KAMARALI CHANDBHAI MOMIN Vs. HASANALI CHANDBHAI MOMIN

JUDGEMENT

(1.) THE appellant, claiming to be witness and an affected party, preferred this appeal under Section 378 of the Code of Criminal Procedure and called into question the judgement and order dated 25. 04. 2006 of learned Chief Judicial Magistrate, Ahmedabad (Rural) in Criminal Case No. 1793 of 2001. The original complainant and the accused person, respondent no. 1 herein, are brothers and after investigation of the complaint, charge-sheet for the offences punishable under Sections 465, 467, 468, 471, 406, 420 and 427 of IPC appears to have been filed. Although the appellant herein is also a brother and claims to be original witness, he had never ever made any complaint or supported the prosecution by being a witness before the court. The appellant sought leave to appeal and the leave appears to have been granted on the basis of his grievance that in the transactions of sale of land by the respondent on the basis of power of attorney executed by other family members, including appellant, he had lost his share in the property without having actually executed any power of attorney authorizing the respondent to sell the land. The appellant had relied upon judgement of the Punjab and Haryana High Courts in Sukhdev Singh Rana Vs. State of Haryana [1996 Cri. Law General 3060], wherein it is observed that the victim or the sufferer of an offence, who had first-hand information of the incident in question, could not be excluded from the wider connotation of the word "complainant".

(2.) WHILE perusing the impugned judgement acquitting the respondent, it was conceded that not only that the prosecution had completely failed in bringing home the charge by leading cogent evidence but the appellant had never entered the box to voice his grievance or support the prosecution, nor had he ever filed his own complaint, nor had he ever given legal notice even to allege that his share in the land was sold without his authority. Therefore, it clearly appears that the appellant has straight away approached this Court by filing the present appeal and made serious allegations and grievances without ever substantiating any of his serious allegations about commission of serious offences. Thus, in short, the appeal is based exclusively on the supposed grievances and mere allegations without any foundation of facts proved before any court.

(3.) LEARNED senior advocate Mr. Y. S. Lakhani, appearing with Mr. Vijay N. Raval, learned advocate appearing for the respondent, submitted that the appeal was not filed bona fide and in fact the appellant had received his share from the proceeds of sale of the land in question. He pointed out from the record that there was not an iota of evidence to support the allegation that the offences with which the respondent was charged were committed and the present appellant had any grievance at any stage before filing of the appeal.