Bombay High Court
Altaf Ilahi Khan S/O Ahmed Khan vs The State Of Maharashtra And Anr on 18 January, 2021
Bench: T.V. Nalawade, M. G. Sewlikar
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Criminal Application 3775 of 2018.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 3775 OF 2018
Altaf Ilahi Khan s/o Ahmed Khan,
age 76 Years occupation pensioner,
resident of Nizam colony, Nanded. ... APPLICANT
VERSUS
1) The State of Maharashtra,
through Vazirabad Police Station,
District Nanded.
2) Abdul Shakoor Khan s/o Abdul Rauf Khan,
age 36 Years occupation service in Railway,
resident of Near Madhai Masjid,
Nanded. ... RESPONDENTS
...
Mrs. A.N. Ansari, Advocate for Applicant.
Mr. M. M. Nerlikar, APP for Respondent No.1 / State.
Mr. Pratap V. Jadhavar, Advocate for Respondent No.2
...
CORAM : T. V. NALAWADE &
M. G. SEWLIKAR, JJ.
DATE : 18th January, 2021.
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Criminal Application 3775 of 2018.odt
JUDGMENT: ( Per T. V. Nalawade, J. )
. Rule. Rule made returnable forthwith. By consent, heard
both the sides for final disposal.
2 The proceeding application is filed for relief of quashing of
charge-sheet filed in Crime No.359 of 2018, which was registered with
Vazirabad Police Station, District Nanded, for the offences punishable
under Sections 420, 465, 467, 468 and 471 of the Indian Penal Code.
The report was given by Respondent No.2.
3 The dispute is in respect of the property, which was
belonging to one Smt. Zohra Begum. Zohra Begum was real sister of
the Applicant. Respondent No.2 is son of brother of husband of Zohra
Begum. Partition had taken place of the property amongst the
husband of Zohra Begum and his two brothers like Khwaja and Abdul
Rauf. In the partition, 1 Acre 14 Guntha land had come to the share
of Abdul Rauf and to the share of Zohra Begum as per the
contentions made by the informant. Abdul Rauf died about 60 years
prior to the date of FIR and FIR was given on 24th November, 2018.
On record, Zohra Begum was shown as owner of aforesaid portion
from land Gat No.164/A.
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Criminal Application 3775 of 2018.odt
4 It is the contention of informant that Zohra Begum died in
1985 and she had no issue. It is contended that the present Applicant
applied to revenue authority to enter the property, which was standing
in the name of Zohra Begum in his name. It is contended that he
made false representation to the revenue authority that he was the
only legal heir to Zohra Begum and accordingly, mutation was made
in the property in his name and he was shown as successor of Zohra
Begum. It is contended that the property would have devolved upon
the brothers of deceased Abdul Shakoor Khan, husband of Zohra
Begum and so Applicant could not have contended that he was
successor of Zohra Begum.
5 The submissions made and record show that Zohra
Begum had executed registered sale-deed in favour of the present
Applicant in the year 1975 for valuable consideration and then his
name was mutated in the revenue record on the basis of sale-deed.
The submissions made and the say of the revenue authority show that
the name of Zohra Begum was continued on the revenue record as
one of the owners of Gat No.164/A though her share was separated
after the sale-deed and separate number was given to the said
portion. The record and the say of the revenue authority show that
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Criminal Application 3775 of 2018.odt
when Zohra Begum was not having any portion in Gat No.164/A, the
application of the aforesaid nature was given in the year 1986, after
the death of Zohra Begum and he got mutation to show that he was
successor of Zohra Begum. It is the contention of revenue authority
that this mutation could not have been made as Zohra Begum had no
portion in Gat No.164/A and she had sold her portion under the sale-
deed and so, the revenue authority is taking steps for cancellation of
the new mutation, which was made in the year 1986 in favour of the
Applicant.
6 The submissions made and the record show that the
present Applicant has filed civil suit to claim the portion, which was
shown in the name of Zohra Begum in the year 1986 and he is
claiming that portion also as successor of Zohra Begum. It can be
said that in view of the aforesaid circumstances, he may not succeed
to get that portion. What is required to be considered in the present
matter is the representation of the present Applicant to the revenue
authority that he was successor of Zohra Begum. In view of the
provisions of the Mahomedan Law, it can be said that this contention
of the Applicant was not false. The Mahomedan Law shows that after
the death of a person, first the sharers get their shares in fixed
proportion and then residuaries get remaining portion as shown in the
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Criminal Application 3775 of 2018.odt
table of residuaries and in order of succession. That is as per Sunni
Law, which is applicable in the present matter. If there are no
residuaries also then only the property will devolve upon the distant
kindred. The informant is a successor of brother of husband of Zohra
Begum. The property was given to Zohra Begum and then she gave
the property to her brother under registered sale-deed. If the
Applicant was under impression that Zohra Begum had some portion
even after selling the property to him as shown in the revenue record
and due to that impression he had made application to the revenue
authority, it cannot be said that he had intention to deceive the
revenue authority or any person. This contention that he was
successor of Zohra Begum was not false and further in revenue
record some portion was shown as belonging to Zohra Begum.
7 The Civil Court will decide the dispute between the parties
but there are aforesaid circumstances and due to those
circumstances, it cannot be said that the present Applicant made false
representation or cheated somebody and caused damage to the
informant. This Court holds that the Civil Court needs to decide the
dispute and it will be abuse of process of law if the present Applicant
is asked to face the trial for aforesaid offences. In the result, the
following order is passed:
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Criminal Application 3775 of 2018.odt
ORDER
I. The application is allowed.
II. Relief is granted in terms of prayer clause (E).
III. Rule made absolute in those terms.
[ M. G. SEWLIKAR, J. ] [ T. V. NALAWADE, J. ]
ndm
