Karnataka High Court
Sri Mehaboob vs Sri. Rukmuddin on 7 May, 2024
-1-
CRL.RP No.100096 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 07TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO.100096 OF 2017
BETWEEN:
SRI. MEHABOOB
S/O RAJESAB JAMADAR
AGED ABOUT 53 YEARS
OCC: CIVIL CONTRACTOR
R/O NEAR PANKA MASJID, BAGALKOT
...PETITIONER
(BY SRI. T M NADAF, ADVOCATE)
AND:
1. SRI. RUKMUDDIN
S/O ABDULGANI @ GANISAB SAUDAGAR
AGED ABOUT 73 YEARS
OCC: RETD. VILLAGE ACCOUNTANT
R/O MUJAWAR CHAWL, STATION ROAD
BAGALKOT
2. THE STATE OF KARNATAKA
REPRSENTED BY SPP
HIGH COURT OF KARNATAKA BUILDINGS
DHARWAD
AMENDMENT CARRIED OUT AS PER COURT ORDER DATED
28/03/2017.
...RESPONDENTS
(BY SRI. PRAVEEN, HCGP FOR R2;
SRI. S B HEBBALLI, ADVOCATE FOR R1)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT IN
CRIMINAL APPEAL NO.91/2010 DATED 20.02.2017 ON THE FILE
OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, BAGALKOT AND
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
20.10.2010 IN C.C.NO.1/2008 ON THE FILE OF CHIEF JUDICIAL
MAGISTRATE, BAGALKOT AND ETC.,
-2-
CRL.RP No.100096 of 2017
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD THROUGH PHYSICAL HEARING / VIDEO
CONFERENCING HEARING AND RESERVED ON 12.02.2024
BEFORE THE PRINCIPAL BENCH OF BENGALURU, COMING ON
FOR PRONOUNCEMENT OF ORDER, THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner herein being aggrieved by the
judgment of conviction and order of sentence dated 20.10.2010
in C.C.No.1/2008 on the file of the Chief Judicial Magistrate,
Bagalkot and its confirmation order dated 20.02.2017 in
Criminal Appeal No.91/2010 on the file of the Principal District
and Sessions Judge, Bagalkot, has preferred this revision
petition.
2. The rank of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case are as under:-
3. The complainant and his two brothers are said to be
the owners of the property bearing C.T.S. No.547/A situated at
Ward No.2 of Bagalkot city measuring 91.14 sq.mtrs., out of
which, 18 ft. x 20 ft. is an open site and remaining portion is
having residential building. The father of the complainant
during his life time in the year 1976, sold an open space to
Sri Abdul Rehmansab Mehboobsab Khureshi. The said Khureshi
had sold the property in the year 1991 to the accused No.1.
4. The father of the complainant died on 22.05.1990.
After death of his father, the complainant shifted to Badami as
he was working as Revenue Officer and other two brothers
were also shifted to different places. The property has been
submerged under the Upper Krishna Project of Almatti on
15.02.1996. The accused No.2 being a Land Acquisition Officer
passed an award and valued the entire property for
Rs.3,93,150.42 ps. The said award was passed jointly in the
name of Abdulgani and Mehaboobsab Jamadar.
5. It is further submitted that accused Nos.1 and 2
created false documents and succeeded in modifying the earlier
award. To get the modified award, both accused Nos.1 and 2
prepared false affidavit and filed an application in the name of
the father of the complainant, produced before the authority on
04.12.1999. However, the father of the complainant died on
22.05.1990. Further, both the accused created false
panchanama on 21.09.1999 and claiming that the accused No.1
constructed a building and obtained compensation to the
building portion knowingly that it was not constructed by him.
Therefore, a private complaint came to be registered against
accused Nos.1 and 2 for having colluded and fraudulently
obtained compensation which was legally payable to the father
of the complainant. Upon registration of complaint, the said
complaint was referred to the jurisdictional police for
investigation, the jurisdictional police after conducting the
investigation, submitted the charge sheet.
6. Heard Sri T.M.Nadaf, learned counsel for the
petitioner, Sri.S.B.Hebballi, learned counsel for respondent
No.1 and Sri Praveen Y.Devareddiyavara, learned High Court
Government Pleader for the respondent No.2 - State.
7. It is the submission of learned counsel for petitioner
that the concurrent findings recorded by the Courts below in
recording the conviction is erroneous and not proper, therefore,
it is liable to be set aside.
8. It is further submitted that even though the
jurisdictional police filed 'B' report, the Trial Court took
cognizance stating that accused Nos.1 and 2 have committed
offences under Sections 468 and 471 r/w Section 34 of Indian
Penal Code (for short 'IPC') without passing any order
regarding rejection of the said report which is erroneous and
not proper.
9. It is further submitted that Ex.P6 stated to have
been produced before the authority to get the compensation
which does not disclose as to who has produced the said
document before the authority. The thumb impression found
on the document has not been sent to FSL for clarification. In
the absence of the said clarification, it cannot be said that the
accused No.1 had affixed the thumb impression on behalf of the
father of the complainant.
10. It is further submitted that the evidence of DWs.1,
2 and 3 are consistent that the accused No.1 was in possession
of the building situated in the alleged place. However, the Trial
Court failed to take note of the said evidence and also failed to
take note of the mahazar conducted by the authority.
11. It is further submitted that the complainant has not
produced any document to show that the building was
constructed by his father during his lifetime and he was
regularly paying the tax to the authority or regularly paying the
electricity charges to the concerned authority. Mere stating
that he is the absolute owner of the house property is not
sufficient to conclude that he was the owner of the house
property. However, the Trial Court and the Appellate Court
failed to take note of this aspect and recorded the conviction
which is not proper and also inappropriate, therefore, the
concurrent findings have to be set aside. Making such
submission, learned counsel for petitioner prays to allow the
petition.
12. Per contra, learned counsel for respondent No.1
vehemently justified the concurrent findings and submitted that
Ex.P6 affidavit was filed by the accused in order to obtain
compensation in respect of house property situated in the
disputed property, even though the accused No.1 was not the
owner of the said house property. Moreover, the said affidavit
is filed in the name of the dead person on 04.12.1999. In fact,
the father of the complainant died in the year 1990 itself.
13. It is further submitted that the Trial Court and the
Appellate Court after appreciating the oral and documentary
evidence on record, recorded the conviction properly and it is
not appropriate to interfere with the said findings. Moreover,
the scope of revision is very limited, the Revisional Court
cannot traverse beyond its scope. Making such submission,
learned counsel for respondent No.1 prays to dismiss the
petition.
14. Learned High Court Government Pleader for
respondent No.2 - State vehemently justified the judgments of
the Courts below and adopted the arguments of learned
counsel for respondent No.1 and prays for dismissal of the
petition.
15. After having heard learned counsel for the
respective parties and also perused the findings of the Trial
Court and the Appellate Court, now it is relevant to refer not
only the facts of the case, but also the evidence of all the
witnesses to arrive at a conclusion as to whether any error
committed by the Courts below in appreciating both oral and
documentary evidence on record.
16. It is an admitted fact that the complainant is also
one of the co-sharers of the property which was submerged
under the Upper Krishna Project. According to complainant, his
father had constructed a house in the property situated at
Bagalkot city and remaining half portion was sold to the vendor
of the accused. Thereafter, the vendor sold the property to the
accused No.1 for valuable consideration.
17. Admittedly the property was submerged and
compensation was awarded jointly in respect of the entire
property in the name of both the father of the complainant and
accused No.1. Ex.P5 is the order passed by the Special Land
Acquisition Officer. As per the said order, the accused No.1
was the owner of the house property situated in the property
No.CTS 547-A of Bagalkot city. The said order has been passed
on 21.10.1999. However, Ex.P6 stated to have been produced
before the authority on 04.12.1999. No doubt, the said
document contained the thumb impression of the executant.
According to the complainant, the said executant died on
22.05.1990, that is much prior to filing of the affidavit. Be that
as it may, the panchanama which was conducted by the
authority before passing an award on 21.09.1999 in the
presence of the witnesses. As per the said panchanama, the
house property belongs to accused No.1. The Special Land
Acquisition Officer passed an award on the strength of the
panchanama which is marked as Ex.P8 on 21.09.1999.
18. In order to attract the ingredients of Section 468 of
IPC, the basic elements of forgery which are required to be
established are,
i) the making of false document or part of it;
ii) such making should be with such intention as is
specified in the section
(a) to cause damage or infringe to
(i) the public, or
(ii) any person.
(b) to support any claim or title, or
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express
or implied contract, or
(e) to commit fraud or that fraud may be
committed.
In the present case, even though the allegations made
against accused No.1 that he submitted the affidavit before the
authority to get compensation under the Upper Krishna Project
in the name of the father of the complainant, except
complainant, no other witnesses have deposed that the accused
No.1 had produced the affidavit. Moreover, DWs.1, 2 and 3 are
consistent that DW.1 was the owner of the house property.
DW.1 produced several documents relating to the house
property and he was regularly paying the tax and electricity bill
to the concerned authority. Thus being the fact, I am of the
considered opinion that both the Courts have committed error
in holding that the accused No.1 obtained compensation
fraudulently even though he was not owner of the house
property.
- 10 -
19. Further the Trial Court and Appellate Court recorded
the conviction for the offence under Section 471 of IPC which
states that, whoever fraudulently or dishonestly uses as
genuine any document or electronic record which he knows or
has reason to believe to be a forged document or electronic
record, shall be punished in the same manner as if he had
forged such document or electronic record. In the present
case, even though several notices having been issued to the
father of the complainant regarding call for objections for fair
compensation, none of the family members came forward to
file objections and nobody present at the time of
conducting mahazar of the place which was submerged in the
said project. Though, it appears that the compensation has
been bifurcated on the strength of Ex.P6, whether the said
affidavit has been filed by the accused No.1 or not has not been
established by the prosecution. Moreover, the award as per
Ex.P5 was passed on the strength of Ex.P8 - mahazar. The
evidence of DWs.2 and 3 further corroborated the documentary
evidence regarding ownership of the house property. In the
absence of specific evidence regarding the intention of cheating
by producing the false document, conviction ought not to have
been recorded. In my considered opinion, both the Courts
- 11 -
have committed error in recording the conviction even though
the ingredients of the above said provisions are not established.
20. In the light of the observations made above, I
proceed to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence dated 20.10.2010 passed in
C.C.No.1/2008 by the Chief Judicial Magistrate,
Bagalkot and the judgment and order dated
20.02.2017 passed in Crl.A.No.91/2010 by the
Principal District and Sessions Judge, Bagalkot,
are set aside.
(iii) The petitioner is acquitted for the offence under
Sections 468 and 471 r/w Section 34 of IPC.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
Bss
