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2017 DIGILAW 853 (MP)

Shakil Khan v. State of M. P.

2017-07-21

VED PRAKASH SHARMA

body2017
ORDER 1. This revision under section 397/401 of the Code of Criminal Procedure, 1973 (for short 'The Code') is directed against judgment and order dated 24.6.2016 passed by Additional Sessions Judge, Shajapur in S.T. No. 115/2012 whereby charges for offence under sections 419/120B, 420/120B, 467/120B and 468/120B have been framed against petitioner Shakil Khan. 2. Prosecution against the petitioner and some other persons including Ashutosh Khandelwal, Mahesh Chandra was lauched on the basis of the complaint made by Smt. Batul Bi , on 23.11.2011 to the effect that one Shakila Bi, in a fradulent and dishonest manner impersonating herself as Batul Bi, executed sale deed with regard to survey No.801 area 0.58 hectare and survey No.1065 area 0.78 hectare. It is alleged that one Ashutosh Khandelwal and present petitioner Shakil Khan were the attesting witnesses of the sale deeds which was executed in favour of one Mahesh Chandra. 3. Learned counsel for the petitioner submits that Ashutosh Khandelwal and Mahesh Chandra have preferred a petition under section 482 of 'The Code' before this Court bearing Miscelleneous Criminal Case No. 9996/2015 feeling aggrieved by order dated 2.9.2015 whereby summons were issued against them as well as against the petitioner Shakil Khan on an application moved by the prosecution under section 319 of 'The Code'. It is further submitted that this Court, vide order dated 29.2.2016 , was pleased to quash the proceedings qua-petitioners Ashutosh Khandelwal and Maheshchandra holding that prima facie no case is made out against them. It is further submitted by the learned counsel for the petitioner that petitioner is having complete parity with Ashutosh Khandelwal because it was alleged that Ashutosh and present petitioner Shakil Khan were attesting witnesses of the alleged sale deeds, therefore, petitioner also deserve the same treatment which has been given to Ashutosh Khandelwal by this Court in Miscellenous Criminal Case No. 9996/2015. 4. Learned counsel for the State has not disputed that Ashutosh Khandelwal and petitioner Shakil Khan were attesting witnesses of the sale deed which was allegedly executed by Shakila, impersonating herself as Batul Bi, in favour of the Maheshchandra and that prayer made for quashment of proceedings by Ashutosh Khandelwal has already been granted, vide order dated 29.2.2016 passed in Miscellenous Criminal Case No. 9996/2015 by a Co-ordinate Bench of this Court. 5. 5. Relevant part of the order dated 29.2.2016 passed in Miscellenous Criminal Case No. 9996/2015 runs as under :- “04 Per contra, Counsel for the respondents has fully supported the impugned order and placed reliance on G.S.Bansal v. The Delhi Administration: [ AIR 1963 SC 1577 ] (V.50 C 33), whereby the apex Court has held that the attesting witness endorsing Post Office National Saving Certificates by signing the name of the deceased and the heir commits forgery. Similarly Counsel relied on Holar v. State of Haryana [ AIR 1973 SC 1413 ], whereby the apex Court has held that in absence of any evidence to support it, a new case cannot be allowed to be set up in appeal and had also held that the accused appellant was Lambardar of the village Biholi and he expected to know Chauksa when he identified her and there is no evidence to indicate that the appellants had made a representation to him that Phulpati, whose face was covered by a veil, was her sister Chauksa and that the appellant innocently believed the statement and made the identification. Hence, counsel for the respondent has vehemently submitted that in the present case also there is no evidence to indicate that the accused had pleaded otherwise. Counsel for the respondent has vehemently urged that the Trial Court's judgement categorically mentioned that it is to be believed that the witness of agreement was a witness to the person signing the agreement and there is a presumption regarding the same. Therefore, counsel prayed that the petition is without merit and same be dismissed. 05. Considering the above submissions and considering the impugned order, I find that the petitioner No.1 Ashutosh in paragraph 4 of his statement has categorically stated that he was only the attesting witness of the sale deed and he had only seen a veiled woman signing on the sale deed. Whereas she has appeared before the Registrar unveiled and the police have also exonerated the present petitioners. It is also deposed by the petitioner that the name of the complainant Betul Bi or the accused Shakila Bi were not known to him. There is no allegation that the present petitioners have been committed any forgery, whereas they have been alleged to have identified the accused Shakila Bi as Betul Bi. It is also deposed by the petitioner that the name of the complainant Betul Bi or the accused Shakila Bi were not known to him. There is no allegation that the present petitioners have been committed any forgery, whereas they have been alleged to have identified the accused Shakila Bi as Betul Bi. At the moment there appears no material evidence on record to indicate that the present accused have identified Shakila Bi as Betul Bi. Under these circumstances, placing reliance on Kailash (supra), and Brindaban Das (supra), I find that the petition is required to be allowed. The impugned order stands quashed and set aside. However, it is made clear that if the trial Court comes in possession other incriminating material evidence not placed before this Court or the trial Court the respondent prosecution shall be free to move a fresh application under section 319 of the CrPC. 06. With the observations and directions, the present petition is allowed to the extent herein above indicated.” 6. In view of the aforesaid, the petition deserves to be and is hereby allowed and the charges under sections 419/120B, 420/120B, 467/120B and 468/120B qua-petitioner Shakil Khan are hereby quashed and he is discharged of the same.