Petitioners challenged issuance of process under Sections 468 and 471 read with Section 34 IPC over an allegedly forged consent deed used to mutate property names. Holding the forgery question required trial evidence and the civil suit did not bar the complaint, the High Court dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2024:BHC-AUG:27798
12-**Cri-WP-1548-2024.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
12 CRIMINAL WRIT PETITION NO. 1548 OF 2024
| 1] | Yahiya Abdulla Makrani Age: 72 years, Occu.Agri., |
|---|---|
| 2] | Khaled s/o Abdulla Makrani, Age: 70 years, Occu: Agri., |
| 3] | Zuber s/o Abdulla Makrani Age: 60 years, Occu: Agri., |
| 4] | Talha Abdulla Makrani, Age: 54 years, Occu: Agri., |
| 5] | Numan Abdulla Makrani Age: 50 years, Occu: Household, |
| All R/o. Manjarsumba Road, Patoda, Tq: Patoda, Dist. Beed. |
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| 6] | Zubeda W/o Idris Bashan Age: 78 yrs, Occu: Household, R/o: Ambad Tq. Ambad, Dist. Jalna …PETITIONERS (Orig. Accused) VERSUS |
| 1] | The State of Maharashtra Through Police Inspector, Police Station, Patoda |
| 2] | Mahemuda w/o Hasan Kardus Age 55 years, Occu: Household, R/o Patoda, Tq. Patoda, Dist. Beed …RESPONDENTS (R.No.2 Orig.Complainant) |
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Mr. N. L. Jadhav, Advocate for the Petitioners Mr. C. V. Bhadane, APP for Respondent N.1 Ms A. N. Ansari, Advocate for Respondent No.2
CORAM : Y. G. KHOBRAGADE, J.
DATE : 25.11.2024
ORAL JUDGMENT :-
Petitioners, Mr. Bhadane, the learned APP for Respondent No.1 and Mrs A.N. Ansari, the learned Counsel for Respondent No.2.
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No.2 lodged a complaint Misc. Criminal Application No. 145 of 2020 and made the specific allegations that her father Abdulla Bin Sayed Makrani, died on 01.01.1994. She and the accused/present Petitioners are having common interest in the landed property left by her father deceased Abdulla Bin Sayed Makrani. The description of the property is given in Clause (A), (B) of paragraph 2 of the complaint. However, after the death of her father Mr. Abdulla Bin Sayed Makrani, her name as well as all the sons and daughters of Abdulla Bin Sayed Makrani, mutated with the Revenue Authorities under Entry No.14781. The said property never partitioned for metes and bounds. So also, a civil suit bearing Special Civil Suit No.73 of 2008 is pending on the file of the learned Civil Judge Senior Division, Beed. However, on 04.02.2015, the accused have put forged the signature of the accused No.9 and executed consent-deed for recording the mutation entry, though the complainant and Salma, the sister of the complainant never consented. Mrs. Salma is residing in Arab Country. Therefore, the complainant prayed for inquiry under Section 156(3) of Cr.P.C.
prayer for inquiry under Section 156(3) of Cr.P.C. and placed the
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matter for recording of verification under Section 200 of Cr.P.C. Thereafter, the complainant herself entered into witness box and deposed about the contents of the complaint. The complainant further examined one witness Mr. Taher Hasan Bin Kardus, who deposed about putting false and bogus signature of his mother on Rs.100/- stamp paper, so also, the said stamp paper never been purchased in the name of her mother. The report was lodged with the police, but no such report was accepted. Considering the nature of offence, on 03.03.2022, the learned J.M.F.C. passed an order under Section 202 of Cr.P.C. and called the police report. Accordingly, on 19.05.2022, the Investigating Officer submitted report, stating about forge signature of Salma on Rs.100/- stamp paper. So also, the signature of the complainant is forged.
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revisional Court passed the impugned order and dismissed the revision holding that whether the consent deed is forged or genuine has to be adjudicated during the course of trial and process cannot be quashed on oral contention of the accused. Since the trial Court issued the process against the present Petitioner accused for the offence under Section 468 and 471 read with Section 34 of I.P.C. wherein the maximum punishment is provided upto 7 years and punishment upto 2 years for the offence punishable under Section 465. Therefore, as per Section 468 Cr.P.C. the limitation is provided three years for taking cognizance, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years. Since the process issued against the accused under Section 468 of I.P.C., wherein imprisonment upto 7 years provided, therefore, the complaint is not barred by limitation and the order of issuance of process does not fault.
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consider the said fact. Hence, the impugned orders are illegal, bad in law and prayed for quash and set aside the same.
“11. It may be mentioned here that Muslim Jurisprudence, where theology and moral concepts are found sometimes mingled with secular utilitarian legal principles, contains a very elaborate theory of acts which are good (because they proceed from 'hasna'), those which are bad (because, they exhibit "qubuh"), and those which are neutral per se. It classifies them according to 'varying degrees of approval or disapproval attached to them (see Abdur Rahim's "Muhammadan Jurisprudence" P. 105). The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered "prohibited". The binding force in 'future of such a renunciation would, even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part.. I In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim law will be found, on investigation, to be completely in consonance with it.
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invalid and void", correctly lays down that such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued. After considering several decisions, including the Full Bench of, the Madras High Court in Asa Beevi’s case (supra) Suleman, C.J., observed at page 575:”
“12. Govind Ramchandra Deshmukh, Accused No.6, who has filed Criminal Writ Petition No.163 of 2010, claims that the complaint does not make any specific allegation against him to prosecute him. The only allegation against Accused No.6 Govind Deshmukh is that he has filed Civil Suit against the complainant and others and he got the notice registered with the Sub Registrar. The Petition refers to the contents of the complaint to show that no case was made out against Accused No.6. It is claimed that Magistrate should have seen that except some vague, general statements, there was nothing against Accused No.6 to make him face the criminal prosecution. Accused No.6 Govind Deshmukh was not party to any of the sale deed in favour of the complainant and his witnesses, nor he was made aware about execution of the same. The only allegation made against Accused No.6 is that on 14th August 2007, he conspired with Accused No.4 Shripad Deshmukh and got registered notice under Section 52 of Transfer of Properties Act. Conspiracy has been alleged only on such basis. Only because Accused No.4 Shripad Deshmukh was witness in the notice, does not amount to commission of offence. It is not the case of the complainant that before execution of the sale deed, the complainant has taken consent of Accused No.6 Govind Deshmukh or had issued any public notice. For such reasons,
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Accused No.6 Govind Deshmukh has also claimed that the process issued against him, needs to be quashed.”
“28. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order
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need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, which reads thus:
“51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
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accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.”
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concerned Police Station under Section 202 of Cr.P.C. On 19.05.2022, the Investigating Officer of Patoda Police Station, submitted inquiry report and after considering the said report, the process issued against the present Petitioners for the offence punishable under Sections 468, 471 read with 34 of the I.P.C.
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not tenable. However, on perusal of prayer of the suit, it appears that the present complainant who is the co-sharer has prayed for decree of partition and possession. In the said suit, the complainant has not prayed for declaration that the consent deed executed and the application for deletion of the name of the complainant and her sister by the accused persons, are illegal. On the contrary the complainant specifically alleged about forging her signature and signature of her sister Mrs. Salma on the application submitted with the Talathi. Therefore, the point involved in the present complaint whether the application dated 04.02.2015 and signature appearing on the stamp paper, are forged or not and said fact cannot be decided without full fledge trial after providing opportunity to lead evidence by both the parties. Therefore, I do not find that the impugned orders passed by both the Courts below are perverse and no any substantial grounds are set out to interfere with the finds of both the Courts below. Hence, the Writ Petition is dismissed. Accordingly, Rule is discharged.
[ Y. G. KHOBRAGADE, J. ]
SMS
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2 issues framed by the court
Whether the process issued for forgery of signatures on a consent deed for mutation could be quashed on the ground that a parallel civil suit was pending
Whether the complaint and issuance of process were barred by limitation
Colour shows how this judgement treated each authority
Gulam Abbas Vs. Haji Kayyum AliRelied on¶8
Gulam Abbas Vs. Haji Kayyum Ali, 1973 AIR (SC) 554 · Who else cites this
Shripad & Others Vs. The State of Maharashtra & OthersRelied on¶9
Shripad & Others Vs. The State of Maharashtra & Others, 2014 AllMR (Cri) 2123
Prabhakar Ramchandra Patki Vs. The State of Maharashtra & AnotherDistinguished¶10
Prabhakar Ramchandra Patki Vs. The State of Maharashtra & Another, 2010 AllMR(Cri) 784
Kinnaresh Trimbak Borkar Vs. State of Goa & Anr.Relied on¶11
Kinnaresh Trimbak Borkar Vs. State of Goa & Anr., 2021 AllMR (Cri) 4064
Lalankumar Singh & Ors Vs. State of MaharashtraRelied on¶12
Lalankumar Singh & Ors Vs. State of Maharashtra, 2022 LiveLaw (SC) 833
4 provisions across 2 enactments
Yahiya Abdulla Makrani
Khaled s/o Abdulla Makrani
Zuber s/o Abdulla Makrani
Talha Abdulla Makrani
Numan Abdulla Makrani
Zubeda w/o Idris Bashan
Y. G. Khobragade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
