SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 1 S.B. Cr. Misc. Petition No.1146/2005 Jasraj & Ors. vs State of Rajasthan & Anr. DATE OF ORDER : - 9.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.VS Choudhary, for the petitioners. Mr.VR Mehta, Public Prosecutor. Mr.RR Choudhary, for the respondents. <><><> Heard learned counsel for the parties and perused the record. The petitioner has challenged the order of the trial court dated 19.11.2003 by which the trial court took cognizance for offence under Section 420, 467, 468, 471, 120B IPC . As per the allegation of the complainant Babulal levelled in his complaint he and his brothers are Khatedar tenant of land of Khasra no.2926 and 2924 measuring 104 bigha 12 biswas in village Chrai. The complainant himself has 1/8th share in the said land and he was in possession of the property. The complainant alleged that petitioners- SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 2 accused forged and fabricated one sale deed dated 4th May, 1975 to grab the complainant's agricultural land. They submitted that sale deed before the Patwari of the concerned area and got the mutation in their favour in the year 1975 itself. The complaint was filed in the year 1998 specifically on 6th July, 1998 by the complainant in the court with the allegation that recently he came to know from Patwari concerned that on the basis of the forged and fabricated sale deed, the mutation has been open in the name of purchasers. The complainant also stated that he submitted a regular appeal under Section 75 of the Rajasthan Land Revenue Act before the court of Addl. District Collector, Jodhpur for setting aside the said mutation. The appeal was allowed and the mutation in the name of the accused has already been set aside. The complainant submitted that accused no.5 and 6 were also party in fabricating the document. The said complaint was forwarded to the concerned Police Station for investigation by the court under Section 156(3) Cr.P.C. In investigation, statement of witnesses were recorded, finger prints on the sale deed were got examined from the Finger Print Expert SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 3 and it is found that on the alleged sale deed the thumb impression of one of the seller – the complainant Babulal tallied with his own thumb impression whereas thumb impressions of rest of the sellers - three real brothers of the complainant were not of theirs. It may be worthwhile to mention here that according to the complainant he and his all brothers were minor in the year 1975 when the alleged sale deed was prepared by the accused. Learned counsel for the petitioners submitted that even the accused petitioners were also minor and the stamp on which sale deed was executed was purchased on 21.4.1975 by their father Sirdara Ram, which is apparent from the original sale deed available on record. According to learned counsel for the petitioners in a case where a deed was executed in the year 1975 and was acted upon without any delay in the year 1975 itself and relevant revenue entries were made in the record in the same year, a criminal complaint has been filed by the complainant after about 23 years and that too, after decision of the appeal against the mutation order dated 27.12.1975. According to learned counsel for the petitioners, the order dated SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 4 25.2.1997 passed by the learned Addl. Collector, Jodhpur setting aside mutation in the name of petitioners itself has been set aside by the court of Divisional Commissioner, Jodhpur in Mutation Second Appeal No.22/98 by order dated 30.9.1999. According to learned counsel for the petitioners, against the order dated 30.9.1999, which is in favour of the petitioners, the complaint and his brothers have preferred revision petition before the Board of Revenue, which is pending as per the knowledge of the petitioners. It is submitted that the prosecution for alleged commission of offence of the year 1975 lodged in the year 1998 deserves to be quashed only on the ground that in fact, it is a matter of civil dispute and the matter has been examined by the learned Addl. Collector as well as by the Divisional Commissioner in regular course and matter is pending before the Board of Revenue. It is submitted that in the complaint there is no explanation for not filing the complaint with promptness. It is submitted that it may be true that mere on the ground of delay, the prosecution cannot be thrown out, but here in this case, it is not a case of mere delay because of the reason that an independent SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 5 agency – the revenue authorities entered mutation in the year 1975, therefore, the existence of document in the year 1975 cannot be denied and allegation of its forgery in the year 1999 cannot be examined in criminal proceeding because of the reason that the said document was duly entered in the revenue record for opening mutation in the year 1975 and it cannot be believed that if the document was forged then the accused persons will keep it only for the purpose of record for more than 20 years and would not take possession forthwith after mutation. This fact is relevant because of the reason that complainant stated that he is in possession of the agricultural land then according to him, the said document dated 4th May, 1977 was never acted upon, ineffect for taking possession by the accused persons or their father. In totality, the entire case of the complainant on the face of it is highly impossible. In fact, the matter was taken up before the proper authorities by filing appeal by the complainant. It is also submitted that the complainant filed the appeal against the mutation dated 27.12.1975 in the year 1992 but did not lodge any criminal proceedings against the accused till 6.7.1998, i.e., for six SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 6 years from the time of his getting knowledge of the sale deed. According to learned counsel for the petitioners, the complainant just to put undue pressure upon the petitioners launched proseuction so that they may leave the property and may not contest the claim of the complainant and his brothers with respect to the immovable property. According to learned counsel for the petitioners when one of the brothers of sellers own thumb impressions was found proved from the prosecution evidence itself then the complainant was party to the sale deed and, therefore, he could not have complained against the sale deed. The fact of thumb impression of Babulal on the sale deed is mentioned in the challan papers itself by the prosecution. Learned Public Prosecutor submitted that the alleged sellers were minor at the time of sale of the property in dispute and in view of the positive finding given by the Finger Print Expert that the finger print of Kishana Ram is not tallying with his finger print which has been shown on the sale deed, therefore, the sale deed dated 4.5.1975 is forged sale deed and that has been executed to garb the properties of the minors. Therefore, there was sufficient SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 7 material before the trial court for proceeding against the accused after taking cognizance for the offence mentioned above. I considered the submissions of learned counsel for the parties and perused the record. The sale deed in question was executed on 4.5.1975 i.e., about 23 years ago from the time of filing of the criminal complaint by the complainant against the petitioners-accused. That sale deed was acted upon and was presented before the revenue authorities, who opened mutation no.771 on 27.12.1975 and entered the names of purchasers-petitioners in the revenue record. The complainant preferred appeal to challenge the mutation no.771 dated 27.12.1975 in the year 1998. That appeal was allowed but in second appeal, the first appellate authority's order was set aside and the matter is pending before the Board of Revenue. The criminal complaint has been filed after about 23 years and that too, after decision of the first appellate authority in the matter of mutation for the land in question, which was sold by the sale deed dated 4.5.1975. As per the prosecution evidence itself thumb impression of SB Cr. Misc. Petition No.1146/2005 Jasraj & Ors. Vs. State & Anr. 8 one of the brothers, who are sellers is found proved from the finger print expert report. The stamp was purchased by the accused persons' father in the year 1975. There is no direct evidence on record of fabricating the sale deed dated 4.5.1975 by the accused persons. It appears that a civil/revenue right matter has been converted after inordinate delay into criminal prosecution without there being any evidence that the accused have fabricated and forged the documents. In view of the above reasons, proceeding with the prosecution after such an inordinate delay in the facts of the case will nothing but will be abuse of process of the court. In view of the above reasons, this misc. petition is allowed and the criminal prosecution in criminal case no.444/2001 is tushed and the order of the trial court dated 19.11.2003 is set aside. (PRAKASH TATIA), J. c.p.Goyal/-