[Cites 14, Cited by 0]
Bombay High Court
Shaikh Subhan Shaikh Dada vs The State Of Maharashtra And Another on 26 February, 2026
2026:BHC-AUG:8458
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-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 24 OF 2021
Shaikh Subhan s/o Shaikh Dada,
Age : 55 years, Occ. : Business,
R/o. : House No. 1235, Gavlipura,
Chawni, Aurangabad. ... Revision Petioner
Versus
1. The State of Maharashtra,
Through Police Inspector, Police Station,
City Chowk, District Aurangabad.
2. Sudam s/o Wamanrao Rajbhoj,
Age : 77 years, Occ. : Pensioner,
R/o. Pradnya Niwas, Jaswantpura,
Aurangabad. ... Respondent
[R-2 is accused]
.....
Mr. Saeed S. Shaikh, Advocate for the Revision Petitioner.
Mr. N. R. Dayma, APP for Respondent No.1-State.
Mr. S. D. Hiwrekar, Advocate for Respondent No.2
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 10.02.2026
Pronounced on : 26.02.2026
ORDER :
1. Revisionist, original informant, hereby takes exception to the
judgment and order dated 20.05.2019 passed by learned Sessions
Judge, Aurangabad in Criminal Appeal No. 143 of 2015, by which
judgment and order of conviction passed by learned J.M.F.C. dated
29.08.2015 has been interfered with.
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2. In short, prosecution was launched against present respondent
on report lodged by City Chowk Police Station, Aurangabad for
commission of offence under Sections 420, 468, 465, 467 and 471 of
IPC on the basis of F.I.R. by one Shaikh Subhan Shaikh Dada, i.e.
present revisionist, who alleged that, land admeasuring 11 acres 12
guntha was a tenancy land in possession of his grandfather Shaikh
Ismail Shaikh Chand. After demise of his grandfather, land was duly
transferred in the name of his father, during whose lifetime CTS No.
222 was granted and also PR Card was duly issued. It is his case that
both, his grandfather and father, had got land converted from
agricultural to non-agricultural and had sold plots. That, to the north
of his land was a kabrastan (graveyard) in Survey No. 7/2 beyond
which there was land Survey No. 7/1 owned and possessed by
Peoples Education Society.
3. It was his specific complaint that, on the strength of bogus sale
deed, present respondent-original accused projected that he
purchased land admeasuring 6750 sq. meters out of Survey No. 7/1
i.e. vide sale deed dated 06.01.1975 and by colluding with City
Survey and Land Records Authorities, said land was shown to be part
of CTS No. 222. Thus, fraud has been played on the strength of forged
documents and he has been cheated.
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4. On report to that extent, crime was registered bearing no. 114
of 2006 for above referred offences and present respondent was made
to face trial before learned J.M.F.C. vide R.C.C. No. 1804 of 2008
which ended up in conviction under Sections 417, 465, 468 and 471
of IPC, but on appeal being preferred before the court of Sessions, the
appeal came to be allowed and present respondent came to be
acquitted.
Dissatisfied and aggrieved by the above order of acquittal,
complainant has preferred instant revision.
5. Here, apparently by invoking 397 r/w 401 of Cr.P.C.,
revisionary powers of this Court are invoked and therefore, before
dealing with the merits, it would be fruitful to give brief account of
the settled legal position and judicial precedent while exercising
revisionary powers.
6. By umpteen judgments, scope of Section 397 Cr.P.C. has been
time and again reiterated. Though there are catena of judgments, the
landmark judgment of Amit Kapoor v. Ramesh Chander and another
(2012) 9 SCC 460 is relied and the relevant observations therein are
borrowed and quoted as under :
"12. Section 397 of the Code vests the court with the power
to call for and examine the records of an inferior court for
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the purposes of satisfying itself as to the legality and
regularity of any proceedings or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well -founded
error and it may not be appropriate for the court to
scrutinise the orders, which upon the face of it bears a token
of careful consideration and appear to be in accordance with
law. If one looks into the various judgments of this Court, it
emerges that the revisional jurisdiction can be invoked
where the decisions under challenge are grossly erroneous,
there is no compliance with the provisions of law, the
finding recorded is based on no evidence, material evidence
is ignored or judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes, but are merely
indicative. Each case would have to be determined on its
own merits.
It is fairly settled position that, retrial, fresh trial or de novo
trial is to be directed only in exceptional circumstances and when
miscarriage of justice has occasioned due to any irregularity, error or
omission. It would be fruitful to rely on the judgment of the Hon'ble
Apex Court in the case of Pandit Ukha Kolhe v. State of Maharashtra
(1964) SCR 926, wherein it has been observed as under :
"An order for retrial of a criminal case is made in exceptional
cases, and not unless the appellate court is satisfied that the
Court trying the proceeding had no jurisdiction to try it or
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that the trial was vitiated by serious illegalities or
irregularities or on account of misconception of the nature of
the proceedings and on that account in substance there had
been no real trial or that the Prosecutor or an accused was,
for reasons over which he had no control, prevented from
leading or tendering evidence material to the charge, and in
the interests of justice the appellate Court deems it
appropriate, having regard to the circumstances of the case,
that the accused should be put on his trial again. An order of
re-trial wipes out from the record the earlier proceeding, and
exposes the person accused to another trial which affords
the prosecutor an opportunity to rectify the infirmities
disclosed in the earlier trial, and will not ordinarily be
countenanced when it is made merely to enable the
prosecutor to lead evidence which he could but has not
cared to lead either on account of insufficient appreciation of
the nature of the case or for other reasons."
Similar views are echoed in the case of State of M.P. v. Bhooraji
and others (2001) 7 SCC 679.
7. In the instant case, on one hand, case of prosecution was that,
accused Sudam Wamanrao Rajbhoj, in spite of knowing that there
was no land in Survey No.7 due to division of the land in favour of
Muslim graveyard (Survey No. 7/2), and the other part being owned
by Peoples Education Society (Survey No.7/1), on the strength of
manufactured documents, shown the sale deed to be executed
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between accused and one Rahmat Ali Khan of a plot admeasuring
6750 sq. meters. There was tampering with original record,
fabrication of forged sale deed and hence the above accusations for
commission of above offence.
8. Before the learned J.M.F.C., present respondent resisted the
above prosecution asserting a case that there was a legal and valid
transaction between him and Rahmat Ali Khan i.e., on due
verification of record available at City Survey office all Revenue
authorities have recognized him to be an owner and occupier.
Necessary corrections and rectification were done by concerned
authorities and not by him and thereby prayed to acquit him from all
charges. Learned J.M.F.C. seems to have appreciated the oral account
of seven witnesses comprising of complainant himself, officials of City
Survey office, handwriting expert, Secretary of the kabrastan
committee etc. and reliance was also placed on inquiry register,
original City Survey record, maps, handwriting expert's opinion, 7/12
extracts, PR Card, judgments of civil court's proceedings, including
the judgment of this court in Second Appeal. On appreciation of
above evidence, learned J.M.F.C. seems to have convicted present
respondent for offence under Sections 417, 465, 468 and 471 of IPC,
and acquitted him from charge under Sections 420 and 467 of IPC.
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9. Learned Sessions Judge in appeal re-appreciated the evidence
and, by a reasoned order, allowed the appeal of present respondent
setting aside the judgment of learned J.M.F.C. Thereupon, learned
first appellate court took into account the substantive evidence of
above witnesses and recorded a finding that, the evidence did not
comprise of essential ingredients of cheating as required under
Section 415 of IPC. In view of said charge, it was expected of
prosecution to prove that by deceiving the complainant and by further
playing fraud with dishonest intention, complainant was induced to
deliver property to him, or complainant was intentionality induced to
omit to do anything which he would not have done or omitted it to be
done, if so not deceived. Therefore, here, there was no evidence to
show how informant was deceived in the transaction which took place
between Rahmat Ali Khan and accused. What damage has been
caused to the complainant due to the transaction between above two
persons has primarily not been demonstrated. On the contrary, in
cross, complainant seems to have admitted that accused purchased
land in question from Rahmat Ali on 06.01.1975. He has admitted
that there were other several purchasers of the said land and they had
verified all documents. He admitted that, neither he nor his father
filed any claim for cancellation of sale deed executed by Rahmat Ali in
favour of respondent. He is also unable to state whether necessary
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charges for conversion of land from agricultural to non-agricultural
were paid. What loss complainant suffered due to alleged transaction
between accused and Rahmat Ali is also not elaborated or clarified.
Therefore, primarily the essential ingredients for attracting Section
417 for which there was conviction by learned J.M.F.C. not being
available, as evidence was missing to that extent, learned first
appellate court rightly interfered in above findings.
10. As regards to commission of forgery and manufacturing of
record is concerned, there was evidence of PW2 Vasant- Additional
City Survey Officer and he, in his evidence at Exhibit 16, on the
strength of the record, stated that Rahmat Ali Khan was recorded as
the holder of the land and by virtue of order in appeal before the
Superintendent of Land Records, name of accused has been
incorporated. All entries were attested by the officers. He admitted in
cross that, owner of the land City Survey No. 233 in the year 1971
was Rahmat Ali Khan and there was no dispute to that extent. He also
admitted that accused had paid survey fees after which their office
had sent notice to the surrounding land owners.
11. Though prosecution has taken efforts to examine handwriting
expert as PW3, in cross he categorically admitted that he is unable to
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state whether the same officer signed on Chalta no. 2. Rather it
carried signature of Special District Land Record Inspector and it had
seal of the office and it bears date 06.03.1971 below the signature.
12. PW4 also in his evidence, though stated that accused showed
his own land in the land of Dada Shaikh, and this further led to civil
litigation which traveled up to Hon'ble Apex Court, he admitted in
cross that he did not give statement to police that accused had shown
the land purchased in his own name by tampering with the record.
Even Investigating Officer admitted about not obtaining opinion of
Land Record office regarding tampering.
13. For proving charge of forgery, there was no evidence that
accused had fraudulently caused Rahmat Ali to execute sale deed in
his favour. On the strength of evidence of authorities from Land
Record, it cannot be said that accused had carried out correction or
rectification in the record. Therefore, necessary ingredients of forgery
also were not proved beyond reasonable doubt.
14. Viewing the available evidence with legal lens, the essential
ingredients for attracting the charges were not available and therefore
charges were not proved beyond reasonable doubt. Further, it is
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settled legal position that revisional court cannot sit as an appellate
court and start re-appreciating the evidence to detect inconsistencies
in the statements of witnesses. It is only to be seen whether there is
error of law which is patently illegal, whether any procedural error
had crept in at the hands of subordinate court or whether material
has been overlooked.
15. Section 401(3) of Cr.P.C., which reads "Nothing in this section
shall be deemed to authorize a High Court to convert a finding of
acquittal into one of conviction." bars turning acquittal into
conviction except only in exceptional circumstances. There are catena
of judgments on this point. In the instant case, no such exceptional
circumstances are made out, nor it could be pointed out how learned
Sessions Court erred or committed perversity in acquitting the
accused. No case being made out, following order is passed :
ORDER
The revision is dismissed.
[ABHAY S. WAGHWASE, J.]
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