1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH
AT AURANGABAD
CRIMINAL APPEAL NO. 40 OF 1999
Mohd. Ayyub s/o Abdul Khader,
Age: 38 years, Occ: Agril.,
R/o. Kaij, Tq. Kaij,
District Beed. .. Appellant
(Orig. Complainant)
Versus
1.
Zahoora Begum d/o Abdul Gafoor,
Age: 48years, Occ: Not known.
R/o. Ambejogai, at present at
Kaij, Dist. Beed.
2. Mohd. Yousufuddin s/o Ahmed
Mohiuddin Qazi,
Age: 46 years, Occ: Agril.,
R/o. Kaij, Dist. Beed.
3. Mukhtaruddin s/o Sharifuddin
Kazi,Age: 51 years, Occ: Agril.,
R/o. Kaij, Dist. Beed.
4. Vithal Shankar Neharkar,
Age: 35 years, Occ: Agri.,
R/o. Pissegaon, Tq. Kaij,
District Beed.
5. The State of Maharashtra. .. Respondents
(Ori. Accd. No.1 to 4)
...
Mr. A.A. Ansari, Advocate i/by
Mr. A.A. Paithane, Advocate for the appellant.
Ms. Vanita H. Sangole Advocate holding for
Mrs. M.A. Kulkarni, Advocate for respondent Nos.
1 to 4.
Mr. K.M. Suryawanshi,A.P.P. for respondent No.5.
...
::: Downloaded on - 09/06/2013 15:19:52 :::
2
CORAM : P.R. BORKAR,J.
DATE : 20TH NOVEMBER, 2009.
ORAL JUDGMENT :
. This is the appeal preferred by the
original complainant being aggrieved by the
order of acquittal passed by the learned
Judicial Magistrate, First Class, Kaij in S.C.C.
No. 589/1990 decided on 25-06-1997 whereby the
present respondent Nos. 1 to 4 were acquitted of
offence punishable under Section 423 of the
Indian Penal Code.
2. The present appellant who was the original
complainant has filed private complaint against
respondent Nos. 1 to 4 alleging that he is the
owner and possessor of land Survey No. 6/U
admeasuring 5 Acres 35 Gunthas at village Kaij.
It is stated that the said land was initially
cultivated by his father Abdul Quadar since
1948. It was Inam land of Madad Mash nature.
::: Downloaded on – 09/06/2013 15:19:52 :::
3
Under the provisions of Hyderabad Inam
Abolition and Cash Grants Act of 1954, State
Government became the owner of the land for the
period from 20-7-55 to 1-7-60. Later on, as per
Section 69(1) of the said Act, occupancy rights
regarding the said land were conferred on Abdul
Qadar, the father of the complainant on payment
of ‘Najrana’. Mutation Entry No. 22 was
certified on 26-1-62 by the Naib Tahsildar,
Kaij. Thus, from 26-1-62 father of the
complainant was enjoying the property. Father
of complainant expired on 23-04-84 and his four
sons including the complainant became owners.
Respondent No. 1 has no concern with the
property. 1 Acre 30 Gunthas land out of Survey
No. 6/U was sold to Bapusaheb Chincholikar and
Shantinath. Excluding that portion, remaining
portion is owned and possessed by the
complainant.
3. It is further case of the complainant-
appellant that respondent No. 1 had no concern
::: Downloaded on – 09/06/2013 15:19:52 :::
4
with Survey No. 6/U and in spite of that, he
sold a plot admeasuring 56 x 27 feet out of it
to respondent No. 2 for Rs.22,000/- on 25-09-90.
Registered sale deed was executed by respondent
No. 1 in favour of respondent No. 2 and
respondent Nos. 3 and 4 signed thereon as
attesting witnesses and thus, respondent Nos. 1
to 4 have committed offence under Section 423
read with Section 34 of the Indian Penal Code.
4. In support of his case, the complainant
examined himself and three witnesses. He
produced certain documents. Learned Magistrate
was not satisfied and he passed the order of
acquittal which is challenged in this appeal.
5. Section 423 of the Indian Penal Code is as
follows.
“S.423. Whoever dishonestly
or fraudulently signs, executes
or becomes a party to any deed
or instrument which purports to
transfer or subject to any::: Downloaded on – 09/06/2013 15:19:52 :::
5charge, any property, or any
interest therein, and whichcontains any false statement
relating to the consideration
for such transfer or charge, or
relating to the person orpersons for whose use or
benefit it is really intended
to operate, shall be punished
with imprisonment of either
description for a term whichmay extend to two years, or
with fine, or with both”.
Thus, the offence defined under Section 423 of
the Indian Penal Code is mainly relating to the
fraudulent and fictitious acts. Essential
ingredients of the offence under Section 423 of
the Indian Penal Code are as under.
(1) The accused signed,
executed or became party to any
deed or instrument;
(2) that such deed or
instrument purported to
transfer or subject to any
charge, any property, or any
interest therein;
(3) that such deed or
instrument contained any false
statement relating to the
consideration for such transfer
or charge, or relating to the
person or persons for whose use
::: Downloaded on – 09/06/2013 15:19:52 :::
6
or benefit it is really
intended to operate and;
(4) that the accused did
sign or execute or become party
to the said deed or instrument
dishonestly or fraudulently.
6. It is not the case herein that respondent
No. 2 did not pay interest. He paid
consideration of Rs. 22,000/- to respondent No.
1. It is the case that respondent No. 1 had no
title to the land and in spite of that, the sale
deed of plot was executed. It may be noted that
it is not the case of respondent No. 2 that
respondent No. 1 had no title and in spite of
that, he executed the same. It is the case of
complainant-appellant that respondent No. 1 had
no title to convey over the plot in question.
The evidence of complainant is at Exhibit-98.
He spoke as per his complaint which is
reproduced above, and stated that respondent No.
1 had no concerned with the property and the
plot in question and in spite of that,
respondent No. 1 executed sale deed in favour of
::: Downloaded on – 09/06/2013 15:19:52 :::
7
respondent No.2 and respondent Nos. 3 and 4
signed thereon as a witnesses. Original ‘Sanad’
conferring occupancy right on the father of
complainant is not produced on record. The
complainant produced on record Mutation Entry
No. 22 at Exhibit-99, disposal schedule at
Exhibit-100, Mutation Entry No. 1700 at
Exhibit-101, 7/12 extract at Exhibit-102.
7. The perusal of original Record and
Proceedings indicate that what is produced on
record are all xerox copies of certified copies
and not the original certified copies. In the
cross examination, the complainant admitted that
he has not produced the document of title in
favour of his father. He was not aware how the
land had come to his father. He was not aware
in how many pot hissas Survey No. 6 of Kaij was
divided. He then admitted that Mutation Entry
No. 1700 was set aside in appeal by the Deputy
Collector, Ambajogai and his appeal against the
said decision was dismissed. He did not admit
::: Downloaded on – 09/06/2013 15:19:52 :::
8
that Revision Application preferred against the
dismissal of appeal, was not admitted, but he
then admitted that he had filed one Writ
Petition in the High Court. So one thing is
clear that Mutation Entry No. 1700 by which
names of four sons of Abdul were entered to the
land Survey No. 6/U, was challenged. Said
Mutation Entry was set aside by the Deputy
Collector and order remained confirmed till
Revision and then Writ Petition was filed in the
High Court but it is not stated what happened of
the said Writ Petition and whether it is still
pending. The complainant further stated that he
was not aware if Special Civil Suit No.2/1991 is
pending in the Court of Civil Judge, Senior
Division, Ambajogai, on the same issue. He
further admitted that there is one standing
house in Survey No. 6/U. He denied that it was
occupied by accused No. 1, but admitted that he
prosecuted accused No. 1 in Criminal Case No.
446/1990 for offence punishable under Section
448 of the Indian Penal Code and the same was
::: Downloaded on – 09/06/2013 15:19:52 :::
9
dismissed. He also admitted that he had
prosecuted accused No. 1 for offence punishable
under Section 379 of the Indian Penal Code in
Case No. 86/1991 and the same was also
dismissed. Thus, these admissions clearly show
that the relations of the complainant with
accused No. 1 had been strained for long back.
He had prosecuted respondent No. 1 for trespass
in the house situated in the property. It is
also clear that litigation is pending between
the complainant one one hand and respondent No.
1 on other regarding ownership and rights in the
property in question.
8. In the facts and circumstances, it cannot
be said that execution of the sale deed by
respondent No. 1 in favour of respondent No. 2
was fraudulent or dishonest. The trial Court has
observed that the name of Abdul Gafur, the
husband of respondent No.1 was entered in other
rights column of V.F. 7/12 extract. So in the
facts and circumstances of the case, merely
::: Downloaded on – 09/06/2013 15:19:52 :::
10
because dispute has been pending between the
complainant and respondent No. 1 regarding the
property in question, it cannot be said that
respondents have committed offence under
Section 423 of the Indian Penal Code, by
executing the sale deed. In my opinion, this
appeal against the acquittal has no merit and
deserves to be dismissed. Hence the appeal is
dismissed.
[ P.R. BORKAR, J.]
sut/NOV09/cra40.99
::: Downloaded on – 09/06/2013 15:19:52 :::