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Mohd. Riaz v/s Zubir Ahmed & Others


Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    CRMC No. 576 of 2015 & IA No. 01 of 2019

    Decided On, 26 April 2019

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE SANJAY KUMAR GUPTA

    For the Appellant: Pranav Kohli, Advocate. For the Respondents: R1, None, R2 to R6, Gupta, Advocate.



Judgment Text


1. Heard.

2. Through the instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashment of complaint filed by respondent No.1 under Sections 166, 167, 467, 468 and 471 RPC before the learned Judicial Magistrate 1st Class, Thannamandi and also quashment of the order dated 05.11.2015, passed by the learned Judicial Magistrate 1st Class, Thannamandi, by virtue of which process has been issued against the petitioner and respondent Nos.2 to 6, herein.

3. In this petition, it has been stated that respondent No.1 is nephew (brothers son) of the petitioner. It is stated that apart from other landed property, the grandfather of the petitioner and his brother was owner and in possession of land measuring 05 Kanals 05 Marlas in Kharsa No.688 situated at Badha Kanna, Tehsil Thannamandi, District, Rajouri. The father of the petitioner inherited his share in the ancestral property land measuring 02 Kanals and 12 and half Marlas, which was further devolved to the petitioner and his brothers. The share of the petitioner came to be 17 Marlas and 03 sarsai. Similarly, respondent No.1 and his brother also got the share of their father. It is further stated that all the stakeholders of the land measuring 05 Kanals 05 Marlas situated at Khasra No. 688,(except father of the petitioner and respondent No.1) had migrated to Pakistan and settled there and had expired.

4. Learned counsel for the petitioner submits that none of the surviving legal heirs of the stakeholders, who had migrated to Pakistan have claimed any right over the property situated in Khasra No.688, therefore, a virasat intiqal was attested on 07.03.2011, with respect to land measuring 05 Kanals 05 Marlas in favour of the petitioner and his brothers as well as his brothers sons, i.e., respondent No. 1/complainant and his brothers. The said mutation was attested on the representation of respondent No.1s real brother and the petitioner had no role at all in getting the mutation attested. It is stated that the petitioners uncle (brother of petitioners father) was the maternal grandfather of respondent No.1 and he died in 1950. The maternal grandfather of respondent No.1 had no share in Khasra No.688, so respondent No.1 does not have any right title, interest or claim over the share of his maternal grandfather.

5. Learned counsel for the petitioner contends that the respondent No.1/complainant with a mala fide intention to grab the share of petitioner had tried to dispossess the petitioner by manipulating the entries in the revenue record and has resorted to malicious criminal complaint to somehow grab the share of the petitioner. It is contended that the allegations as made in the complaint is that the petitioner has conspired with the revenue authorities and got a mutation dated 07.03.2011 attested in his favour. It is further contended that the petitioner has no role in getting the mutation attested and it was Amjad Parvez (complainants brother), who had applied for the mutation of the land bearing Khasra No.688 and even if it is assumed that there is dispute between the parties, the same is civil in nature.

6. The petitioner had earlier filed a suit for declaration/partition of the land falling under various Khasra numbers including Khasra No.688 total measuring 80 Kanals is the proprietary land of the petitioner as well as brothers and mother of respondent No.1. Thereafter, a compromise was entered into between the petitioner and those persons, on which, a decree was passed by the court below. On the basis of the said compromise, the learned civil court has specifically recorded in the judgment that the petitioner and his brothers and mother of respondent No.1 are co-sharers in all Khasra numbers of disputed land including under Khasra No. 688. The said compromise deed was executed on 31.09.2012 and judgment was rendered on 03.12.2012. The complainant/respondent No. 1 has never raised any issue of mutation dated 07.03.2011 before the civil court rather he admitted that he is a co-sharer in the property. It is state that despite the fact that the dispute between the parties was set at rest by the order of the civil court, the respondent No.1, herein (complainant) has filed a complaint under Sections 166,167, 467, 468 and 471 RPC before the court of learned Judicial Magistrate First Class, Thannamandi, who has taken cognizance in the matter on 05.11.2015.

7. Contesting respondent no.1/complainant has not filed any objection; whereas rest of respondent Nos.2 to 6 have filed their objections stating therein that respondent no.4 is the cousin brother of the petitioner; that the respondent no.1 is the nephew (brother's son) of the petitioner; that the grandfather of the petitioner and his brothers was owner in possession of the land measuring 5.5 kanal in khasra no.688 situated at Badda Kanna, Tehsil Thanna Mandi, District Rajouri. Out of 5.5 kanal of land, father of the petitioner inherited share to the extent of 2 kanal 12.5 marlas. As per succession, the respective shares of the land in question were devolved upon the respondent no.1 and his brother. In this regard a Mutation dated 07.03.2011 has already been attested on 20.08.1975 in favour of petitioner's father with regard to land measuring 02 kanal 12.5 marlas situated at Badda Kanna, Tehsil Thanna Mandi, District Rajouri; that as respondent no.4 is petitioner's cousin brother and is well versed with the family clan and their shares in the Property. Moreover, the respondent no.4 has joint family shares in the property with the petitioner and the respondent no.1. Therefore, the answering respondent is well aware of the fact that all these Stakeholders above had their shares in the land measuring 5.5 kanal situated at Village Badda Kanna. Moreover, the respondent no.4, who has migrated to Pakistan has never claimed his right to their shares in the said land. It is in view of this fact that the virasat intiqal was attested on 07.03.2011 with respect to the land measuring 5.5 kanal in favour of petitioner, his elder brother and his brother's sons including the successors of Mohd. Iqbal; that the Mutation was attested on the representation of the respondent no.1's real brother (Amjad Pervaiz), and petitioner has no role in the same, the same is also correct to the knowledge of the answering respondents; that respondent no.1's intention had always been to grab the share of his maternal grandfather who had already died in 1950. In this regard, it is submitted that the respondent no.1 had never, before filing the impugned complaint taken any step for claiming or filing any civil proceedings for the purpose of claiming the alleged share of his maternal grandfather. It appears to the answering respondent that having sensed a civil remedy being the appropriate remedy has initiated a criminal proceeding only with the purposes of harassing and coercing the petitioner. As already stated in para under reply that the respondent no.1's maternal grandfather has had no right title or interest over the land in question; that contents of para 5 & 6 are correct, true and admitted to the extent that the petitioner had no role in getting the mutation attested. It was only the complainant's brother namely Amjad who had applied for the mutation of land falling under Khasra no.688 and admittedly he has not been made party, in the case/complaint. Be that as it may, the mutation has been attested as per the legitimate and respective share of all the successors as per the compromise and Decree dated 03.12.2012 passed by the court of learned Sub Judge, Rajouri; that the dispute is civil in nature and criminal proceedings have been initiated with sole purpose of wreaking vengeance against the shareholders at the behest of Respondent No.1; that respondent no. 4 was the witness in the compromise which was arrived at between the petitioner, respondent no.1 and his brothers and his mother. The answering respondent is privy to the compromise entered into between the parties and as a matter of fact, the statement of respondent no.4 was also recorded before the learned Magistrate in which he had specifically stated that the compromise has entered into. It is submitted that the land measuring 2 kanal 12.5 marlas was devolved upon the legal heirs of Hassan Mohd. The compromise entered into between the party which is duly produced before the Magistrate in the civil suit. The mutation was recorded on 07.03.2011, whereas the same was executed on 30.09.2012 and the Judgment in the civil court was passed on 03.12.2012. Respondent No.1 never questioned the attestation of Mutation was well within the knowledge of respondent no.1 at that point of time i.e., prior to the passing of the compromise judgment and before 03.12.2012, the Mutation has been attested on the basis of compromise, thus, the same cannot be questioned or disputed by the respondent no.1 or any other shareholder for that matter.

8. I have considered the rival contentions of learned counsel for the petitioner as well as learned counsel for respondent Nos.2 to 6.

9. From the perusal of record, it is evident that respondent no.1 filed a criminal complaint before JMIC Thanamandi against petitioner herein, Patwari of area, Niab Tehsildar of area and other persons, and court below on 11.11.2014 sent the complaint to SHO P/S Thanamandi for investigation under section 202 Cr.P.C. Thereafter, it appears that without waiting for report from SHO, court below on 20.3.2015 directed SSP to entrust the investigation to Dy.S.P. It further appears that on 05.11.2015 after receipt of report, court took cognizance under section 166/167/476/468/471 RPC against petitioner and other persons.

10. In the complaint, it has been stated by the complainant that he and Mohd. Riaz (petitioner herein) are residents of Jammu. Accused, Mohd Farooq is resident of Saaj and accused, Mohd. Arif and Mohd. Tariq are residents of Thannamandi and accused Nos. 1 and 2 are employees of the Revenue Department. That Mohd. Riaz, accused No. 3 is one of the co-sharer in land measuring 05 Kanals and 05 Marlas under Khasra No. 688 situated at Village, Thannamandi. However, since 35 to 40 years, he is in illegal occupation of the land. After the death of parents, Mohd. Riaz in conspiracy with Patwari Halqa, accused No. 2 got prepared mutation No.250 dated 01.03.2011 and got it attested from Tehsildar. Thereafter, Riaz Ahmed, accused No.3, during the attestation of mutation, has got entered the disputed land in his favour and thereafter in conspiracy with accused No.4, sold 17 Marlas of land on 09.05.2014 in favour of accused Nos. 5 and 6 and got the Sale Deed registered before the Sub Registrar, Thannamandi. The accused No. 3, Mohd. Riaz (petitioner herein) as per law was entitled only for 03 Marlas of land and was also competent to sell 03 Marlas of land. However, accused No. 3 in the conspiracy with accused Nos. 1, 2, 4 and 6 got attested the mutation from accused No. 1, which is not maintainable. Accused Nos.1 and 2 for some extraneous consideration has misused the document and committed forgery of mutation and thereby illegally sold the land of complainant under Khasra No. 688. That accused Nos.1 and 2 in conspiracy with accused Nos. 3 to 6 got attested the mutation No. 250 and accused No. 3, (petitioner herein) has thus deprived the other co- sharer of their share.

11. From the whole facts & circumstances of the case, it is evident that a civil suit regarding land under dispute and other lands was pending between private parties before Sub Judge Rajouri, where respondent no.1/complainant was also a party; in that suit already compromise was effected which has been attested by Notary on 03.09.2012 and decree was passed on 03.12.2012 .

12. From bare perusal of the allegations made in the present complaint, even if taken as it is, do not make out ingredients of the criminal offence, though at the most they may attract civil dispute; case is thus predominantly of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. If the matter, which is essentially of a civil nature, has been given a cloak of criminal offence, the JMIC should be very careful in issuance of process. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to exercise a great deal of caution, because calling a person to stand trial in criminal proceeding is a serious matter. When the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by civil court then it is apparent that complainant wants to manipulate and misuse the process of Court.

13. Section 561-A Cr.P.C. serves a salutary purpose that a person should not undergo harassment litigation, even though no case has been made out against him. A matter which essentially involves disputes of civil nature, should not be allowed to be subject matter of a criminal offence, the latter being a shortcut of putting pressure for settling the civil dispute.

14. The power under Section 561-A Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.

15. The Supreme Court in case titled Indian Oil Corporation Vs. NEPC India Limited, ( AIR 2006 SC 2780) has observed that, ''it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal case. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/creditors. Such a tendency is

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seen in several family dispute also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any efforts to settle civil disputes and claims, which, do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.'' 16. Similar view was expressed in the case of G. Sagar Suri Vs. State of U.P. ( 2000 Cri.L.J. 824). In the said decision, it is observed that, ''It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process, a criminal court has to exercise a great deal of caution. For the accused it is a serious matter." 17. As already held, admittedly a civil suit was filed and a decree was obtained by parties on the basis of compromise duly executed between them. Viewed from any angle, one cannot escape the conclusion that the dispute is of civil nature and the ingredients of Sections 166, 167, 467, 468 and 471 RPC are not made out. Accordingly, this petition is allowed. 18. Consequently, complaint filed by respondent No.1 under Sections 166, 167, 467, 468 and 471 RPC before the learned Judicial Magistrate 1st Class, Thannamandi as well as order dated 05.11.2015, passed by the learned Judicial Magistrate 1st Class, Thannamandi, are quashed.
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