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2023 DIGILAW 1405 (BOM)

Namdeo v. State of Maharashtra

2023-06-28

G.A.SANAP

body2023
JUDGMENT/ORDER 1. Heard. 2. In this revision application, challenge is to the judgment and order dtd. 31/8/2016 passed by the learned Additional Sessions Judge, Akola, whereby the learned Sessions Judge dismissed the appeal filed by the applicants/accused Nos. 2 and 3 against their conviction and sentence awarded by the learned Judicial Magistrate First Class, Balapur dtd. 26/2/2013 for the offences punishable under Ss. 197 and 198 read with Sec. 34 of the Indian Penal Code (hereinafter referred to as "I.P.C."). Learned Judicial Magistrate First Class, Balapur on conviction had sentenced accused Nos.2 and 3 to undergo rigorous imprisonment for one year on both counts and to pay fine of Rs.500.00 each on both counts. 3. The facts are as follows:- Non-applicant No.2, who died during the pendency of this revision application had filed a complaint in the Court of Judicial Magistrate First Class, Balapur against three accused. In this proceeding after death of complainant, an application was made for bringing on record the legal representatives of the complainant/non-applicant No.2. This Court (Coram :-Manish Pitale, J.), by order dtd. 18/7/2019, rejected the said application by taking note of the fact that the State i.e. non-applicant No.1 was very much present to assist the Court. 4. It was stated by the complainant that he and accused No.2 are brothers. There was a dispute between the complainant and accused No.2 with regard to the right in field Survey No.146/1 ad-measuring 0.66 H.R. It was the case of the complainant that since 1959 he was cultivating the said land as a tenant. The land belongs to Gulam Chisti Masjid, a registered trust. The accused Saiyyad Mahemood Kadri at the relevant time was Manager of the trust. The trust has recognized the complainant as a tenant of the land in the year 1965-66 pursuant to the order of competent revenue authority dtd. 19/8/1966. Accused No.2, the brother of the complainant claimed right and share in the said land. The dispute started between the complainant and his brother with regard to the title and possession of the said land. The complainant stated in his complaint that accused No.2 with his son tried to take forcible possession of the land. The complainant, therefore, filed civil suit in the Court of Civil Judge Junior Division, Balapur seeking relief of injunction. In the said suit, the application filed by the complainant for temporary injunction was rejected. The complainant stated in his complaint that accused No.2 with his son tried to take forcible possession of the land. The complainant, therefore, filed civil suit in the Court of Civil Judge Junior Division, Balapur seeking relief of injunction. In the said suit, the application filed by the complainant for temporary injunction was rejected. The appeal filed by the complainant against the said order was allowed and the said order was set aside. The temporary injunction was granted in his favour. The accused No.2 filed revision/petition bearing No.114/2001 in this Court and challenged that order. During the pendency of the revision petition, a stopgap arrangement/ compromise was arrived at between the parties. The complainant and the accused No.2 filed joint pursis. In the said pursis, the complainant stated that he would allow accused No.2 to cultivate half portion of the disputed land till decision of the suit, but the accused No.2 should not take undue advantage of the said compromise set out in the pursis. 5. The complainant stated that despite specific order by the High Court, accused Nos.1 and 2, in collusion, forged the revenue record. On the application of the accused No.2, the accused No.3, who is Talathi, entered the name of the accused No.2 in 7/12 extract as a tenant in terms of the order of the High Court as mentioned above. Mutation entry was carried out. On these allegations, the process was issued against the accused. 6. The complainant examined himself as (CW-1). He also examined one independent witness as Saiyyad Shafik Ahemad Kadri (CW-2). Learned Magistrate, on appreciation of the evidence, found accused Nos.2 and 3 guilty and sentenced them as above. The appeal preferred against the said judgment and order was dismissed by the learned Additional Sessions Judge. The applicants/accused are therefore before this Court in revision. 7. I have heard Shri N.R. Saboo, learned Advocate for the applicants/accused Nos.2 and 3. Smt. Mayuri Deshmukh, learned APP for the State. Perused the record and proceedings. 8. Learned Advocate for accused Nos.2 and 3 submitted that evidence on record adduced by the complainant is not sufficient to prove the offences against accused Nos.2 and 3. Learned Advocate pointed out that accused No.3 was a Talathi. Smt. Mayuri Deshmukh, learned APP for the State. Perused the record and proceedings. 8. Learned Advocate for accused Nos.2 and 3 submitted that evidence on record adduced by the complainant is not sufficient to prove the offences against accused Nos.2 and 3. Learned Advocate pointed out that accused No.3 was a Talathi. On the basis of the pursis filed by the complainant and the accused No.2, Talathi misconstrued the observations of the High Court and allowed the application made by the accused No.2. Learned Advocate further submitted that the complainant has not proved that this act was done by accused Nos.2 and 3 with an intention to use the said document as genuine evidence. Learned Advocate further submitted that offence under Sec. 197 cannot be attracted against accused No.3 because he misunderstood and misconstrued the order passed by the High Court. Learned Advocate submitted that if there had been no pursis by accused No.2 and the complainant in the revision filed before High Court and in absence of reference of the said pursis in the order passed by High Court regarding the mutation entry carried out by accused No.3, accused No.3 with accused No.2 could have been held responsible for the commission of offence. Learned Advocate pointed out that admittedly accused Nos.2 and 3 were acquitted of the offence under Sec. 471 of the I.P.C. on the ground that said document was not used as evidence in any proceeding. Learned Advocate submitted that the Courts below have not properly appreciated the evidence and has come to a wrong conclusion. Learned Advocate further submitted that pursuant to the application made by accused No.2, necessary procedure was followed by accused No.3 and ultimately mutation entry was certified by Tahsildar. Learned Advocate further submitted that the act allegedly committed by accused No.3 was in discharge of his official duty and, therefore, without sanction of the Competent Authority, the learned Magistrate could not have taken cognizance against him. 9. Learned APP submitted that the Courts below have recorded concurrent findings of fact and held that the basic ingredients of Ss. 197 and 198 of the I.P.C. are made out. Learned APP submitted that the intention of accused Nos.2 and 3 in creating a false document has to be gathered from the circumstances and evidence on record. Learned APP submitted that the Courts below have not committed any error or mistake. 10. 197 and 198 of the I.P.C. are made out. Learned APP submitted that the intention of accused Nos.2 and 3 in creating a false document has to be gathered from the circumstances and evidence on record. Learned APP submitted that the Courts below have not committed any error or mistake. 10. In order to appreciate the rival submissions, I have gone through the record and proceedings. I have perused the judgment and order passed by the learned Magistrate as well as learned Additional Sessions Judge. It is undisputed that a dispute was pending between the complainant and accused No.2 with regard to the share in land. According to the complainant, by order of the Competent Authority, he was recognized as tenant of the said land. It has come on record that late father of the complainant and accused No.2 was tenant of the said land. The accused No.2 being the legal heir of deceased tenant has been claiming share in the land. It is the case of the complainant that when accused No.2 tried to disturb his possession or attempted to take forcible possession, he had filed a civil suit in the Court of Civil Judge Junior Division, Balapur seeking injunction. In the said suit, temporary injunction as prayed for by the complainant was rejected. However, in an appeal filed against said order learned District Judge allowed the appeal and granted temporary injunction in favour of the complainant. The accused No.2 being aggrieved by the said order filed civil revision in the High Court. A copy of the order passed by the High Court dtd. 2/3/2001 is part of the record. Perusal of the order indicates that the complainant and accused No.2 had filed a pursis. The parties inter alia stated in the said pursis that till the final decision of the suit, the complainant will allow the accused No.2 to cultivate half portion of the said land during the pendency of the suit in the trial Court without prejudice to the respective legal rights claimed by them in the property. 11. It therefore, goes without saying that pursuant to this temporary arrangement arrived at between the complainant and accused No.2, the accused No.2 started cultivating half portion of the land. It is pertinent to note that disputed entry in the 7/12 extract as well as mutation entry was made after this order. 11. It therefore, goes without saying that pursuant to this temporary arrangement arrived at between the complainant and accused No.2, the accused No.2 started cultivating half portion of the land. It is pertinent to note that disputed entry in the 7/12 extract as well as mutation entry was made after this order. Perusal of the relevant entry would show that on the basis of the arrangement and understanding between the parties placed on record before this Court, the accused No.2 made an application before the Talathi. The Talathi on the basis of the observations made by this Court, touching the arrangement and understanding arrived at between the parties entered the name of the accused No.2 in the 7/12 extract after taking mutation entry. It is further seen that this mutation entry was challenged by the complainant. It was ultimately set aside by the Competent Authority. In my view, all these facts need to be borne in mind while considering the intention of the accused Nos.2 and 3 in commission of the crime. It is to be noted that the rights claimed in the property by the complainant and the accused are sub judice before the Court. On the basis of the arrangement recorded in the order of this Court, no right was created in favour of accused No.2. The entry in 7/12 extract with regard to the possession of the accused No.2 over half portion of the land was therefore, not totally out of context. In my view, therefore, all these facts are required to be borne in mind while appreciating the submissions made on behalf of the accused with regard to the culpability of the accused Nos.2 and 3. 12. The most important aspect that needs to be borne in mind is the subsequent conduct of the accused Nos.2 and 3. It is not the case of the complainant that the said mutation entry was either produced as evidence before the civil court or in any other judicial proceedings by the accused No.2 to establish his right over the property. The right claimed by the accused No.2 being legal heir of the deceased tenant was sub judice before the Competent Authority. The complainant has stated that the Competent Authority had declared him as a tenant. In my view, in the facts and circumstances, the intention required to be established, is found missing in this case. The right claimed by the accused No.2 being legal heir of the deceased tenant was sub judice before the Competent Authority. The complainant has stated that the Competent Authority had declared him as a tenant. In my view, in the facts and circumstances, the intention required to be established, is found missing in this case. The entry made in the 7/12 extract seems to be the outcome of misunderstanding and misinterpretation of the judgment and order of the High Court. In my view, therefore, the evidence is not sufficient to prove the basic ingredients of the offences. The accused Nos.2 and 3, therefore, are required to be given the benefit of doubt. The revision application, therefore, succeeds. 13. Accordingly, the revision application is allowed. 14. The order passed by the learned Additional Sessions Judge dtd. 31/8/2016 and the order passed by the learned Judicial Magistrate, First Class, Balapur dtd. 26/2/2013 are quashed and set aside. Accused No.2- Namdeo Tukaram Umale and Accused No.3-Birbalsingh Dalpatsingh Narvaiyya are acquitted of the offences punishable under Ss. 197 and 198 read with Sec. 34 of the I.P.C. 15. The revision application stands disposed of.