Prakashchand Agrawal vs State Of M.P. And Another

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.

This petition under Section 482 of Cr.P.C. has been pre-ferred 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.

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 Ku-mari 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 Fa-tima, 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 Ka-neez Aisha and Kaneez Fatima.

On the other hand, on the basis of getting their name mu-tated in the revenue papers in place of Makbool Begum W/o. Saiyad Ab-dul 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.

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 amend-ment also challenged the aforesaid transactions made by other co-ac-cused persons.

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 afore-said documents, petitioner Prakashchand

with the connivance of Ka-neez 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 exe-cuted 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 an-other Will by Saiyad Wahidul Haq in favour of Kaneez Aisha and Kaneez Fatima and

the agreement by Saiyad Wahidul Haq and then the agree-ment 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.

On the strength of the aforesaid complaints, Police of Po-lice 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 prose-cution, 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 Super-intendent 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 pur-chased the land through the registered sale deed.

(iii) Petitioner Prakashchand received Rs.5 lacs under the agreement dated 26.11.2005 from one com-plainant 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 mentioned that party no. 2 M. S.

Gujral had seen the agree-ment 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 Prakashc-hand was asked to produce original documents relat-ing to the agreement of sale written by Saiyad

Wahidul Haq on 19.7.2002 and the agreements written by Ka-neez 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 docu-ments and submitted photocopy of the true copy no-tarized 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 state-

ment that he never put his signature on the docu-ments. 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 exe-cuted 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 regis-tration of lease deed in favour of Ashok Kumar.

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 of-fence punishable under Section 120-B of the IPC against the co-ac-cused persons

Smt. Kaneez Fatima, Smt. Kaneez Aisha, Smt. Jameela Begum, Smt. Iqbal Jehan, Smt. Shahida Begum, Smt. Sha-heen and Mohd. Shamshul Haq.

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 of-fences. 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 Kumar and his power of attorney holder Ravindra

Sukheja and his com-panions 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 pro-ceedings 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.

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 prop-erty 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 evidence 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 pro-ceedings be quashed.

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 re-liance 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.

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 exe-cution of agreement dated 26.11.2005 and getting Rs. 5 lacs in advance, are the forged documents.

Therefore, prima facie offences under Sec-tions 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.

Having considered the contentions of learned counsel for the parties and on perusal of the record, in view of this court, prima fa-cie there are

sufficient grounds to prosecute the petitioner for commit-ting 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.

In the material collected in the investigation there is no iota of evidence to establish that he committed cheating with the com-plainant 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 Ka-neez Aisha dated 19.5.2003 and

15.11.2003, as mentioned in the agree-ment dated 26.11.2005 with M. S. Gujral, and these documents were submitted by the petitioner to the police

and about which, witness Ab-dul 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 signa-tures on the documents are not of him and the seal affixed

on the docu-ments are also different and is not used by him and as per the state-ment of M. S. Gujral, considering the aforesaid documents being gen-

uine documents, he entered into the agreement with the petitioner and paid Rs.5 lacs and accordingly, Prakashchand got his consent by deceiv-ing him

with dishonest and fraudulent intention. Therefore, prima facie aforesaid offences are made out against petitioner Prakashchand.

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 docu-ments, 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.

Learned counsel for the petitioner has placed reliance on the result of the investigation of another crime no. 252/12 and also pro-duced 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 pe-titioner 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 unim-peachable and relevant to the allegations against petitioner Prakashc-hand 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 prop-erty was belonging to Saiyad Abdul Gafoor and thereafter it was inher-ited 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.

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 ac-cused 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.

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 agree-ment (Ikrarnama) and Will (Vasiyatnama) were prepared and accord-ingly, committed offence of criminal

conspiracy, while there is no evi-dence to prima facie arrive at such conclusion. It is fact that the peti-tioners 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

prop-erty in the year 1966 and against Ashok Kumar and other accused persons 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.

Learned GA opposed the aforesaid contentions and sub-mitted that the outcome of other criminal case cannot be considered in the present case

and the petitioners without having any interest or ti-tle in the property sold out the land to the various persons and accord-ingly, they have cheated

them.

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 Superin-tendent 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 docu-ments. 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 Fa-tima are concerned, none of the aforesaid petitioners have claimed any-where 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 pre-pared 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. 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 can-not 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.

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 con-sidered in this case at this stage but unimpeachable documents if sup-port 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 Corpo-ration, Jabalpur, as lease holder and thereafter, her wife Makbool Be-gum 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 substi-tuted 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 dis-pute in nature rather than criminal Act.

Accordingly, in view of the aforesaid discussions, in view of this court, the petitioners of M.Cr.C. No.17626/2014 cannot be prose-cuted on the

basis of aforesaid material for commission of offence of conspiracy with co-accused Prakashchand Agrawal. Hence, their peti-tion deserves to be

allowed.

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.

The petition bearing M.Cr.C. No. 17626/2014 filed by the pe-titioners 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.