1 WP-447-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 447 OF 2010 Shri Suresh Gyanchand Kumar & Ors. ... Petitioners vs. The State of Maharashtra & Anr. ... Respondents Mr. R.D.Suryawanshi,Advocate, for the petitioner Mrs. V.R.Bhosale, APP, for the respondent No.1- State. Mr. Atul G.Damle,Advocate, for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 24th March, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. This petition is filed by the petitioners to quash the proceedings in the Charge Sheet No. M-I-3/2009 filed by Shanti Nagar Police Station, Bhiwandi, District Thane. 3. To state in brief, one Sirajuddin, who claims to be one of the co- owners of the lands survey No.122 Hissa Nos. 2/2, 2/3 and 2/4, situated at Village Vadape, Taluka Bhiwandi, District Thane, lodged a complaint in the Court of J.M.F.C. Bhiwandi, contending that he and other co-owners except Tufal Ahmed, 2 WP-447-10.sxw had entered into an agreement for sale of their shares in the land with accused No. 1 Abdullah Mujibullah Khan and the accused No.1 had paid an amount of Rs.30 lakh as a part-payment and balance amount of Rs.75 lakh was to be paid within a short time and thereafter sale deed was to be executed. Accused No.1 issued a cheque of Rs.3,50,000/- and four cheques of Rs.2 lakh and balance amount was to be pad within four months. The said cheques were dishonoured. The remaining amount was also not paid. On 20.5.2008, the complainant and other co-owners came to know that accused Nos. 1, 2, 3, 5 and 6 and six unknown persons had conspired and they got executed a false power of attorney in favour of the accused No.1 Abdullah Mujibullah Khan. The six unknown persons impersonated the complainant and other co-owners and executed the power of attorney, purporting to be executed by the complainant and other co-owners. On the basis of that power of attorney, the accused No.1 executed sale deed of the disputed land in favour of the present petitioners. The petitioner Nos. 1 and 2 are shown as accused Nos. 5 and 6 in the complaint while petitioner No.3 is a company, of which petitioner Nos. 1 and 2 are the directors. The learned magistrate directed the police to investigate the case under sec. 156(3) of Cr.P.C. and to submit a report. After investigation, police filed charge-sheet against all the accused persons, including the petitioner Nos. 1 and 2. 3 WP-447-10.sxw 4. The learned Counsel for the petitioners contended that even before the complaint was filed on 18.6.2008, the petitioners had filed the suit in the High Court in respect of the said property and on 1.4.2008, ad-interim relief was granted. That ad-interim relief was confirmed and even appeal preferred against the ad-interim relief was dismissed. According to him, it is purely a civil dispute. The petitioners are the bonafide purchasers for value without any knowledge of the alleged conspiracy. According to him, the petitioners had also issued a public notice before purchasing the property and there is no reason why they should face the trial and therefore the charge-sheet against them needs to be quashed. 5. The petition is strongly opposed on behalf of the respondent No.2, who is the original complainant. 6. On perusal of the record, it appears that there is no dispute that respondent No.2 Sirajuddin and five others are the co-owners of the suit property. According to the respondent No.2, he and other co-owners except Tufail Ahmed, had entered into an agreement to sell the suit property to accused No.1 Abdullah Mujibullah Khan at the rate of Rs.900/- per sq. ft. Out of the consideration amount, a sum of Rs.30 lakh was paid and balance amount of consideration was 4 WP-447-10.sxw to be paid. The agreement for sale does not confer any title over the property of accused No.1. It appears that on 6.11.2007, a power of attorney purporting to have been executed by the complainant and five other co-owners was presented for registration whereby accused No.1 Abdullah Mujibullah Khan was given power of attorney to deal with and dispose of the property. The photographs of the six persons, who impersonated themselves as the complainant and other five co-owners, are sown on the power of attorney. According to the complainant, neither he himself nor any of his co-owners was present for the purpose of execution of the power of attorney and the photographs of the executants on other documents are not of the complainant and other co-owners. Thus, the said power of attorney was forged by six persons impersonating the complainant and other co-owners. If the forged power of attorney would not have been there, the accused No.1 Abdullah Mujibullah Khan had no authority to deal with the property or to sell out the said property to anybody. the petitioners claimed that they are the bonafide purchasers for consideration and therefore there is no reason that they should be prosecuted. However, certain facts are suspicious. It is material to note that the forged power of attorney was executed and registered on 6.11.2007 and on the very next day i.e. 7.11.2007, the sale deed of the property was executed in favour of the petitioners by said Abdullah Mujibullah Khan. 5 WP-447-10.sxw 7. The learned Counsel for the petitioners contended that a public notice was issued calling objections before the sale deed was executed. It appears that notice was issued by publication in Free Press Journal dated 26.10.2007 and on 25.10.2007 in one Marathi Newspaper "Konkan Sakal" published from Thane. It is material to note that the complainant and other co-owners are Muslims residing at Bhiwandi. There is reason to believe that the person, who published notice was aware that the real owners may not come across the notice published in Free Press Journal from Mumbai and Marathi newspaper published from Thane. It is common knowledge that Bhiwandi is mainly populated by Muslim community where Urdu is a common language. There is nothing to show that any such notice was published in Urdu newspaper having wide circulation in that area. Another important factor is that according to the petitioners, they purchased the property on 7.11.2007 and the notice was published on 25.10.2007 and 26.10.2007 in two different newspapers. It cannot be a coincidence that till that date, there was no power of attorney executed in favour of said Abdullah. If till 26.11.2007 there was no power of attorney in favour of Abdullah, the petitioners could not have entered into agreement with him. The public notices revealed that the petitioners had entered into agreement for sale of the disputed land with said Abdullah. Thus, it is clear that when the public notice was issued, Abdullah had no authority. Even he did not claim to have authority. On 6.11.2007, Abdullah got executed a fake 6 WP-447-10.sxw power of attorney with the help of six unknown persons impersonating themselves as complainant and other co-owners and immediately on the next date, the petitioners got sale deed executed. This creates serious suspicion about the conduct of the petitioners. From the facts noted above, prima facie, it appears that the petitioners got the sale deed executed from the persons who had no authority to deal with the same. I specifically asked the learned Counsel for the petitioners whether they are willing to execute deed of reconveyance of the said property in favour of the real owners, but he flatly refused. Taking into consideration the facts and circumstances and that after investigation, police found that the present petitioners are also involved in the conspiracy, I do not see any valid reason to quash the proceedings. 8. For the aforesaid reasons, the petition stands dismissed. (J.H.BHATIA,J.)