Madras High Court
Mohamed Sulthan vs State Re. By on 29 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.17748 of 2018
1.Mohamed Sulthan
2.Kulandaivelu
3.Tamilselvan : Petitioners/A2 to A4
Vs.
1.State re. By
The Inspector of Police,
District Crime Branch,
Ramanathapuram District.
In Crime No.71 of 2008. : R1/Complainant
2.Mohamed Ismail Sahib : R2/De-facto Complainant
Prayer: Criminal Original Petition is filed under Section 482
Cr.P.C., to call for the records and quash the charge sheet in CC No.
93 of 2013 on the file of the Judicial Magistrate No.II,
Ramanathapuram as against the petitioners.
For Petitioner : Mr.N.Ananthapadmanabhan
for M/s.APN Law Associates
For 1st Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For 2nd Respondent : No appearance
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2
ORDER
This petition is filed seeking quashment of the case in CC No.
97 of 2013 pending on the file of the Judicial Magistrate No.II,
Ramanathapuram as against the petitioners.
2.The case of the prosecution in brief:-
The property in Survey No.436/1B measuring about 1.77
Acres was purchased by the father of the de-facto complainant by
name Alipulla, on 12.04.1996 from one Bathurush Mahn and after
purchase, patta was also transferred in the name of the father of
the de-facto complainant. The first accused namely Noor
Mohammed stating that the property belongs to one Pathavisal
Ammal and by impersonation sold the property to the second
accused by name Mohamed Sulthan. Later the first accused
mortgaged the property to the fourth accused on 20.04.2007,
which was also redeemed, on 29.05.2008. On the basis of the above
forged sale deed, on 30.05.2008, it was sold to the 3rd petitioner in
the sale deed, which was purchased by the father of the de-facto
complainant. In the sale deed, which was purchased by the father
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of the de-facto complainant A1 namely Mohammed Ismail Sahib
signed as a witness knowing fully well that the property was
purchased by the de-facto complainant father and also knowing
that the property does not belong to the above said Pathavisal
Ammal. In order to grab the property, he signed as witness in the
forged document also. When that was questioned by the de-facto
complainant, the above said co-accused along with A1 criminally
intimidated them. So with these allegations the 2nd respondent
lodged the complaint, based upon which, a case in Crime No.7 of
2008 has has registered against 4 accused persons. After
completing the investigation, the final report was filed making
allegations against these accused persons and more particular, final
report has been filed against these petitioners that they have
committed the above said offences.
3.After filing of the final report, A1 namely filed
Crl.OP(MD)No.18201 of 2015 and that came to be allowed by this
court, dated 07.08.2017 by following the judgment of the Supreme
Court in the case of Mohammed Ibrahin and others State of
Bihar and another [(2009)3 SCC (Cri.) 929] and also finding
that none of the allegations mentioned in the final report and none
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of the ingredients of the offence attract as against A1. It appears
that against which, no appeal has been preferred by the State or by
the de-facto complainant.
4.Heard both sides. Even though the 2nd respondent has been
served, none appears. Even in the earlier petition also, it appears
that 2nd respondent did not appear.
5.The only point, which was urged by the learned counsel
appearing for the petitioners at the time of argument is that all the
allegations that have been made by the 2nd respondent were
levelled only against A1 namely Noor Mohammed and so these
petitioners are not involved in the above said occurrence and when
the case has been quashed against A1, nothing survives to proceed
against these petitioners. It is also contended that in the above said
criminal original petition, the entire proceedings has been quashed.
But however, the trial is pending as against these petitioners.
6.On reading of the above said order shows that the
proceedings have been quashed only against A1 and not against
these petitioners.
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7.Now whatever it may be, the technical contention among all
the accused has to be taken into consideration. As mentioned by
the de-facto complainant namely the 2nd respondent in his
complaint as well as in the final report, it is seen that A1 alleged to
have played major portion in the whole transaction. According to
the prosecution, A1 having full knowledge that the property in
Survey No.436/1B did not belong to the one Pathivisal Ammal
alleged to have created forged deed by impersonating the true
owner and sold the same to A2, who is the son, on 19.11.2004. So
this is the disputed document. During the course of investigation, it
is seen that the above said originally document was not secured
and only the Xerox copy of the document obtained and produced as
Document No.3 in the list of evidence under section 156(3) Cr.P.C
along with charge sheet. The alleged role that has been allegedly
played by A1 has been negatived by this court in the above said
criminal original petition. There is no evidence collected during the
course of investigation to show that A1 also played a vital part in
the above said transaction. After purchase, A1 mortgaged the
property to the 3rd petitioner, who is A2 namely Tamil Selvan. Later
that was redeemed by A1. The first petitioner/A2 later sold the
very same property to A3 on 30.05.2008. So this is the back
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ground, which shows that A2 and A3 were not at all in the picture,
when the alleged forged document was created by A1 in favour of
the above said A4.
8.It is also seen that the Pathavisal Ammal was also not
examined as a witness during the course of investigation. One
Jafarullah Khan said to be the son of the above said Pathavisal
Ammal. The said Pathavisal Ammal is stated to be died on
07.02.2008, much after the above said sale deed, dated
19.01.2004. The complaint was lodged on 05.08.2008 namely two
days prior to the death of the said Pathavisal Ammal. The
impersonation of above said Pathavisal Ammal was taken place
after her death and before her funeral rites were preformed. The
son of the above said Pathavisal Ammal also stated that the
disputed property is survey No.436/1B did not belong to their
family.
9.So coming back to the case of the prosecution, this fact was
known to A1 and he has also signed as a witness in the document,
which was purchased by the father of the de-facto complainant,
which is dated 11.04.1996. So, no doubt that A1 played a vital role
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in the above said transaction. Since A1 has been discharged from
the criminal prosecution, the subsequent purchaser and the
mortgagee should not be directed to undergo ordinal trial. When
the charge against A1 was technically quashed, nothing going to be
served by directing the petitioners to undergo the trial process.
10.From the records, it is also seen that every efforts have
been made by this court to serve on the 2nd respondent, but finding
that knowing about the pendency of the proceedings, the 2nd
respondent did not choose to appear and contest the matter.
Moreover, it is also a basic law that forged document will not
create any document of title or right to any one. The 2nd respondent
informed that the subsequent sale deeds that have been effected
over the property and claim right. This is the settled position of law.
So in no way, the 2nd respondent might have affected. Since the
case has been quashed as against A1 by following the dictum, that
has been laid by the Hon'ble Supreme Court in the case of
Mohammed Ibrahim and others Vs. State of Bihar and
another (2009) 3 SCC 929, it need not be reproduced herein
also.
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11.For all the reasons stated above, this criminal original
petition is allowed and the impugned charge sheet in CC No.97 of
2013 on the file of the Judicial Magistrate No.II, Ramanathauram is
hereby quashed against these petitioners.
29.11.2021
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate/litigant
concerned.
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To,
1.The Judicial Magistrate No.II,
Ramanathapuram.
2.The Inspector of Police,
District Crime Branch,
Ramanathapuram District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Crl.OP(MD)No.17748 of 2018
29.11.2021
https://www.mhc.tn.gov.in/judis
