second transaction shows that, two lands of 15 acre
and 2 acres respectively from Nandrabad in the name of Mohd. Afsar
Shamim Mohd. Gaus were agreed to be sold at the rate of Rs. 18.00
lakhs per acre. Cheque payments of Rs. 20.00 lakhs & 10.00 lakhs
were made in the name of Afsar Shamim Mohd. Gaus while cash of
Rs.1.00 crore was given to Iqbal Salim (A1) & Mohd. Afsar Shamim
(A6) in presence of Afsaribegum (A2) & Numan (A3). Besides,
additional cash of Rs.20.00 lakhs was also paid. Two agreements to
sale dt. 02.07.2014 were executed in favour of Shaikh Mujataba (R2)
6 APPLN424.2017
by Mohd. Afsar Shamim (A6). However, neither possession was
given nor execution of sale deeds was done.
6. The third transaction is in respect of 3 acres 7 gunthas at
Gut No. 209, Ohar. The rate of the said land was Rs. 80.00 lakhs per
acre. The owner was Yusuf Khan Afjal Khan. Two stamp papers of
Rs. 100/- were procured and agreement to sale were executed by
making payment of Rs. 15.00 lakhs, which was acknowledged.
Besides, cash of Rs. 1.00 crore was paid to Iqbal Salim (A1) & Sarvar
Pasha (A4). On the same day, one Sharifabi at the instance of Iqbal
Salim (A1) executed agreement to sale in respect of land of 3 acre 1
guntha for which Shaikh Mujtaba (R2) paid cash of Rs. 75.00 lakhs
to Iqbal Salim (A1). Thus, total amount of Rs. 1.90 Crore was paid
for purchasing the land at Ohar. However, neither possession was
given nor sale deed was executed.
7. On 15.12.2011, Mujaffar Khan as partner of Iqbal Salim
Gaus executed sale deed in favour of R2-Shaikh Mujtaba's nephew
Shaikh Ajaharoddin Shaikh Akhtaroddin in respect of 99 gunthas
land at Gut No. 202 for Rs. 2.65 crores. The amount was paid to
Mujaffar Khan, Iqbal Salim (A1), Afsar Shamim (A6) & Sarvar Pasha
(A4) but the purchasers did not receive the possession.
7 APPLN424.2017
8. In March-2012, there was further agreement in respect of
land of 3 acres 30 guntha at Gut No. 58 at Satara Beed By-pass,
Aurangabad, of which rate agreed was Rs. 3.00 crores per acre. It
was executed for compensating the losses sustained in the earlier
transactions. Sarvar Pasha (A4) & Mohd. Wasim (A5) had shown
agreement to sale of the said land in their favour and assured to
execute sale deed and on the said assurance Iqbal Gaus (A1) had
taken Rs. 50.00 lakhs in cash and 2 cheques of Rs. 25.00 lakhs each
on 07.03.2012/12.03.2012 in favour of Md. Wasim Md. Azim (A5) &
2 cheques of Rs. 25.00 lakhs each in favour of Sarvar Pasha Afzal
Miya Pasha (A4) as part consideration for purchasing land of 3 acres
30 gunthas. But the said contract could not be materialized and the
vendors agreed to refund the amount but did not refund the same.
9. In 2013, Iqbal Salim, Sarvar Pasha (A4), Afsaribegum (A2)
& Numan (A3) received 1.60 crore and executed sale deed in respect
of 79 gunthas at Gut No. 206 at Ohar in favour of son of Shaikh
Mujataba (R2) but the said land was in dispute and the purchasers
could not get the possession of the said lands.
10. As huge money of Rs. 9.75 crores of Mujtaba (R2)
remained blocked in the transactions without getting possession of
the lands, after negotiations, Iqbal Salim Gaus (A1) executed writing
8 APPLN424.2017
dt.19.06.2014 on notarized stamp paper and thereby agreed to
refund the amount within one year. Shaikh Mujtaba (R2) waited for
one year and thereafter when he had gone to the accused persons for
demanding money, he was intimidated and abused and therefore he
lodged FIR.
11. Ld. advocate Mrs Rashmi S. Kulkarni for the applicants
sought quashing of the FIR on the following grounds :
(i) In respect of the same allegations, R2-Mujtaba had
made 3 complaints to Supdt. of Police or Police
Inspectors and after inquiry it was held that there was
no substance in the complaints, those were civil
disputes and hence no action was taken. These
material facts were suppressed by R2.
(ii) The allegations even if taken at their face value do not
make out ingredients of the relevant offences
registered against the applicants.
(iii) The allegations disclose that those are civil disputes.
(iv) No specific role is assigned to any of the applicants
from Cr. Appln No. 424/2017.
9 APPLN424.2017
(v) Even in case of applicants from Cr. Appln
No.425/2017, no criminal acts are attributed to the
applicants.
(vi) The so-called agreement dt. 19.06.2014 is forged and
fabricated. It does not bear the signature of Iqbal
Salim (A1). The notary had stopped his work due to
paralysis and he had lodged complaint that his stamps
were missing. He has denied that such a document
was notarized by him.
12. Mrs Kulkarni relied on the judgment of the Hon'ble Apex
Court in the case of Thermax Ltd. and Ors. Vs. K.M. Johny and
Ors. (2011) 11 SCC 128, wherein in para 29 it is held as under :
29) The entire analysis of the complaints with
reference to the principles enunciated above and the
ingredients of Sections 405, 406, 420 read with Section
34 IPC clearly show that there was inordinate delay
and laches, the complaint itself is inherently improbable
contains the flavour of civil nature and taking note of
the closure of earlier three complaints that too after
thorough investigation by the police, we are of the view
that the Magistrate committed a grave error in calling
for a report under Section 156(3) of the Code from the
Crime Branch, Pune. In view of those infirmities and in
the light of Section 482 of the Code, the High Court
ought to have quashed those proceedings to safeguard
the rights of the appellants.
10 APPLN424.2017
13. In Dalip Kaur and Ors. Vs. Jagnar Singh and Anr. (2009)
14 SCC 696, it is held that, breach of contract on the part of the
appellants by non-refunding the amount of advance would not
constitute an offence of cheating. Similar is the legal position in
respect of an offence of criminal breach of trust having regard to its
definition contained in Section 405 of the Indian Penal Code. See
Ajay Mitra v. State of M.P. 2003 CriLJ 1249.
14. Mrs Rashmi Kulkarni referred to the definitions of the
various offences charged and the contents of the FIR and the earlier
communication to the superior officers to submit that the necessary
ingredients of the offences are not disclosed and in some cases, those
are clearly afterthought. There is inordinate delay in lodging the FIR.
She further argued that, the complainant was an ordinary mechanic
and he could not have raised such a huge amount of Rs. 9.75 crores.
Besides, the total amount is differently shown at different stages. The
complainant had filed two suits in which the allegations are
materially different. Respondent No. 2 is having criminal background
and six cases are pending against him. There are some cases pending
even against his witnesses. Hence, the allegations are inherently
improbable and cannot be believed and the proceedings may be
quashed.
11 APPLN424.2017
15. Per contra, learned APP - Mr M. M. Nerlikar for respondent
No. 1 and Mr M. R. Jadhav for respondent No. 2 vehemently opposed
the application. They claimed that, accused No. 1-Iqbal Salim was
serving in DILR Office. Therefore, he was not entitled to purchase
lands and enter into dealings. He has entered into dealings by
producing his relatives as vendors as the properties were purchased
in their names. Huge amounts are received in cash. R2-Mujtaba was
induced dishonestly to part away such huge amounts and he has
received nothing. No sale deeds are executed in his favour in many
cases whereas he has not received possession in any of cases
including the cases where there are outright sale deeds. According to
them, the FIR discloses role to each of the accused and there are no
separate FIRs. The report was made to the Police Commissioner, who
sent it to Begumpura Police Station and it was registered as FIR and
thereafter it was transferred to City Chowk Police Station. No earlier
FIR was registered. When such huge stakes are involved, this is not a
fit case to stop the investigation by invoking powers u/s 482 of
Cr.P.C. There is no likelihood of any miscarriage of justice. In fact
respondent no. 2 has been duped for huge amount and, therefore,
quashing of the proceedings would result into injustice.
12 APPLN424.2017
16. After carefully considering the arguments and perusing the
papers, we proceed to consider whether the FIR can be quashed
against all the applicants or not.
17. Though the transactions look like having a civil flavour,
those are not civil in nature. Iqbal Salim, who is accused no.1, is the
main person in all the transactions but the documents are not
executed by him. He has received huge amounts either as a
consideration or a commission and the documents are executed by
the persons in whose name the lands were standing. It is obvious that
the amounts paid to Iqbal Salim are not disclosed in the documents.
Therefore, respondent No.2 is not in a position to file suit against
Iqbal Salim to recover the amounts paid to him. The amounts are
huge in nature. It is argued that, respondent No. 2 was not in a
position to make huge payment but in the complaint of accused no. 1
- Iqbal dt. 18.03.2016, it is disclosed that though respondent No. 2
was an ordinary mechanic, he has entered into land dealings and
earned 20-25 crores of rupees. Therefore, the capacity of respondent
No. 2 to make such a huge payment cannot be doubted. Though
payment of huge amount by way of cash is suspicious, the
transactions cannot be doubted as there are payments by cheque also
and there are statements of various accused persons before the police
admitting the transactions. It is also not disputed that, in many
13 APPLN424.2017
transactions respondent no. 2 has not received possession of the
lands.
18. However, we find that in the third transaction dt.
15.12.2011, on receipt of Rs.2.65 crores, Iqbal Salim (A1), Mujaffar
(A9), Afsaribegum (A2) and Sarvar Pasha (A4) have executed
registered sale deed. The contention of respondent No. 2 that he has
not received any possession is falsified by the averments made by
Shaikh Ajharoddin in RCS No. 411/2014. He claimed that, he
received possession and he filed suit for injunction against Daud
Khan and the court has also granted temporary injunction in his
favour. Therefore, as far as this transactions is concerned, there is no
substance in the case of respondent No. 2.
19. On 26.06.2013, Sarvar Pasha has executed registered sale
deed of land of 1 H 39 R at Gut No. 206 on receiving a sum of
Rs.1.00 crore or Rs. 1.60 crores. It is contended that the purchaser
had not received possession but once the sale deed is executed, it is
for the purchaser to obtain the possession. The buyer should be
aware and should make proper inquiry before entering into the
transaction. In the present case, so many transactions are executed
by respondent No. 2 either personally or through his relatives. In all
of which Iqbal Salim is involved. It was responsibility of respondent
14 APPLN424.2017
No. 2 to make proper inquiry before purchase or execution of
registered sale deed. We find that, no offence could be disclosed in
respect of this transactions where there is outright sale.
20. The remaining transactions were executed between
02.05.2011 to 26.02.2012. In one case, the agreement to sell was
executed on 02.07.2014. There is alleged disputed agreement dt.
19.06.2014 whereby accused no. 1 agreed to refund the entire
amount to respondent No. 2 within one year. In the light of these
facts, it is certain that FIR lodged on 22.11.2016 is very much
belated. In fact, SCS No. 260/2013 in respect of first transaction was
filed much earlier for recovery of Rs. 45.00 lakhs. In that case,
amount of Rs. 20.00 lakhs was paid by cheque to Ajij Momin (A10)
and cheque of Rs.15.00 lakhs in the name of Mujaffar (A9). There
was cash payment of Rs. 10.00 lakhs to Iqbal Salim. For recovery of
the said amount, Civil Suit has been filed but when the payments are
made in cash are not shown in the document, it will no more remain
a simple civil dispute.
21. As far as previous complaints are concerned, those are not
strictly FIRs. The earliest in point of time is communication
dt.21.08.2015 to Jt. Commissioner of Police, Mumbai (page 69)
which only shows that respondent No. 2 had made payment of
15 APPLN424.2017
Rs.35.00 lakhs to Iqbal Salim Mohd. Gaus (A1) near GPO office,
Mumbai for investment in property at Aurangabad. Iqbal Salim has
not given property nor amount. This is a transaction shown to have
taken place at Mumbai. The other transactions which took at place
Aurangabad, could not have been included in the said transaction.
22. Thereafter, on 09.12.2015, respondent No.2 made a report
to CP Aurangabad. It is a vague communication showing various
transactions in respect of the lands at Nandrabad, Bhavsingpura and
Satara in Aurangabad. It refers to eight various transactions without
disclosing the details thereof. It shows that, inspite of paying huge
amounts, respondent No.2 had not received possession and he was
intimidated and threatened by Iqbal Salim and his relatives. The
names of various accused persons are also shown. It seems that, the
Commissioner of Police directed inquiry and PSI (Economic Wing)
made some inquiry. The statements of various accused persons were
recorded. The inquiry revealed that, there were transactions between
respondent No. 2 on one hand and Iqbal Salim and his relatives on
the other. The report of PSI after the inquiry is not on record. In the
first place, as held in case of Lalita Kumari Versus Government of
Uttar Pradesh and others (2014) 2 SCC 1, the police including the
Commissioner of Police had no right to conduct a detailed inquiry
before registration of the FIR. If the allegations in the FIR disclose
16 APPLN424.2017
commission of offences, the FIR should have been registered and
thereafter the investigation should have been made. Mere conduct of
inquiry does not amount to investigation of a crime. The report
submitted to the Commissioner of Police also can not amount to FIR.
There is no specific report as to what was the result of inquiry.
Therefore, when the FIR was not registered, there was no bar for
registration of FIR and the report to the CP cannot be treated as first
FIR so as to make present FIR as second FIR.
23. There are allegations about third complaint which are not
on record. Thus, we find no substance in the contention that the FIR
deserves to be quashed on the ground that it is a second FIR. In
respect of transaction dt. 19.06.2014, the applicants claim that it was
not executed by them. They rely on the fact that the Notary
Mr.Lathkar had lodged complaint of loss of stamps and also that he
was paralyzed and not executed any agreement. Respondent No. 2
relies on the fact that the witness to the transactions has filed
affidavit supporting to it. We find that this is the disputed question
of fact and we should not dvelve upon in such disputed questions of
fact while exercising powers u/s 482 of Cr.P.C.
24. After considering the seriousness and gravity of the
offences, the payments made in cash without issuing receipts, the
17 APPLN424.2017
involvement of Iqbal Salim in all the transactions without showing
his name in any of the documents, we find that this is not a fit case
for invoking the provisions of Section 482 of Cr.P.C. in general except
in cases of the accused persons who have been assigned no role in the
complaint. In this regard, we rely upon State of Madhya Pradesh v.
Surendra Kori 2013 CRI. L. J. 167. In this case, the Dy. Registrar
had fraudulently executed large number of sale deeds during the
scheme period. The charge-sheet shows allegations that those were
executed for wrongful benefit of scheme were registered without
verification of signatures and the petitioner alleged to have conspired
in registration of them. Considering the magnitude of crime,
number of documents were executed fraudulently and involvement of
the respondent therein could be decided only after an opportunity to
the prosecution for proving the charges, order of quashing the
charge-sheet and FIR was held liable to be quashed. In this case also,
we feel it necessary to permit the prosecution to complete the
investigation to find out the truth.
25. We rely upon Rajiv Thapar and Ors. v. Madan Lal
Kapoor 2013 CRI.L.J. 1272 SC, Amit Kapoor Versus Ramesh
Chander and another (2012) 9 SCC 460 & Padal Venkata Rama
Reddy Alias Ramu Versus Kovvuri Satyanarayana Reddy and
others (2011) 12 SCC 437, wherein it is laid down that, the inherent
18 APPLN424.2017
powers are to be exercised sparingly in order to prevent the abuse of
the process of court or patent miscarriage of justice where the court
finds that ends of justice would be met by quashing of the
proceedings. In the present case, when there are allegations that the
applicants have taken huge amounts in crores from respondent No. 2
without issuing any receipt to him in the agreements which are
difficult to enforce. We should not invoke the powers u/s 482 of
Cr.P.C. No harm will be caused by allowing continuation of the
investigation and thereafter leaving the parties to use appropriate
remedies for discharge in case of submission of charge-sheet.
26. However, where there is a patent absence of material
disclosing the involvement of some of the applicants in any
transactions showing any criminal elements, the powers can be
exercised.
27. After having said this, we find that the allegations in
respect of applicant No. 1 and applicant No. 2 do not disclose their
involvements are quite improbable. In FIR, it is alleged that
respondent No. 2 Shaikh Mujataba entered into transaction with
Iqbal Salim at his house and that time Numan (A3) and Afsaribegum
(A2) were present there. Mere presence will not be sufficient to drag
them into the litigation. Pertinently in respect of the same
19 APPLN424.2017
transactions, Special Civil Suit No. 260/2013 is filed in which these
two persons are not joined as party. No role has been assigned to
them in this transaction. Similarly, with respect to the transaction of
Nandrabad (15+2 acres), it is alleged that, Numan (A3) and
Afsaribegum (A2) were present there. Again no role has been
assigned to them in this transaction. Payment of amount by cheque
is made to other accused and payment of cash of Rs. 1.20 crores is
also allegedly made to other accused.
28. In respect of transaction of 3 acre 3 gunthas land at Gut
No. 58 at Satara, it is shown that Afsaribegum (A2) was present
along with Iqbal Salim (A1), Mohd. Wasim (A5) was showing the
agreement to sale in favour of Sarvar Pasha (A4) and Mohd. Wasim
(A5). But the payment of Rs.1.30 crores was made to Sarvar Pasha
(A4), Mohd. Wasim (A5) and Iqbal Gaus (A1).
29. In respect of land of 79 R at Gut No. 206, it is shown that
consideration of Rs. 1.60 crores was paid to Iqbal Salim (A1),
Afsaribegum (A2), Mohd. Wasim (A5) and Numan (A3) and they
executed sale deed in favour of son of respondent no. 2.
30. As far as applicant No. 3 - Fahim and applicant no. 4 -
Mohd. Amjad Madin are concerned, only allegations are that Fahim
20 APPLN424.2017
Akhtar was serving as a Clerk and both of them were showing the
lands on behalf of Iqbal Gaus (A1). They were not party to the
transaction between respondent No. 2 & Iqbal Salim (A1). No
payments were made to them. Therefore, we find that, there is no
material against applicants No. 3 & 4 to show their involvement in
the said crime.
31. We find that, in case of sale deed dt. 15.12.2011 executed
in 2013 in respect of land at Gut No. 202 by accepting Rs. 2.65 crore,
there are no criminal elements involved in the said transaction.
Respondent No. 2 has paid the money and he has received the
possession. The purchasers under the sale deed has filed RCS
411/2014 and his possession has been confirmed by the court. The
FIR in this regard deserves to be quashed.
32. We also find that, the last transaction described in the FIR
in respect of land of 79 R from Gut No. 206 at Ohar is a complete
sale transaction. The money is paid and the sale deed is executed.
There are no criminal elements involved. Therefore, the FIR in
respect of the said transaction also deserves to be quashed. When
these outright sale deeds are excluded and the FIR is considered with
respect to the allegations against each of the applicants, we find no
material against accused no. 2 - Afsaribegum and accused no. 3 -
21 APPLN424.2017
Numan. At the time of first transaction which took place in the house
of Iqbal Salim, it is shown that they were present there. Since
accused nos. 2 and 3 are wife and son of Iqbal Salim, their presence
in the house do not connect them with the crime. No other role has
been assigned to them in respect of transaction of land at Gut No.
24/3 at Bhavsingpur.
33. In respect of second transaction of land of 17 acres at
Nandrabad, again they are shown present in their house when the
transaction actually took place with accused no. 1 - Iqbal Salim and
accused no. 6 - Mohammad Afsar Shamim Mohammad Gaus. Their
mere presence in their own house is not an incriminating
circumstance against them. The main role assigned to them is of
receiving consideration sale price and execution of sale deed dt.
26.06.2013 in respect of land of 79 R at Gut No. 206. We have
already held that, there are no criminal elements in these
transactions as outright sale deed has been executed and it is not
alleged that they were not the owners of the property. The accused
nos. 2 & 3 have not been assigned no role in other transactions.
Hence, the FIR against them deserves to be quashed.
34. As far as accused no. 8 - Mohammad Amjad Madin
Mohammad Gaus is concerned, no specific role was assigned to him
22 APPLN424.2017
in any of the transactions. He is younger brother of main accused -
Iqbal Salim. His name has directly appeared in the last para. The
contents of the FIR even if accepted at face value do not disclose any
criminal act on the part of accused no. 8-Mohammad Amjad Madin
Mohammad Gaus as well. Similar is the case with accused No. 7 -
Fahim Akhtar. He has executed sale deed of land at Gut No. 202. No
criminal element is involved in said transaction. He is not involved in
any other transaction. We therefore find that, the FIR deserves to be
quashed against accused Nos. 2, 3, 7 & 8, who are applicants in
Criminal Application No. 424 of 2017. With respect to the
remaining accused, there is material to show that they had taken part
in various transactions along with accused no. 1 - Iqbal Salim.
Therefore, the FIR cannot be quashed against the applicants from
Criminal Application No. 425 of 2017. Hence, we pass the following
order.
ORDER
(i) Criminal Application No. 424 of 2017 is allowed.
(ii) FIR at C.R. No. 0519 of 2016 registered against the
applicants - Afsaribegum W/o Iqbal Salim, Numan
Salim S/o Iqbal Salim, Fahim Akhtar Mohammad
Gaus & Mohammad Amjad Madin Mohammad Gaus
for the offences punishable u/s 403, 409, 420, 423,
467, 468, 471, 504, 506 & 120-B of the IPC
23 APPLN424.2017
registered with City Chowk Police Station, Tq. &
Dist. Aurangabad, is quashed.
(iii) Criminal Application No. 425 of 2017 is rejected.
(iv) It is clarified that the observations made in this
judgment are prima facie in nature and made only
for deciding the present applications.
31. Rule made absolute in the above terms.
[ A. M. DHAVALE ] [ S. S. SHINDE ]
JUDGE JUDGE
sgp
