Rashida Kamaluddin Syed & Anr vs Shaikh Saheblal Mardan (Dead)Through ...

To understand the controversy raised in the appeal, relevant facts may be stated in brief.

One Shaikh Saheblal Mardan (hereinafter referred to as 'the complainant') was resident of Pune. Appellant- accused No. 1 Smt. Rashida Kamaluddin Syed is his daughter, and appellant accused-No.2 Kamaluddin K. Syed is husband of accused No. 1 and son-in-law of the complainant. It was the case of the complainant that he was the owner of a bungalow which he sold in May, 1992 through accused No. 2 and deposited the amount of consideration in Bank. The accused No. 2 dishonestly represented to the complainant that he was having some proposals of land for sale and he would get it at a cheaper rate if the complainant was interested in such investment. It would earn more profit to the complainant and he would also get exemption from payment of capital gains. But the complainant wanted to go on Haj (Saudi Arabia) for a month on June 1, 1992. The accused No. 2 again dishonestly represented to the complainant that he could very well go to tour and the accused No. 2 would invest the money in suitable and beneficial proposals. Relying on such dishonest representations by accused No. 2, the complainant gave him five blank signed cheques as also withdrawal slips so as to enable appellant No. 2 to invest amount in purchase of property and to pay such amount to vendors. It was the case of the complainant that when he returned from Haj, he found that an amount of Rs. 5,15,000/- had already been withdrawn by appellant No. 2 but no property was purchased in the name of the complainant. On further inquiry, he found that accused Nos. 1 and 2 had joined hands and their common intention was to grab money of the complainant. He made inquiry to appellant No. 2 but the latter gave evasive reply. Moreover, the accused purchased an open plot in the joint name of accused No. 1 and complainant for Rs.2,70,000/-. Accused No. 1 also sent a notice through her advocate stating therein that the plot was purchased by her with her own money. She also filed a false complaint on August 28, 1992 against the complainant and his sons for offences punishable under Sections 384, 511, 504, 506 read with 34 of Indian Penal Code (IPC) alleging criminal intimidation and extortion. The complainant was thus convinced that his daughter and son-in-law (accused Nos. 1 and 2) had cheated him and committed criminal breach of trust. He, therefore, filed Criminal Complaint No. 605 of 1993 in the Court of Judicial Magistrate, First Class (A.C. Court), Pune on March 15, 1993 for offences punishable under Sections 406 and 420 read with 34 IPC. The Judicial Magistrate, First Class after recording statement of complainant issued process under Section 204 of Code of Criminal Procedure, 1974 (hereinafter referred to as "the Code"). During the pendency of the proceedings, however, complainant died in November, 1996.

Three sons of deceased-complainant [(i) Shaikh Shaiuddin, (ii) Shaikh Nuruddin; and (iii) Shaikh Nizamuddin] made an application (Ex. 21) on January 17, 1997 for permitting them to continue prosecution against the accused persons. The learned Magistrate by an order below Ex. 21 dated May 23, 1999 granted the application relying upon a decision of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra, 1967 (1) SCR 807 : AIR 1967 SC 983 and allowed Shaikh Sahabuddin respondent No. 1 herein to continue the prosecution against the accused persons. It appears that the said order had not been challenged by the accused and it had attained finality. Name of respondent No. 1 was accordingly, entered on May 14, 2000. Prosecution witnesses were also examined thereafter. On March 3, 2004, written arguments were submitted by the appellants-accused praying for their discharge. On August 4, 2004, an application was made by the appellants-accused under Section 239 of the Code for their discharge (Ex.1) contending that no case was made out against them. The said application, however, was rejected by the Trial Court on August 25, 2004 holding that there was a prima facie case against the accused. Being aggrieved by the said order, the accused preferred revision which was also dismissed by the Sessions Court observing that there was a prima facie case against the accused for offences punishable under Sections 406, 420 read with 34 IPC. A Writ Petition against the said order met with the same fate, which has been challenged in the present appeal.

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.

Finally, the contention that a civil suit is filed by the complainant and is pending has also not impressed us. If a civil suit is pending, an appropriate order will be passed by the competent Court. That, however, does not mean that if the accused have committed any offence, jurisdiction of criminal court would be ousted. Both the proceedings are separate, independent and one cannot abate or defeat the other.

The appeal is, accordingly, dismissed.