Dr. Shaikh Gulam Rasool Papamiya vs Shamshoddin Majidkhan And Ors
2023 Latest Caselaw 2167 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

             CRIMINAL REVISION APPLICATION NO. 72 OF 2015

       Dr. Shaikh Gulam Rasool Papamiya,
       Age : 64 Years, Occ. Doctor and Agri.
       R/o. Kuran Road, Viajy Nagar, Sangamner,
       Tq. Sangamner, District Ahmednagar.              ...Applicant

                   VERSUS

1.     Shamshoddin Majidkhan,
       Age : 56 Years, Occ. Agriculture,

2.     Khalil Majidkhan,
       Age : 49 Years, Occ. Agriculture

3.     Hamid Hafiz Mahammadkhan,
       Age : 76 Years, Occ. Agriculture

4.     Mushtaq Hafiz Mahammadkhan,
       Age : 56 Years, Occ. Agriculture

5.     Rashid Hafiz Mahammadkhan,
       Age : 69 Years, Occ. Agriculture,

6.     Naim Rashid Khan,
       Age : 42 Years, Occ. Agriculture

7.     Asif Rashid Khan,
       Age : 36 Years, Occ. Agriculture

8.     Aadil Rashid Khan,
       Age : 32 Years, Occ. Agriculture

       Respondent No. 1 to 9
       R/o. Jahagirdar Mala,
       Morchudnagar, Link Road,
       Kedgaon, Ahmednagar

9.     Sau. Manjushri Nirmal Mutha,
       Age : 31 Years, Occ. Agriculture




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10.    Sonali Amit Mutha,
       Age : 37 Years, Occ. Agriculture

11.    Mangala Sharad Mutha,
       Age : 64 Years, Occ. Agriculture

12.    Pramila Ashok Mutha,
       Age : 65 Years, Occ. Agriculture

       Respondent No. 9 to 12
       R/o. 83, Maniknagar,
       Nagar-Pune Road, Ahmednagar

13.    Shri Shinde B.T.
       Age : 39 Years, Occ. Service,
       R/o. Ahmednagar.

14.    Sharad Zoting,
       Age : 49 Years, Occ. Service,
       II-Sub-Registrar Office,
       Ahmednagar.                                              ..Respondents

                                    ......
                Mr. Balasaheb N Magar, Advocate for applicant.
                Mr. Narayan B. Narwade Advocate for Respondent No.13.
                Mr. A.P.Bhandari, Adv. h/f Mr. R.R. Sancheti for
                Respondent Nos. 9 to 12.
                Mr. Kalkasaheb J. Tandale, Adv. h/f Mr. P.S. Pawar,
                Advocate for Respondent Nos. 1 to 8
                Mr. Dhananjay M. Shinde, Advocate for Respondent No.14.

                                .......

                                  CORAM : S. G. MEHARE, J.

                                  Reserved on        : 24.01.2023
                                  Pronounced on :    :.06.03.2023.

JUDGMENT :

1. The applicant/complainant impugned the order of the learned

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Chief Judicial Magistrate, Ahmednagar below Exh. No.1 in R.T.C. No.

344/2011 dated 16.02.2015 dismissing the complaint under Section

203 of the Code of Criminal Procedure. (Cr.P.C. for short)

2. Heard the counsel for applicant and the learned counsels

for respondents.

3. The brief facts of the case were that the applicant had

preferred a complaint under Section 200 of the Code of Criminal

Procedure alleging that the respondents/accused No.1 to 8 managed to

delete the entry of name of his mother from 7/12 extract and then

sold the property from Survey No.60 of village Nalegaon Taluka and

District Ahmednagar with a view to deprive right of the applicant. The

dispute between the applicant and respondents No.1 to 8 has a

chequered history of filing civil suit for partition. The civil suit of the

applicant for partition was dismissed. However, his appeal was allowed

by the District Court. This Court dismissed the Second Appeal of

respondents No. 1 to 8. They have preferred the Special Leave Petition

before the Hon'ble Supreme Court and on the date of filing of the

complaint it was pending. When the alleged forgery was committed,

the execution of partition decree before the Revenue Authority was in

progress.

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4. The allegations in brief are that all accused in conspiracy with

the Revenue Officer and Sub Registrar deliberately forged the 7/12

extract and executed a sale deed of the portion of land Gut No. 60

without partition and thereby committed an offence punishable under

Sections 420, 409, 463, 465, 466, 467, 468, 469, 471 read with

Section 34 of the Indian Penal Code.

5. The verification statement of complainant was recorded

on affidavit. Considering his statement and the material placed on

record, the learned Chief Judicial Magistrate, Ahmednagar, instead of

making enquiry himself, directed the police to make an enquiry under

Section 202 of the Cr.P.C. The police made a thorough investigation

and submitted a report under Section 202 of the Code of Criminal

Procedure in the Court. In the report it has been disclosed that the

name of the mother of the applicant was deleted from the 7/12

extract, however, it was deleted inadvertently. The investigating officer

has gone through the documents and opined that the entire land from

Gut No. 60 was not sold but only 2 Hector 43 R of land from the

western side was sold by the respondents No. 1 to 8 to the remaining

respondents. He has also opined that the entry in the 7/12 extract is

not a document of title. The Sub-Registrar has no power to examine

the title. The name of the mother of complainant was again added in

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Revenue record.

6. The learned Chief Judicial Magistrate, Ahmednagar heard the

learned counsel for the complainant and considered the documents

placed on record as well as the report under Section 202 of the Code of

Criminal procedure submitted by the police and held that :-

"It reflect from the complaint that there is Civil dispute between the complainant and the accused. The complainant is trying to drag the said litigation and converted it into the Criminal litigation. If the complaint has given about the deletion of the name of his mother from the 7/12 extract, then he ought to have file the Appeal or other proceeding before the Revenue Authority. He cannot drag Gav kamgar Talathi in Criminal Court,because under the official capacity being the Talathi, he passed the order and deleted the name of mother of the complainant. Therefore, without availing remedy of appeal before appropriate authority, the complainant cannot drag Gav kamgar Talathi in Criminal Court. According to the complainant Gut No 60 was allotted to his share. However, it is well settled law that notice of lis pendens itself did not declare the document of the sale deed illegal or did not prohibit Registrar to register the sale deed. Admittedly, the civil litigation is pending and therefore, if consider the complaint as it is, it seems that prima facie no offence is made out against the accused. Therefore, the complaint is liable to be dismissed under Section 203 of the Code of Criminal Procedure. I,

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therefore, pass the following order. Accordingly, the complaint was dismissed under Section 203 of the Code of Criminal Procedure."

7. The applicant in person has argued at length. Pointing out the

history of litigation, he would argue that the name of his mother was

deleted only for the purpose of execution of the sale deed in conspiracy

with the revenue authority. The registering authority ought to have

noticed the lis pendens notice registered with it. The Talathi has

played a fraud. His explanation was that the name of his mother was

inadvertently deleted has no base. However, the learned Chief Judicial

Magistrate, Ahmednagar did not consider the material collected by the

police during the enquiry under Section 202 of the Code of Criminal

Procedure as well as the documents placed by him on record. There is

apparent error on the face of record.

8. The learned counsel for the respondent No.14 Sub Registrar has

argued that the role of the Sub Registrar is limited. The notice of the

lis pendens does not prohibit him from registering the document. No

relief was sought under Section 156(2) of the Code of Criminal

Procedure. The allegations levelled against the respondents do not

constitute alleged offence. The parties might have committed crime

but not the Sub Registrar. No offence is made out against the Sub

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Registrar.

9. The learned counsel for respondent No.13 has vehemently

argued that it was purely a civil litigation, therefore, the learned Chief

Judicial Magistrate, Ahmednagar has correctly dismissed the

complaint. The entry in the name of the mother of the applicant was

cancelled. There is no substance in the petition. Hence, the petition

may be dismissed.

10. The Advocate for the respondent Nos. 1 to 8 has adopted

the arguments of other respondents.

11. It appears from the impugned order that,the learned Chief

Judicial Magistrate was of the opinion that there should be no

simultaneous proceeding under the Civil and Criminal law. It is settled

law that the aggrieved person has both the remedies under Civil as

well as Criminal law. The civil remedy is expected to be opted by the

applicant by the learned Chief Judicial Magistrate does not include the

sentence of imprisonment and fine for criminal proceeding is not

always commensurate the reliefs in a civil suit. Since the law does not

debar the aggrieved to proceed both in Civil Court as well as Criminal

Court, the impugned order appears apparently erroneous.

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12. As far as the power under Section 203 of the Code of

Criminal Procedure is concerned, the Court is bound to go through the

report if called under Section 202 of the Code of Criminal Procedure.

There are number of statements on record supporting the documents.

The Chief Judicial Magistrate is of the opinion that the Magistrate can

dismiss the complaint only when he is of the opinion that there is no

sufficient ground for proceeding. Perusal of the documents placed on

record, statements of the witnesses, the applicant, and the evidence

collected by the police along with the document of correction deed

prima facie shows that at the time of the alleged sale deed, the 7/12

extract attached to the sale deed did not have the entry in the name of

the mother of the complainant. Firstly, the sale deed was registered

deleting the name of the mother of the applicant on 7/12 extract, then

the correction deed was registered with the Sub-Registrar, explaining

that the entry of the name of the mother of the applicant was

inadvertently deleted. Record prima facie reveals that some mess has

been created by the revenue officer i.e. the Talathi in conspiracy with

the remaining non-applicants. Prima facie sufficient ground is

available to proceed with the matter. However, the learned Chief

Judicial Magistrate, Ahmednagar ignored the documents placed on

record and passed the impugned order which is illegal, incorrect and

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improper, therefore, it needs to be set-aside. Hence, the following

order.

                                 ORDER

(i)      The revision Petition is allowed.

(ii)     The impugned order dated 16.02.2015 passed by the learned

Chief Judicial Magistrate, Ahmednagar is quashed and set

aside.

(iii) The complaint be remitted back to the learned Chief Judicial

Magistrate, Ahmednagar.

(iv) The learned Chief Judicial Magistrate, Ahmednagar shall issue

process against the respondents except Sub-Registrar for the

offences made out from the record, within a month from the

receipt of this writ.

(v) Both parties are directed to remain present before the learned

Chief Judicial Magistrate Ahmednagar on 21st of March,

2023.

(vi) Record and proceedings be returned to the Court of learned

Chief Judicial Magistrate, Ahmednagar.

( S. G. MEHARE ) JUDGE ysk