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. ... 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. 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 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 5 charge, any property, or any interest therein, and which contains any false statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may 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 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 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 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 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 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