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Madhya Pradesh High Court · body

2020 DIGILAW 688 (MP)

Prakashchand Agrawal v. State Of M. P.

2020-06-24

J.P.GUPTA

body2020
JUDGMENT J.P.Gupta, J. - This order shall govern the disposal of aforesaid both cases as these cases are arising out of the common criminal proceedings pending against the petitioners in the court below. 2. This petition under Section 482 of Cr.P.C. has been preferred for quashment of proceedings of S.T. No.449/2011 pending in the court of 9th Additional Session Judge, Jabalpur arising out of Crime No. 412/2009 registered at Police Station Omti, Jabalpur, for the offence punishable under Sections 420, 465, 468, 471 and 120-B of the IPC against the petitioners. 3. The facts, in brief, giving rise to these petitions are that the property bearing plot no. 567, diversion sheet no. 155-B, area 30390 Sq. ft., is situated at Mouza Subhash Nagar, Wright Town, in Subhadra Kumari Chouhan Ward, Jabalpur, upon which, old house nos. 2155, 2156 and 2157 are constructed, about which, petitioner Prakashchand Agrawal had entered into an agreement with Saiyad Wahidul Haq S/o. Saiyed Abdul Gafoor, for purchasing and in this regard, on 19.7.2002 an agreement was executed between both the parties. Before execution of sale deed, on 21.2.2003 Saiyad Wahidul Haque had died. Saiyad Wahidul Haq disclosed to petitioner Prakashchand Agrawal that the aforesaid property was the ownership of his father Late Saiyed Abdul Gafoor and on the basis of Will dated 10.04.1944 he shown himself to be the sole owner of the property in question. After the death of Saiyad Wahidul Haq, his two daughters namely Kaneez Aisha and Kaneez Fatima, who were not initially agreed to execute the sale deed in favour of the petitioner Prakashchand Agrawal but later on, on the condition of payment of further additional amount as consideration, both were agreed to execute the sale deed and in this regard, an agreement was made by Kaneez Aisha, by getting Rs.10 lacs in advance through bank transaction. However, later on, the sale deed was not executed by Kaneez Aisha and Kaneez Fatima. 4. However, later on, the sale deed was not executed by Kaneez Aisha and Kaneez Fatima. 4. On the other hand, on the basis of getting their name mutated in the revenue papers in place of Makbool Begum W/o. Saiyad Abdul Gafoor, other accused persons sold the land by preparing separate sale deed for a separate portion of the land to various persons as on 3.11.2005 co-accused Smt. Jameela Begum and Smt. Shaheen sold out the land to Jogindar Kaur W/o. M. S. Gujral and Smt. Kanak Lakhoutiya and on 22.11.2005 co-accused Smt. Iqbal Jehan sold out the land to the aforesaid Jogindar Kaur and Smt. Kanak Lakhoutiya and on 22.11.2005 co-accused Smt. Shahida Begum, Nurul Haq, Shamsul Haq and Maha- jbeen Begum sold out the land to Smt. Sarita Vaishno and on 24.11.2005 Mohd. Samshool Haq @ Mustaq, Shagufa @ Arshi, Tarnnum @ Parveen and Tabbasum Parveen sold out the land to Smt. Anum Bahar Ansari. 5. Prakashchand Agrawal petitioner filed a civil suit before the District court, Jabalpur for specific performance of contract earlier against Kaneez Fatima and Kaneez Aisha but later on, by way of amendment also challenged the aforesaid transactions made by other co-accused persons. 6. Feeling aggrieved by the aforesaid transactions, one Ashok Kumar S/o. Hanshraj through power of attorney holder Ravindra Kumar, on 4.5.2009 made a written complaint to the Superintendent of Police, Jabalpur that the aforesaid property is the ownership of Ashok Kumar, and Saiyad Wahidul Haq was only the care taker of the said property and on the basis of forged documents, petitioner Prakashchand Agrawal entered into an agreement for purchasing of the said land from the daughters of late Saiyad Wahidul Haq and on the basis of the aforesaid documents, petitioner Prakashchand with the connivance of Kaneez Aisha and Kaneez Fatima filed a civil suit for specific performance of contract. Though, Saiyad Wahidul Haq and his daughters had no title to sell the property, about which, Municipal Corporation, Jabalpur executed a registered lease deed in favour of Ashok Kumar Malaram S/o. Hanshraj. Though, Saiyad Wahidul Haq and his daughters had no title to sell the property, about which, Municipal Corporation, Jabalpur executed a registered lease deed in favour of Ashok Kumar Malaram S/o. Hanshraj. Apart from it, one M. S. Gujral H/o. Jogindar Kaur also made a written complaint on 12.8.2009 to the Police Station Omti, Jabalpur against petitioner Prakashchand Agrawal that on the basis of the forged documents pertaining to the Will alleged to be executed in favour of Saiyad Wahidul Haq by his father Saiyad Abdul Gafoor and another Will by Saiyad Wahidul Haq in favour of Kaneez Aisha and Kaneez Fatima and the agreement by Saiyad Wahidul Haq and then the agreement by Kaneez Aisha and Kaneez Fatima to sell the aforesaid property, petitioner Prakashchand dishonestly and fraudulently deceived the complainant and got his consent to execute contract dated 26.11.2005 and got Rs.5 lacs in advance. Accordingly the petitioner cheated him as the documents which were shown by him, were forged. 7. On the strength of the aforesaid complaints, Police of Police Station Omti, Jabalpur registered crime no. 412/2009 on 25.8.2009 under Sections 420, 467, 468, 471 and 120-B of the IPC. As per the prosecution, after investigation the following facts in addition to the facts mentioned above, paras 2, 3, 4, were emerged :- (i) By order dated 24.6.2003 passed by Superintendent of Land Records (Diversion) Jabalpur, in the revenue papers, mutation was made in favour of legal heirs of Makbool Begum W/o. Saiyad Abdul Gafoor, here they are the accused persons other than Prakashchand petitioner. (ii) Sub-Registrar, Department of Registration and Stamps, Jabalpur (MP), had confirmed the sale deeds executed by other co-accused persons in favour of Smt. Jogindar Kaur, Smt. Kanak Lakhoutiya, Smt. Anum Bahar Ansari and Smt. Sarita Vaishno in year 2005 and these purchasers also stated that they purchased the land through the registered sale deed. (iii) Petitioner Prakashchand received Rs.5 lacs under the agreement dated 26.11.2005 from one complainant M. S. Gujral for leaving his claim on the property on the basis of agreement for purchasing the property from Saiyad Wahidul Haq and thereafter his daughters Kaneez Aisha and Kaneez Fatima and to withdraw all the proceedings and objections from the various courts of law and in the agreement it is men- tioned that party no. 2 M. S. Gujral had seen the agreement dated 19.7.2002 executed by Saiyad Wahidul Haq S/o. Saiyad Abdul Gafoor and the agreements dated 19.5.2003 and 15.11.2003 executed by Kaneez Aisha in favour of petitioner Prakashchand. (iv) During investigation, petitioner Prakashchand was asked to produce original documents relating to the agreement of sale written by Saiyad Wahidul Haq on 19.7.2002 and the agreements written by Kaneez Aisha on 19.5.2003 and 15.11.2003 and the Wills written by Saiyad Wahidul Haq and by Saiyad Abdul Gafoor and the documents pertaining to payment of Rs.10 lacs to Kaneez Aisha through bank drafts, but the petitioner could not produce any original documents and submitted photocopy of the true copy notarized by notary. (v) The Bank confirmed that the payment of Rs.10 lacs through bank draft, which was prepared on behalf of petitioner Prakashchand payable to Kaneez Aisha, has been received by Kaneez Aisha. (vi) One Abdul Mazeed, who was shown to be a witness of the documents submitted by petitioner Prakashchand to the police, has stated in his statement that he never put his signature on the documents. Similarly, notary Moolchand Yadav by whom the documents shown to be notarized has denied the fact that he notarized the documents and also stated that the seal affixed on the documents in question is not the seal which is used by him. According to the aforesaid both witnesses, the documents submitted by the petitioner with regard to the Wills written by Saiyad Wahidul Haq and by Saiyad Abdul Gafoor and the agreements written by Saiyad Wahidul Haq and his daughter Kaneez Aisha, are the forged documents. (vii). The Municipal Corporation, Jabalpur executed lease deed in favour of the complainant Ashok kumar on 28.3.2008 for a period of 30 years from 12.1.1995 to 11.1.2025. (viii). Sub-Registrar further confirmed the registration of lease deed in favour of Ashok Kumar. 8. (vii). The Municipal Corporation, Jabalpur executed lease deed in favour of the complainant Ashok kumar on 28.3.2008 for a period of 30 years from 12.1.1995 to 11.1.2025. (viii). Sub-Registrar further confirmed the registration of lease deed in favour of Ashok Kumar. 8. On the basis of the aforesaid facts, the investigating agency was of the opinion that the petitioner along with other co-accused persons have committed the aforesaid offences and the charge sheet has been filed and the learned Trial court has framed charges for the offences punishable under Sections 420, 465, 468, 471 and 120-B of the IPC against petitioner Prakashchand and offence punishable under Section 120-B of the IPC against the co-accused persons Smt. Kaneez Fatima, Smt. Kaneez Aisha, Smt. Jameela Begum, Smt. Iqbal Jehan, Smt. Shahida Begum, Smt. Shaheen and Mohd. Shamshul Haq. 9. On behalf of petitioner Prakashchand, quashment of the aforesaid proceedings has been sought on the ground that prima facie there is no ground to prosecute the petitioner for the aforesaid offences. Neither he prepared any forged documents nor he cheated any other person with the connivance of other accused persons and further submitted that in connection with the aforesaid transactions of the property, another criminal case at Police station Omti, Jabalpur has been registered as Crime no. 252/12 against said complainant Ashok Ku- mar and his power of attorney holder Ravindra Sukheja and his companions including the present petitioner and after investigation, charge sheet has been filed, in which, it is found that the property in dispute was belonging to Saiyad Abdul Gafoor, and Ashok Kumar, on the basis of forged and fabricated sale certificate, got his name mutated in the revenue records and got the lease deed executed from the Municipal Corporation, Jabalpur and petitioner Prakashchand initially objected the claim of Ashok Kumar before the Revenue court, the Municipal Corporation, Jabalpur and the Registrar office of Registration and Stamps and also filed several proceedings before the Civil Courts and the High court. But, later on, he withdrew all the objections and proceedings of the courts with the connivance of Ashok Kumar and other accused persons who later on sold out the land to Rajesh Juneja and Tarachandra Khatri and earned crores of rupees and on the basis of the charge sheet, cognizance has been taken and charges have been framed. 10. Thus, there are two charge sheets against petitioner Prakashchand. 10. Thus, there are two charge sheets against petitioner Prakashchand. In one charge sheet, the allegation is that the land was leased out to Ashok Kumar by the Municipal Corporation, Jabalpur and by preparing false documents; the petitioner had tried to grab the property which was leased out to Ashok Kumar and another charge sheet is that the land was wrongly leased out to Ashok Kumar on the basis of forged sale certificate purportedly issued by evacuee property. Whereas, in fact, Saiyad Abdul Gafoor father of Saiyad Wahidul Haq and grand-father of Kaneez Aisha and Kaneez Fatima was the lease holder. In view of the subsequent charge sheet it is clear that the allegation made in the previous charge sheet that Saiyad Wahidul Haq had no right or title to enter into agreement, is false and baseless and there is nothing on record that the agreement was between Saiyad Wahidul Haq and the petitioner based on forged document and there is no evi- dence on record like hand writing expert report that the agreement do not bear the signature of Saiyad Wahidul Haq. Further daughters of Saiyad Wahidul Haq received the consideration amount by bank draft which shows that the transactions were bona fide. Therefore, the proceedings be quashed. 11. It is also submitted that the petitioner has not cheated Ashok Kumar and M. S. Gujral and not prepared any forged document and the same has also not been used for cheating. He was bona fide purchaser and made efforts to get execution of the agreement and reliance has been place on a judgment of the Apex Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another, (2009) 8 SCC 751 . 12. Learned Govt. Advocate opposed the aforesaid contentions and submitted that from the statements of Abdul Mazeed and Moolchandra Yadav and M. S. Gujral, prima facie it establishes that the documents submitted by the petitioner to the police and the same was shown to M. S. Gujral at the time of getting consent with regard to execution of agreement dated 26.11.2005 and getting Rs. 5 lacs in advance, are the forged documents. Therefore, prima facie offences under Sections 420, 465, 468 and 471 of the IPC are made out and as far as the charge sheet and the finding of investigation with regard to another crime no. 5 lacs in advance, are the forged documents. Therefore, prima facie offences under Sections 420, 465, 468 and 471 of the IPC are made out and as far as the charge sheet and the finding of investigation with regard to another crime no. 252/12 is concerned, the same cannot be considered in this case which is a different offence based on different facts and evidence, though the property is same and the evidence or the material collected in the aforesaid crime cannot be considered in the present case, even the documents filed with the charge sheet of crime no. 252/12 which are unimpeachable nature, are considered, it cannot be said that there is no sufficient ground to prosecute petitioner Prakashchand for the aforesaid offences. 13. Having considered the contentions of learned counsel for the parties and on perusal of the record, in view of this court, prima facie there are sufficient grounds to prosecute the petitioner for committing offences under Sections 420, 465, 468 and 471 of the IPC. So far as the offence under Section 120-B of the IPC is concerned, prima facie it is not made out against petitioner Prakashchand. 14. In the material collected in the investigation there is no iota of evidence to establish that he committed cheating with the complainant Ashok Kumar but prima facie it appears that he entered into an agreement with M. S. Gujral and received Rs.5 lacs showing him the agreement for sale in his favour to be written by Saiyad Wahidul Haq dated 19.7.2002 and thereafter, the agreement for sale written by Kaneez Aisha dated 19.5.2003 and 15.11.2003, as mentioned in the agreement dated 26.11.2005 with M. S. Gujral, and these documents were submitted by the petitioner to the police and about which, witness Abdul Mazeed has stated that he had never signed on them as witness. Similarly, notary Moolchandra Yadav has also denied the fact that he notarized the aforesaid documents and further stated that the signatures on the documents are not of him and the seal affixed on the documents are also different and is not used by him and as per the statement of M. S. Gujral, considering the aforesaid documents being genuine documents, he entered into the agreement with the petitioner and paid Rs.5 lacs and accordingly, Prakashchand got his consent by deceiving him with dishonest and fraudulent intention. Therefore, prima facie aforesaid offences are made out against petitioner Prakashchand. 15. At this stage appreciation of evidence is not permissible whether the statements given by Abdul Mazeed or Moolchandra are true or not, cannot be adjudicated. Similarly, these evidences cannot be ignored in absence of hand writing expert report which may be another piece of evidence with regard to aforesaid facts. Moreover, at this stage on the basis of receiving of the amount of consideration through bank transaction by Kaneez Aisha from the petitioner, it cannot be said that the documents which are in question here, are not the forged documents, apart from it, in this regard Smt. Jogindar Kaur and her husband M. S. Gujral have stated that when she was asked by them with regard to execution of the agreement for sale in favour of the petitioner, she denied and stated that she had never executed agreement for sale in favour of the petitioner. 16. Learned counsel for the petitioner has placed reliance on the result of the investigation of another crime no. 252/12 and also produced the documents submitted by the prosecution in the charge sheet. The evidence and the material collected in another criminal case are having different angle with regard to different offence, cannot be considered in the present case. At the time of framing of charge, the petitioner would be at liberty to bring the relevant material before the Court at the time of adducing defence relating to the documents or the witnesses in his favour. However, here the documents which are unimpeachable and relevant to the allegations against petitioner Prakashchand in the present case can be considered. The aforesaid documents are related to establish the interest or title of Saiyad Abdul Gafoor and thereafter his heirs in the property. Even it is presumed that the property was belonging to Saiyad Abdul Gafoor and thereafter it was inherited to Saiyad Wahidul Haq and thereafter, his daughter namely Kaneez Aisha and Kaneez Fatima, the allegations against the petitioner cannot be said to be false or baseless as in the present case the allegations are that he committed forgery as discussed earlier and used the documents for cheating to M. S. Gujral. Therefore, the ingredients of the offence are different to the facts which established the persons who had / have rights or titles in the property. 17. Therefore, the ingredients of the offence are different to the facts which established the persons who had / have rights or titles in the property. 17. Learned counsel for the petitioner has placed reliance on a judgment of the Apex court in Mohd. Ibrahim (supra) but the facts of the aforesaid case are totally different from the present case. In the aforesaid case, real owner of the property made complaint that one accused has executed sale deed in favour of other accused without having any title and therefore, he committed forgery and cheated and Hon'ble the Apex court held that mere false averments in the documents do not come in purview of forgery. Therefore, no offence is made out and real owner has not been deceived, therefore, no offences of cheating and forgery are made out. As mentioned earlier, the facts of the present case are totally different. Thus, the petition of petitioner Prakashchand Agrawal has no substance and deserves to be dismissed. 18. The petitioners of M.Cr.c. No.17626/2014 have also sought quashment of proceedings initiated on the basis of charge sheet of crime no. 412/2009 registered at Police Station Omti, Jabalpur as ST No.449/2011, in which, learned trial court vide order dated 30.8.2014 has framed charge under Section 120-B of the IPC, alleging that with regard to the aforesaid property with a view to cheating one Ashok Kumar (wrongly mentioned Shiv Kumar in the charge sheet), forged agreement (Ikrarnama) and Will (Vasiyatnama) were prepared and accordingly, committed offence of criminal conspiracy, while there is no evidence to prima facie arrive at such conclusion. It is fact that the petitioners are the legal heirs of Saiyad Abdul Gafoor and they got mutation in their favour and thereafter, sold out the land. They have not committed any forgery and cheating with anybody. Apart from it, in another crime no. 252/12 registered at Police Station Omti, Jabalpur it has been found that the property was belonging to Saiyad Abdul Gafoor and Ashok Kumar got the lease executed in his favour on the basis of forged documents showing purchaser of the property being a evacuee property in the year 1966 and against Ashok Kumar and other accused per- sons including petitioner Prakashchand, the charge sheet has been filed. Once the prosecution in another case stated that the property was belonging to Saiyad Abdul Gafoor then on what basis it can be said that the petitioners without having any interest or title in the property prepared forged documents to commit cheating with Ashok Kumar or anybody, therefore, the proceedings deserve to be quashed. 19. Learned GA opposed the aforesaid contentions and submitted that the outcome of other criminal case cannot be considered in the present case and the petitioners without having any interest or title in the property sold out the land to the various persons and accordingly, they have cheated them. 20. Having considered the contentions of learned counsel for the parties and on perusal of the record, in the present case, the first complainant is Ashok Kumar. The present petitioners did not enter into any contract with Ashok Kumar. By order dated 24.6.2003 the Superintendent of Land Record (Diversion) Jabalpur mutated their name in the revenue record in place of Smt. Makbool Begum W/o. Saiyad Abdul Gafoor and thereafter, they sold the land to M. S. Gujral, Smt. Jogindar Kaur, Smt. Kanak Lakhoutiya, Smt. Anum Bahar Ansari and Smt. Sarita Vaishno by registered sale deed before coming Ashok Kumar in picture, claiming his title on the property on the basis of sale certificate issued in favour of his father. The registered sale deeds are not forged documents. Similarly the order of Superintendent of Land Record is also not a forged document. So far as Will (Vasiyatnama) allegedly written by Saiyad Abdul Gafoor in favour of Saiyad Wahidul Haq and by Saiyad Wahidul Haq in favour of his daughters Kaneez Aisha and Kaneez Fatima are concerned, none of the aforesaid petitioners have claimed anywhere their right on the basis of aforesaid alleged documents and these documents have came in existence by disclosure of another petitioner Prakashchand Agrawal, and Kaneez Aisha had entered into agreement with petitioner Prakashchand Agrawal and it is not a case of petitioner Prakashchand that she cheated him or the documents have been prepared dishonestly and fraudulently. Similarly, the petitioners have not committed any wrong with another complainant M. S. Gujral, therefore, it cannot be said that the petitioners have committed any forgery. Similarly, the petitioners have not committed any wrong with another complainant M. S. Gujral, therefore, it cannot be said that the petitioners have committed any forgery. So far as the statements of purchasers of the land namely M. S. Gujral, his wife Smt. Jogindar Kaur, Smt. Kanak Lakhoutiya, her husband Sanjay Lakhoutiya, Smt. Anum Bahar Mansoori and Smt. Sarita Vaishno are concerned, they have stated that without having title, the petitioners sold out the property to them. It shows that there were false averments in the sale deed with regard to title of the petitioners. But as pointed out earlier; Hon'ble the Apex court in the case of Mohd. Ibrahim (supra) has laid down that mere false averments in the documents with regard to title are not sufficient to term the document as forged document. Apart from it, in the light of the order of mutation in their favour, it cannot be said that at the time of execution of the sale deed, they could not bona fidely believe that they had sold the title in the property. 21. Apart from it, the documents filed with the charge sheet of crime no. 252/12 has also been submitted here. As mentioned earlier that the finding of the investigation of the another crime cannot be considered in this case at this stage but unimpeachable documents if support the stand of the petitioners can be considered. The documents show that earlier the property was belonging to Saiyad Abdul Gafoor and his name was recorded in the revenue record and Municipal Corporation, Jabalpur, as lease holder and thereafter, her wife Makbool Begum was recorded in the same capacity and thereafter, the petitioners' name were substituted in the revenue record. However, later on, on the objection filed by Ashok Kumar in the year, 2007, his name was substituted in place of the petitioners. In the circumstances, it cannot be said that the petitioners cannot claim bona fide title on the property and the act of selling of the property in year 2005 would amount to cheating with the purchasers. If there is any dispute of title it would be a civil dispute in nature rather than criminal Act. 22. Accordingly, in view of the aforesaid discussions, in view of this court, the petitioners of M.Cr.C. No.17626/2014 cannot be prosecuted on the basis of aforesaid material for commission of offence of conspiracy with co-accused Prakashchand Agrawal. If there is any dispute of title it would be a civil dispute in nature rather than criminal Act. 22. Accordingly, in view of the aforesaid discussions, in view of this court, the petitioners of M.Cr.C. No.17626/2014 cannot be prosecuted on the basis of aforesaid material for commission of offence of conspiracy with co-accused Prakashchand Agrawal. Hence, their petition deserves to be allowed. 23. In view of the aforesaid discussions, the petition filed by the petitioner Prakashchand (M.Cr.c. No.8416/2016) is dismissed with a direction to the trial court to amend the charge specified the act in the light of the observations made by this court and delete charge under Section 120-B of IPC. 24. The petition bearing M.Cr.C. No. 17626/2014 filed by the petitioners is allowed and the proceeding pending before the trial court as S.T. No.449/2011 arising out of Crime no.412/09 against the petitioners is hereby quashed and they are exonerated of the charge under Section 120-B of the IPC. A copy of this order be sent to the concerned court below for information and its compliance.