SAIYEAD SIRAZUDDIN KUTBUDDIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 the petitioner has prayed for quashing the complaint dated 3.7.2004 bearing Criminal Case No. 59 of 2005 as well as order dated 22.1.2013 passed by Metropolitan Magistrate, Court No. 19, Ahmedabad. The facts which can be culled out from the record of the petition are as under.

(2.) THAT respondent No. 2 herein, filed a complaint against five persons including the present petitioner which came to be registered as Police Inquiry Case No. 40 of 2004 for the alleged offences u/s. 406, 420, 468, 471, 506(2), 294(b) and 114 of IPC. The record of the petition reveals that during the pendency of the inquiry before the learned Metropolitan Magistrate, the original accused Nos. 2 to 5 have expired. The complaint in question recites that the original complainant (respondent No. 2) has filed the present complaint on behalf of his mother on the ground that the mother of the complainant is aged, weak and sick and therefore on the basis of special power of attorney the present complaint is filed. The complainant has stated that the mother of the complainant entered into an agreement to sell with the present petitioner and three others to purchase the land bearing survey No. 917 of village Vatva, Near Ambica Tubes, Vatva on 18.4.2004 on non -judicial stamp of Rs. 50/ -. It is further averred in the complaint that the said agreement to sell was executed before the Notary Shri N.A. Sevak and two other persons viz. Jakirhusain Ahmedhusain and the complainant himself have attested the said agreement before the Notary. The complaint also recites other conditions of sale entered into between the parties and has averred that possession of the land in question has been handed over by the accused persons including the present petitioner to the mother of the complainant and the mother of the complainant is in possession of the land in question. The complaint also recites that after the said transaction the heirs of late Imambibi Abanmiya sent notice and thereafter have filed suit in the Civil Court being Civil Suit No. 3464 of 1999. The complaint also reveals that another suit being Civil Suit No. 968 of 2002 was filed by Fatmabibi Kutbuddin after due notice. It is contended by the complainant that after filing of the suit the complainant inquired from the present petitioner about the same. The complaint further reveals that thereafter the petitioner as well as one Nasruddin Kutbuddin Saiyad, one of the accused who expired, issued notice to the mother of the complainant denying the fact of agreement to sell dated 18.4.2004 and also amount of Rs. 5 lacs having been accepted by them as earnest money. It further recites that by such a legal notice the petitioner as well as Nasruddin denied the existence of the agreement to sell and contended that the signatures were made to approach the Municipal Corporation for de -reserving the land in question. It is further averred by the complainant that the mother of the complainant immediately filed Civil Suit No. 1485 of 2004 on 27.5.2004 before the City Civil Court, Ahmedabad and has obtained the order of 'status -quo'. It further reveals that the City Civil Court was pleased to appoint Court Commissioner and the report of the Commissioner indicates that the mother of the complainant is in possession of the same. It is further averred in the complaint that the complainant is ready and willing to comply with the order passed by the City Civil Court and is also ready to pay remaining amount of the sale price. It is also averred in the complaint that the witnesses have filed affidavit in the Civil Court stating that the banakhat dated 18.4.2004 is legal and valid.

(3.) HEARD Mr. A.J. Memon, learned Advocate for the petitioner, Ms. Sandhya Natani, learned Advocate for respondent No. 2 and Mr. Alkesh Shah, learned APP. for respondent -State.