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MOHD. DAUD AND ANOTHER versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Mohd. Daud And Another v. State Of U.P. And Another - APPLICATION U/s 482 No. - 5644 of 2005 [2007] RD-AH 15748 (19 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED.

Crl. Misc. Application no.5644 of 2005

Mohd. Daud and another. . . . .. . . . . . . . .. . . . . .Applicants.

Versus

State of U.P. and another .. . . . . . . . . . . . . . . . . . Opp.Parties.

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Hon'ble R.K. Rastogi,J.

This is an application under section 482 Cr.P.C. to quash the proceedings of criminal complaint case no. 6212 of 2004, Babu Ram Vs. Chandrabhan and others, under sections 420, 471, 465, 468 and 120-B, I.P.C. police station Mandi Saharanpur district Saharanpur pending in the court of the Chief Judicial Magistrate, Saharanpur.

The facts relevant for disposal of this application are that complainant no. 2 Babu Ram son of Prem Singh filed a complaint against the accused applicants and co-accused Chandrabhan, Mustaqeem, Babu Ram son of Buddhu, Padam and Rati Ram under section 156 (3) Cr.P.C with these allegations that complainant Babu Ram and his brother Satish were owners of house bearing municipal no.11/1273-1/1 situate at mohalla Mehdi Sarai Saharanpur police station Mandi Saharanpur and it was their ancestral property. During the communal riots of 1991-92 the complainant and his brother Satish left that house and started to reside at mohalla Mohit Nagar, Saharanpur due to fear of Muhammadans. On 12.10.1992 accused Chandrabhan, Mustaqeem, Babu Ram, Padam and Rati Ram thatched a conspiracy and they prepared a fictitious power of attorney in the name of the complainant and his brother Satish Kumar by impersonating two other persons as Babu Ram and Satish Kumar and produced them before the Sub Registrar and got that power of attorney registered in favour of accused no.1 Chandrabhan and on the basis of this fictitious power of attorney in favour of the accused no. 1 Chandrabhan, Mustaqeem accused no. 2 got a sale deed of the aforesaid house of the complainant Babu Ram and Satish Kumar executed in his favour 30.4.1993 for a sum of Rs.29,000/-. Accused Babu Ram son of Buddhu and Padam had signed the sale deed as marginal witnesses. Thereafter on 13.5.1996 accused no. 2 Mustaqeem sold this house to accused no. 6 Shamshad Begum (applicant no.2 in this petition ) for a sum of Rs..30,000/- and accused no.7 Mohd. Daud { applicant no.1 in this petition ) signed the sale deed as a witness. Thereafter the accused got the proceedings under section 145 Cr.P.C. initiated by the police in respect of the said house. However, the City Magistrate has passed order on 16.8.2003 that he has no jurisdiction to decide the question of ownership and dropped the proceedings. Then the complainant and his brother Satish Kumar came to know about the aforesaid fictitious power of attorney. The complainant and his brother are still in possession of the house. Their names were entered as owner of the house in the record of Nagarmahapalika Saharanpur and they are depositing its house tax and water tax. Therefore, it was prayed that action should be taken against the accused persons and a direction should be given to the police to register a case against them.

The learned Magistrate on the above application instead of issuing any direction to the police to register a case against the accused persons treated it as a complaint and after recording statement of the complainant and his witnesses summoned the accused persons under sections 420, 467, 468 and 120-B, I.P.C., and aggrieved with that order, the accused no. 6 and 7 have filed this application under section 482 Cr.P.C. before this Court in which they have alleged that they have bona fide purchased the house from its owner Munstaqeem in whose favour the sale deed had been executed by accused no.1 Chandrabhan on behalf of the complainant and his brother Satish Kumar. They have not committed any offence . On the other hand, they are victims of the above conspiracy and so the proceedings against them should be dropped.

Counter affidavit has been filed by Babu Ram complainant -O.P. no.2 asserting the allegations made in the application under section 482 Cr.P.C. Rejoinder affidavit has also been filed reaffirming the allegations made in the application under section 482 Cr.P.C.

I have perused the affidavit filed in support of the application under section 482 Cr.P.C., counter affidavit and rejoinder affidavit and also heard learned counsel for both the parties.

It has been submitted by the learned counsel for the applicants that the case is dividable in three series of incident. The first series is of preparation of so called fictitious power of attorney of the complainant O.P. no.2 and his brother Satish Kumar, which was in favour of the accused Chandrabhan and accused Rati Ram had allegedly identified the so called imposters claiming them to be Babu Ram and Satish Kumar, and this so called fictitious power of attorney was prepared on 12.10.1992 by collusion of accused Chandrabhan, Mustaqeem, Babu Ram son of Buddhu, Padam and Rati Ram and there is no allegation in the entire complaint that the present applicants Shamshad Begum and Mohammad Daud had any role to play in preparation of this power of attorney. He further pointed out that second incident is dated 30.4.2003, on which date the accused Chandrabhan, the so-called attorney of the complainant Babu Ram son of Prem Singh and his brother Satish Kumar, executed sale deed of the disputed house in favour of accused no.2 Mustaqeem and there is no allegation to this effect in the entire complaint that the present applicants no. 1 and 2, Mohd. Daud and Shamshad Begum had any role to play in execution of the sale deed in favour of the accused Mustaqeem. He further pointed out that third incident is dated 13.5.1996,i.e. after expiry of period of three years from the date of

the aforesaid sale deed, and on this date accused no.6 Shamshad Begum purchased the disputed house from accused Mustaqeem, and the only role assigned to accused applicant no.1 Mohd. Daud is that he had witnessed the above sale deed. He submitted that Shamshad Begum had bona fide purchased the house from Mustaqeem who had its sale deed in his favour and so no criminal case is made out against her. He further submitted that civil suit for cancellation of the above sale deed is already pending before the civil court. This fact as to whether Shamshad Begum was bona fide purchaser for value without notice to the title of the so called owner of the house,i.e. Babu Ram son of Prem Singh and Satish Kumar or not is to be decided in that suit, but there is neither any allegation to this effect in the complaint that the present applicants were party to the execution of the so called fictitious power of attorney in favour of Chandrabhan or that they were party to any conspiracy, and allegations in this regard are against accused no. 1 to 5 only mentioned in the application under section 156 (3) Cr.P.C., and when there is no allegation against them in regard to that conspiracy, they have been un-necessarily impleaded as accused in this case and the order passed against them summoning them as accused amounts to abuse of the process of the court.

The learned counsel for the applicants cited before me rulings of Hon'ble Supreme Court in the case of ' Ajay Mitra Vs. State of M.P. and others' 2003(46) ACC 592, ' Devendra Kumar Singla Vs. Baldev Krishan Singla' 2005 ( Supreme Court Cases (Cri) 1185, 'Hotline Teletubes and Components Ltd. and others Vs. State of Bihar and another' 2005 Supreme Court Cases (Cri) 1515

and 'Vijay Rao Vs. State of Rajasthan and another' 2005 Supreme Court Cases (Cri) 1600 in support of his contention that in such circumstances the application under section 482 Cr.P.C. should be allowed and the applicants should be discharged. The learned counsel for the opposite party on the other hand cited before me a ruling of Hon'ble Apex Court in 'T. Vengama Naidu Vs. T. Dora Swamy Naidu & others' 2007 AIR SCW 4266. In this case the facts were that the accused had dishonestly executed sale deed of the property in favour of his own daughter on the basis of general power of attorney executed in his favour by the complainant when that power of attorney had already been revoked and so it was held that prima facie there were ingredients of offences complained of, and so the F.I.R. and the proceedings could not be quashed. The facts of this case are quite different from those of the present case, and so this ruling is not applicable to the present case. On the other hand, as laid down in the case of 'Vijay Rao Vs. State of Rajasthan and another' referred to above, when ingredients of offence in question are conspicuously lacking in the complaint , the act of allowing criminal proceedings to go on would result in abuse of the process of the court and so the proceedings should be quashed.

Taking into consideration the facts of the present case and the law laid down by the Hon'ble Apex Court, I am of the view that no criminal case is made out against the present applicants and so, their application under section 482 Cr.P.C. deserves to be allowed.

The application under section 482 Cr.P.C. is allowed and the proceedings of Criminal Case no. 6212 of 2004, Babu Ram Vs.Chandrabhan and others, pending in the court of the Chief Judicial Magistrate, Saharanpur are quashed against the present applicants only.

Dated:19.9.2007

RPP.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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