High Court · 2025
Facts
appln-1821-2021 and 2267-2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1821 OF 2021Jaykumar s/o Vardhaman JainAge: 34 years, Occu.: Business & Agri.,R/o. Khasdari area, Jain Sadan, Kannad,Tq. Kannad, District Aurangabad. .. ApplicantVersus1.The State of MaharashtraThrough the Police Inspector,Kannad City Police Station,Taluka Kannad, District Aurangabad.2.Shaikh Bilal s/o Shaikh KadarAge: 29 years, Occu.: Business,R/o. Galleboragaon, Tq. Kannad,District Aurangabad. .. Respondents…WITHCRIMINAL APPLICATION NO.2267 OF 20201.Raiskhan s/o Bhikankhan PathanAge: 41 years, Occu.: Agriculture,R/o. Banshendra Panpoi Phata,Taluka Kannad, District Aurangabad.2.Lalkhan s/o Husenkhan PathanAge: 48 years, Occu.: Agriculture,R/o. Banshendra Panpoi Phata,Kannad, Taluka Kannad, District Aurangabad.3.Kalim s/o Rafiq PatelAge: 28 years, Occu.: Agri.,R/o. Banshendra, Tq. Kannad,Dist. Aurangabad.4.Anis s/o Musa ShaikhAge: 29 years, Occu.: Agri.,R/o. Banshendra, Tq. Kannad,District Aurangabad.[1]
Legal Reasoning
appln-1821-2021 and 2267-2020.odtthe amount of compensation in respect of acquisition of 6 Gunthas ofland. Therefore, on what basis the informant was saying that actuallyonly 4 Gunthas of land were acquired itself is not gathered by theinvestigating officer and there are no documents to that effect. Now, theapplication that was filed by the informant and his father on 09.04.2019with the State is still pending and no final order has been passed.Informant then says that the 2 Gunthas land which was not used forState National Highway is outstanding or it is remaining and 1 Gunthaland towards the north of Masjid is also remaining which would bemutated as per the law in the name of his father. So, it is in anticipation.When the land is once acquired, the acquisition cannot be so cancelledunless the Government specifically takes step.7.The informant is now raising doubts and finger towards the saledeed that has been executed by Jaykumar Jain in favour of the Trust for6 Gunthas of land. Prima facie the documents on record show thatJaykumar was the owner of land admeasuring 56 R + 50 R since 2005. Ifthere is a boundary dispute or existence of the land itself is in question,then it cannot presume that on the basis of such document, cheating hasbeen done or a false and fabricated document has come into existence.No Government Officer appears to be feeling that the Government hasbeen cheated by the applicants. Under such circumstance, it would beabuse of process of law with this material, if the applicants are directed[8] appln-1821-2021 and 2267-2020.odtto face the trial. It can be rather said that a civil dispute has been givena criminal colour and, therefore, this is a fit case where we shouldexercise our powers under Section 482 of the Code of CriminalProcedure. Hence, the following order :-ORDERI)Both the Criminal Applications stand allowed.II)The proceedings in Regular Criminal Case No.115 of 2021pending before the learned Judicial Magistrate First Class,Kannad, District Aurangabad arising out of FIR vide Crime No.407of 2020 dated 01.10.2021 registered with Kannad City PoliceStation, Taluka Kannad, District Aurangabad for the offencespunishable under Sections 420, 465, 468, 471 read with Section34 of Indian Penal Code, stands quashed and set aside as againstthe applicant in Criminal Application No.1821 of 2021 – JaykumarVardhaman Jain and the applicants in Criminal ApplicationNo.2267 of 2020 i.e. (i) Raiskhan s/o Bhikankhan Pathan, (ii)Lalkhan s/o Husenkhan Pathan, (iii) Kalim s/o Rafiq Patel,(iv) Anis s/o Musa Shaikh, (v) Ajijkhan s/o Manwarkhan Pathan, (vi)Shabbir s/o Bhikankhan Pathan and (vii) Limchand s/o HarsinghRathod.[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[9]
Arguments
appln-1821-2021 and 2267-2020.odt5.Ajijkhan s/o Manwarkhan PathanAge: 62 years, Occu.: Labour,R/o. Banshendra Panpoi Phata,Kannad, Tq. Kannad, Dist. Aurangabad.6.Shabbir s/o Bhikankhan PathanAge: 51 years, Occu.: Labour, R/o. Banshendra Panpoi Phata, Kannad,Tq. Kannad, District Aurangabad.7.Limchand s/o Harsingh Rathod,Age: 50 years, Occu.: Agriculture,R/o. Langada Tanda,Tq. Kannad, District Aurangabad. .. ApplicantsVersus1.The State of MaharashtraThrough the Police Station Officer,Kannad City Police Station,Tq. Kannad, District Aurangabad.2.Shaikh Bilal s/o Shaikh KadarAge: 29 years, Occu.: Businessof Clothe Store,R/o. Galle Borgaon, Tq. Kannad,District Aurangabad. .. Respondents…Mr. Yogesh D. Kale, Advocate for the applicant in Criminal Application No.1821of 2021.Mr. A. R. Devakate, Advocate for the applicant in Criminal Application No.2267of 2020.Mr. A. M. Phule, APP for respondent No.1/State in both the matters.Mr. N. S. Shaikh and Mr. Yogesh A. Jadhav, Advocate for respondent No.2 inboth the matters.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 03 MARCH 2025 PRONOUNCED ON : 23 APRIL 2025[2] appln-1821-2021 and 2267-2020.odtORDER (Per Smt. Vibha Kankanwadi, J.) :-.Both the applications have been filed for quashing theproceedings in Regular Criminal Case No.115 of 2021 pending beforethe learned Judicial Magistrate First Class, Kannad, District Aurangabadarising out of FIR vide Crime No.407 of 2020 dated 01.10.2021registered with Kannad City Police Station, Taluka Kannad, DistrictAurangabad for the offences punishable under Sections 420, 465, 468,471 read with Section 34 of Indian Penal Code.2.Heard learned Advocate Mr. Yogesh D. Kale for the applicant inCriminal Application No.1821 of 2021, learned Advocate Mr. A. R.Devakate for the applicants in Criminal Application No.2267 of 2020,learned APP Mr. A. M. Phule for respondent No.1/State in both thematters and learned Advocate Mr. N. S. Shaikh for respondent No.2 inboth the matters.3.Learned Advocates appearing for the applicants vehementlysubmit that respondent No.2/informant has filed the FIR with mala fideintention. There is huge delay in lodging the report. The informantsubmits that his father Shaikh Kadar Shaikh Rustum had purchased 6Gunthas of land from Gut No.114 situated at village Banshendra (PanpoiPhata), Taluka Kannad, District Aurangabad in 1994. The saidagricultural land was abutting Aurangabad – Dhule Highway and[3] appln-1821-2021 and 2267-2020.odttherefore, his father had made construction of four shops/Gala’s in 2Gunthas and rest of the 4 Gunthas was covered by wall fencing. In 2007his father gave 1 Guntha land for construction of Masjid and Madarsawithout taking any consideration to a Trust. The construction of Masjidand Madarsa was completed in 2008. Lands from various farmers wereacquired by the Government in 2015 for development and widening ofthe State Highway to National Highway. The Government gavecompensation to his father in respect of acquisition of 6 Gunthas land,which was in his father’s name. When actual work of widening started in2019, it was noticed that actually only 4 Gunthas of land was acquired.Therefore, by application dated 09.04.2019, his father madecommunication to the Special Land Acquisition Officer that he is ready toreturn the excess amount that has been received towards compensation.The State Government has started the process of refund from the fatherof the informant. Informant states that 2 Gunthas of land of theownership of his father is still remaining, but it was noticed that oneJaykumar Vardhaman Jain has got a sale deed executed in his favourfrom the co-accused. Raiskhan Pathan, Lalkhan Pathan, Kalim Pateland Anis Shaikh. There are three witnesses to the said incident. Thissale deed is nothing but a document to grab the compensation amount.The sale deed is in respect of 6 Gunthas of land from Gut No.114 whichwas not in existence at all and it was entered into on 24.01.2020 and the[4] appln-1821-2021 and 2267-2020.odt7/12 extract of the same was prepared on 27.02.2020. Those documentswere produced before the Government for getting the compensation. 4.Learned Advocates appearing for the applicants further submitthat in fact the nature of the dispute appears to be civil in nature, asunless the informant or his father get themselves declared as owner, itcannot be stated by them that 2 Gunthas of land is belonging to thefather is still remaining. Now, the informant and his father have in factenjoyed the excess amount of compensation and only an application hasbeen filed stating that they are ready to refund the excess amount. Thatprocedure by measuring the land again has not taken place. If at all theinformant had the knowledge in 2019 that the land to the extent of 2Gunthas is still remaining, then why they had waited till 01.10.2020 tolodge the FIR. The documents which have been collected by theinvestigating officer would show that in fact applicant Jaykumar Jain hadpurchased 56 R land from Kachru Kisan Tribhuwan on 18.01.2005. Itwas out of 3 H 53 R from Gut No.114 situated at village Banshendra,Taluka Kannad, District Aurangabad. Said Kachru Tribhuwan is also thevendor to the sale deed of the informant’s father. Thereafter, by anothersale deed dated 29.01.2005, Jaykumar Jain purchased another piece ofland admeasuring 50 R from said Kachru Tribhuwan from the said Gutnumber. Thus, in the year 2005 itself, Jaykumar Jain was holding twoplots of 53 R and 50 R from Gut No.114. Now, said Jaykumar Jain sold[5] appln-1821-2021 and 2267-2020.odt6 R land from his ownership to those four accused, who are in fact theoffice bearers of the Trust of Masjid and Madarsa, as the said portion oftheir property was acquired which they had purchased from the father ofthe informant. The Trust purchased 6 R from adjacent land from thesame Gut number. Therefore, there was no question of cheatinganybody. The compensation claim if at all it is to be made on behalf ofthe Trust, would be to the extent of 1 Guntha land which they hadproduced from the father of the informant and then it was acquired bythe State. Unnecessarily a dispute has been created by the informantand unless the boundaries got fixed and the land has identified, theinformant cannot agitate that what has been purchased by the Trust nowfrom Jaykumar Jain is not that of the ownership of the Jaykumar and,therefore, it would be unjust to ask the applicants to face the trial.5.Learned APP as well as learned Advocate appearing forrespondent No.2 vehemently submitted that all the documents, whichhave been collected in the investigation show that there is a dispute andon the facts, this Court cannot go much deeper into the same. Existenceof such property as is shown in the sale deed between Jaykumar andthe Trust itself is in question, as the statements of witnesses who havetheir own agricultural land in the vicinity would make it clear. On thebasis of such document then ownership cannot be transferred. Thestatements of other witnesses such as the Surveyor, Land Records[6] appln-1821-2021 and 2267-2020.odtOffice, Special Land Acquisition Officer etc. would support the fact ofacquisition of land. Therefore, this is not a fit case where the Courtshould exercise its powers under Section 482 of the Code of CriminalProcedure. 6.At the outset, it is to be noted that the informant has stated that hisfather had purchased 6 Gunthas of land in 1994. Out of that in 2Gunthas of land his father made construction. From remaining 4Gunthas, he had given 1 Guntha land in 2007 to Masjid and MadarsaTrust. This equation would show that 3 Gunthas of land might have beenremaining in the name of his father, but then in the year 2015, theGovernment acquired entire land which was in the name of his father i.e.6 Gunthas. He then says that in 2019 it was realized that actually only 4Gunthas of land has been acquired. On what basis he has stated thesaid fact itself is a question. If we consider the statements of SanjayBorde, Surveyor, who had carried out the measurement, MaheshJadhav, Measurer, Shivaji Bagul – Scrutiny Clerk, Sadanand Ingle -Nimtandar, Kundan Pardeshi – Deputy Superintendent of Land Records,Kannad, and Vinod Kale – Cadastral Surveyor, those statements wouldshow that they have come in picture after 2020 and for measurementthen it appears that the State Government wants to rely on the award. Infact, in the award based on the joint measurement the compensation hasbeen awarded. Even the informant accepts that the father has received[7]