Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 727 (GUJ)

Mohamad Badruddin Siddiqyi v. State of Gujarat

2022-06-07

NIRZAR S.DESAI

body2022
JUDGMENT : 1. By way of this petition, the petitioner has prayed for following reliefs : “(A) YOUR LORDSHIPS be pleased to call for the records and proceedings of criminal revision application below Exh.8 filed in Criminal Case No.2057/2009 pending in the court of Ld. 3rd Additional Chief Judicial Magistrate, Dahod and after perusing the same be pleased to quash and set aside the impugned judgment and order dated 29.06.2013 passed by Ld.Principal Sessions Judge, Dahod on application below Ex.8, in the interest of justice; (B) YOUR LORDSHIPS be pleased to pass appropriate orders discharging the petitioner from the offences punishable u/s. 406, 420 and 114 of IPC, from the Criminal Case No.2057/2009 pending in the court of Ld. 3rd Additional Chief Judicial Magistrate, Dahod, in the interest of justice; (C) YOUR LORDSHIPS be pleased to stay the further proceedings of Criminal Case No.2057/2009 pending in the court of Ld. 3rd Additional Chief Judicial Magistrate, Dahod, pending admission, hearing and final disposal of the present petition. (D) YOUR LORDSHIPS be pleased to grant such other and further orders, as may be deemed fit and proper by this Hon’ble Court in the interest of justice;” 2.1 It is the case of the petitioner that petitioner is from the State of Uttar Pradesh and he was appointed as CMA (Chemist and Metallurgist Assistant) with the Western Railways in the year 1990 and was posted at Dahod in the year 1991. In the year 1999, by way of registered saledeed, he purchased the piece of land admeausring 222 sq mtr of City Survey No.7218 of Dahod from the accused nos.1 to 4. However, those accused nos.1 to 4 are not party to this petition. 2.2 In the year 2003, the petitioner was transferred from Gujarat to Chhatisgarh on deputation and hence by way of another registered sale-deed executed on 26.06.2006, the petitioner sold the aforesaid piece of land to the present complainant. 2.3 The present complainant, who happens to be subsequent purchaser of the piece of land that the petitioner had purchased in the year 1999 and sold to the present complainant in the year 2006 came to know from the documents from District Inspector Land Records (‘DILR’ for short) wherein it was stated that the piece of land that the petitioner sold to the complainant is actually a land belonging to the Government over which earlier water-body used to exist. Having felt that the complainant was cheated, she filed criminal complaint being FIR M.Case No.03 of 2009 before the Dahod Town Police Station on 09.03.2009 for the offence punishable under Sections 420, 406, 465, 467, 468, 471 and 114 of the Indian Penal Code. 2.4 Pursuant to the filing of the aforesaid complaint, the present petitioner was granted anticipatory bail of this Court and he was released. 2.5 After the investigation was over, charge-sheet was filed on 03.09.2009 by Incharge Police Inspector, Dahod Police and after filing of the charge-sheet, the present petitioner preferred an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’, for short) before the Court of learned 3rd Additional Civil Judge and Judicial Magistrate First Class at Dahod which was numbered as Criminal Case No.2057 of 2009. 2.6 In the aforesaid application for discharge, learned 3rd Additional Civil Judge and Judicial Magistrate First Class at Dahod, vide order dated 30.05.2012 partly allowed the application for discharge preferred by the petitioner and discharged the petitioner from offences punishable under Sections 465, 467, 468 and 471 of the Indian Penal Code. However, the learned 3rd Additional Civil Judge and Judicial Magistrate First Class at Dahod directed that the present petitioner be prosecuted for offences punishable under Sections 420, 406 and 114 of the Indian Penal Code. 2.7 The petitioner challenged the aforesaid order by way of Criminal Revision Application No.33 of 2012 before the Court of learned Principal Sessions Judge at Dahod and ultimately vide order dated 29.06.2013 passed in Criminal Revision Application No.33 of 2012 below Exh.8, the learned Principal Sessions Judge at Dahod dismissed the revision application preferred by the petitioner. The petitioner has, by way of present petition, challenged the aforesaid order dated 29.06.2013 passed by the Principal Sessions Judge at Dahod and has prayed for his discharge in respect of an FIR filed by the present complainant – original Respondent No.2 in respect of offences under Sections 406, 420 and 114 of the Indian Penal Code, as well. 3. Heard learned advocate Mr. Y.M. Thakkar for the petitioner. 3.1 Learned advocate Mr. 3. Heard learned advocate Mr. Y.M. Thakkar for the petitioner. 3.1 Learned advocate Mr. Thakkar submitted that the petitioner is bona fide purchaser of the land in question and the land which he purchased in the year 1999, which was a constructed land was as it is sold to the complainant in the year 2006 on account of his transfer to Chhatisgarh. Learned advocate Mr. Thakkar submitted that there was no change in respect of the land in question and the status of the land which was existed in the year 1999 when the petitioner purchased the land and at the time when it was sold in the year 2006 to the complainant. He submitted that the land in question was NA land and, therefore, while granting the NA permission, the authorities must have examined each and every facet in respect of the land in question including the status of the land and ownership of the land and, therefore, when the petitioner sold the land to the complainant, it can not be said that the sell had taken place with dishonest intention. He submitted that despite the fact that as per the DILR, the land belongs to the Government as the land was situated on a land upon which earlier a water-body used to exist. However, till date the complainant is not dispossessed from the land by the Government and even in the revenue record the name of the complainant exists. 3.2 Learned advocate Mr. Thakkar submitted that the ingredients of Sections 406 and 420 of the IPC are not attracted in the transaction in question nor there is any whisper about the ill-intention of the petitioner in the narration of the FIR and, therefore, the order passed by the learned Principal Sessions Judge at Dahod dtd.29.06.2013 is erroneous and required to be quashed and set aside. 3.3 Learned advocate Mr. Thakkar, in his support, relied upon the decision of the Honourable Supreme Court rendered in the case of Mitesh Kumar J. Sha vs. State of Karnataka reported in AIR 2021 SC 5298 and by relying upon paras : 28, 35, 37 and 39 of the said judgment, he submitted that for pursuing the complaint under Section 405 of the IPC dishonest intention is a per-condition and even for establishing prima facie case for having committed such offence, the complaint must disclose the dishonest intention. The bare reading of the complaint right from the inception does not disclose any dishonest intention and, therefore, by quashing and setting aside the impugned order passed by the Principal Sessions Judge at Dahod, the petitioner is required to be discharged of the offences under Sections 406, 420, 463 and 114 of the Indian Penal Code. 3.4 Learned advocate Mr. Thakkar also relied upon headnote at page:10 of the petition at Ground : (j) in respect of decision in the case of Dilawar Babu Kurane vs. State of Maharashtra reported in 2002 (2) SCC 135 and submitted that merely a suspicion about the role of the accused is not sufficient. The suspicion must be grave against the accused person to establish prima facie case and in view of both the aforesaid judgments, learned advocate Mr. Thakkar urged that the petitioner may be discharged in respect of offences punishable under Sections 406, 420 and 114 of the Indian Penal Code as alleged in the FIR lodged by the complainant. 4. As against that, learned Additional Public Prosecutor Ms. Maithili Mehta, while vehemently opposing the present petition, submitted that overall conduct of the petitioner is required to be seen. She submitted that after thorough investigation charge-sheet was filed. On filing of the charge-sheet, from the charge-sheet papers, the role of the present petitioner is clearly established. She submitted that a bare reading of the complaint discloses commission of an offence and the aspect of dishonest intention or nature of suspicion is a matter of evidence. Unless the evidence is led, the intention of the present petitioner cannot be ascertained merely on the basis of pleadings and documents produced on record by the petitioner. She submitted that the petitioner was aware that land belongs to the Government and to substantiate her claim that even after the year 2009, at no point of time, the petitioner took any action to prove his bona fide or challenged the version of DILR which would substantiate the case of the prosecution and, therefore, petition be dismissed. 5. I have heard both learned advocate Mr. Thakkar for the petitioner and learned Additional Public Prosecutor Ms. Mehta for the respondent – State and I have perused the documents available on record. 5. I have heard both learned advocate Mr. Thakkar for the petitioner and learned Additional Public Prosecutor Ms. Mehta for the respondent – State and I have perused the documents available on record. 5.1 On perusal of the record, this Court found that when the petitioner purchased the land, the land was shown as ‘Ghartharr open vest land’ whereas at the time when the petitioner executed sale-deed in favour of the complainant, the land was described as ‘open NA land’ for residential purpose. Further, in the entire sale-deed though the land was described as NA land and one of the contentions raised by learned advocate Mr. Thakkar was that at the time of grant of NA permission, the authority must have checked everything including the status of the land and thereafter only NA permission was granted in respect of land in question. In the entire registered sale-deed there is no mention about the fact that NA permission was granted in favour of the land in question. There is no mention about by which order or which authority has granted the NA permission. On inquiry, learned advocate Mr. Thakkar submitted that he does not have any document whereby NA permission was granted with him which would go to show that in absence of any document whereby NA permission was granted to the petitioner or predecessor-in-title, such contention that at the time of granting NA permission the authority must have examined the status of the land cannot be accepted. 5.2 At the time this order being dictated, learned advocate Mr. Thakkar drew attention of the Court that in the revenue record the land is mentioned as ‘NA land’. He also drew attention of the Court to the earlier orders passed by the Court directing the Government to file affidavit in support of the status of the land. In respect of those submissions, this Court is of the view that when the petitioner has not done anything by initiating any revenue proceedings in respect of land in question and has sat idle from the year 2009 till today, it would not be proper to throw the responsibility on the Government to file an affidavit and produce documentary evidence in respect of the land in question. 5.3 On inquiry, this Court found that neither the petitioner nor the complainant or even predecessor-in-title in respect of the land in question have, at any point of time, even tried to challenge the observation made by DILR based upon which the present FIR was filed. As per the case of the DILR, the land which has been sold by the petitioner to the complainant is a Government land on which earlier water-body used to exist. For all these 13 years, that finding has not been disturbed. None of the parties have ever tried to even seek clarification on the basis of revenue record to clear doubt as to whether land in question, which is the root cause due to which the complaint has been filed, was Government land or private land. Further, the documents produced before this Court have never been produced before the Court of Magistrate even before the Sessions Court. In fact, while passing the order dated 29.06.2013, learned Sessions Judge, Dahod has categorically stated in paras:20 and 21 as under : “(20) The facts, stated in criminal revision application in respect of revenue entries of revenue record not at all produced alongwith discharge application by accused No.5. There is no iota of evidence in respect of alleged revenue entries, posted either in Village Form No.6 or Village Form No.8 or Village Form No.7, 12. In fact, no revenue record at all has been produced before the learned lower Court. (21) Hence, the facts, stated in criminal revision application, cannot be relied upon by this Court in absence of any revenue record, produced on record.” 6.1 Considering the fact that two Courts i.e. learned Magistrate and learned Sessions Judge, Dahod have examined the documents produced by the petitioner at different juncture. Few more documents are produced before this Court. Though all those documents are produced by the petitioner, however, considering the fact that Revenue Department is not made party to this petition, genuineness of those documents is a subject matter of evidence. Further, considering the fact that, at no point of time, any proceeding under the Revenue Law were initiated by the petitioner or his predecessor-in-title and in absence of any order passed by the Revenue Authorities, no presumption can be drawn in favour of the petitioner that land actually belongs to the petitioner. Further, considering the fact that, at no point of time, any proceeding under the Revenue Law were initiated by the petitioner or his predecessor-in-title and in absence of any order passed by the Revenue Authorities, no presumption can be drawn in favour of the petitioner that land actually belongs to the petitioner. All the aspects whether the petitioner had dishonest intention or not or whether suspicion against the petitioner can be grave or a mere suspicion, are subject matter of evidence for which the petitioner is required to face the trial. 6.2 It is noteworthy that when petitioner preferred application for discharge considering the documents on record, the learned Magistrate had vide its order dated 30.05.2012 had already discharged the petitioner from the offence punishable under Sections 465, 467, 468 and 471 of IPC while partly allowing the discharge application of the petitioner. That was the first instance wherein the learned JMFC had an occasion to consider the documents on record. At that juncture, certain documents were not produced by the petitioner. Subsequently, some more documents were produced by the petitioner at the stage of filing of Criminal Revision Application No.33 of 2012. Even the learned Sessions Judge also examined those documents and ultimately dismissed the petitioner’s Revision Application vide order dated 29.06.2013, which is subject matter of challenge before this Court. 6.3 Further, as far as the submission of learned advocate Mr. Thakkar in respect of dishonest intention and grave misconduct by relying upon judgment of the Hon’ble Supreme Court in the case of Mitesh Kumar J. Sha vs. State of Karnataka (supra) is concerned, this Court is of the view that in the FIR the complainant has specifically stated that the present applicant was having knowledge about the fact that land does not belong to their ownership. Despite that only with the intention to cheat the complainant, they sold the land to the complainant which would show that there was element of dishonest was also present in the complaint and, therefore, judgment cited by learned advocate for the petitioner would not help the petitioner. 7. Despite that only with the intention to cheat the complainant, they sold the land to the complainant which would show that there was element of dishonest was also present in the complaint and, therefore, judgment cited by learned advocate for the petitioner would not help the petitioner. 7. In view of above, on considering overall facts and circumstances of the case as well as documents produced on record, this Court is of the view that the genuineness of the documents produced by the petitioner is required to be tested by leading evidence and hence at this stage it would not be proper for this Court to discharge the petitioner from rigors of offences under Sections 406, 420 and 114 of the Indian Penal Code and hence the present petition is required to be dismissed and the same is dismissed accordingly. Rule is discharged. No order as to costs. 7.1 It is clarified that the view expressed by this Court are tentative and at the time of trial, the trial Court shall take into consideration the evidence produced before the trial Court without being influenced by the present order. 8. At this juncture, learned advocate Mr. Thakkar points out that while dictating the order this Court has committed factual error by stating that DILR has opined that the land sold by the petitioner is a Government land. In fact what DILR meant to say was the land which is shown in the map is Government land. However, considering the fact that had it been the case since the complaint was lodged in the year 2009, by now clarification could have been sought from the DILR by the petitioner or any other interested person. Today petitioner has preferred this petition in respect of the map along with opinion supplied by DILR to the complainant and, therefore, what is required to be considered is the material which is on record. Today petitioner has preferred this petition in respect of the map along with opinion supplied by DILR to the complainant and, therefore, what is required to be considered is the material which is on record. Therefore, without expressing any further opinion in respect of whether the land that petitioner had sold to the complainant or the land which is mentioned in the order of the DILR is same or different, as the petitioner has preferred this petition and this order is passed on the basis of documents available on record and which is the land which DILR meant to declare to be Government land also is a matter of evidence and, therefore, even that aspect also be considered at the trial.