SURAIYA NAIYER Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. This application has been filed by the applicants Suraiya Naiyer, Mohd. Majid, Fatima Parveen, Suleman, Abdul Latif, Shakila Begun and Mahmood Hasan and Mohd. Mashim Ansari with the prayer that the proceedings of Criminal Case No. 1811 of 2007, State of U. P. v. Suraiya Naiyer and Ors. , arising of out charge-sheet No. 89 of 2007 dated 23-3- 2007 in Case Crime No. 324 of 2006 under Sections 420, 467, 468, 471 and 120-B I. P. C. P. S. Sadar Bazar District Saharanpur may be quashed.

(2.) THE facts of the case in brief are that the F. I. R. of this case has been lodged by O. P. No. 2 Smt. Kunti Devi in Case Crime No. 324 of 2006, under Sections 420, 467, 467, 468, 471 and 120-B I. P. C. on 21-7- 2007 at P. S. Sadar Bazar District Saharanpur, the matter was investigated by the I. O. and after recording the statement of the witnesses under Section 161 Cr. P. C. and after collecting some other material submitted charge-sheet dated 23-2- 2007 against the applicants under Sections 420, 467, 468, 471 and 120-B I. P. C. in the Court of learned Magistrate concerned on the basis of the charge-sheet submitted by the I. O. THE learned C. J. M. Saharanpur has taken cognizance and summoned the applicant to face the trial on 9-3-2007. THE allegation against the applicant is that the O. P. No. 2, Smt. Kunti Devi, had entered into an agreement to sale the land of Mohd. Junoon by a registered agreement on 17-12-1996, the area of the land was 2. 457 hectare, at the time of the agreement she had paid Rs. 10,000/- to the vendor. It is alleged that Mohd. Junoon executed a power of attorney in favour of Sabbir Ahmad and Vinod Chauhan, who executed a sale-deed on 21-2-1997 in favour of O. P. No. 2 Smt. Kunti Devi after receiving the payment of remaining settled amount and she came into possession over the aforesaid land. It is alleged that applicant No. 1 Smt. Suraiya Naiyer in order to cause wrongful loss to O. P. No. 2 executed a sale- deed out of the aforesaid land purchased by O. P. No. 2, measuring 2114 Sq. meter on 28-6-2006 in favour of applicant No. 3 Smt. Fatima Parveen. Applicant No. 1 also executed another sale seed on the same day in favour of applicant No. 6 Smt. Shakila Begum. Applicant Nos. 2, 4, 5, 7 and 8 were witness of the aforesaid sale-deed, on the basis of the forged sale-deed, the accused persons were trying to take over possession of the land in dispute.

(3.) IT is contended by learned Counsel for the applicants that on the basis of the above mentioned F. I. R. the matter was investigated by the I. O. who came to the conclusion that it was a case of civil nature and civil proceedings were pending between the parties and submitted the final report but under the influence of the O. P. No. 2 the investigation was entrusted to some other I. O. who without concluding credible evidence submitted the charge-sheet No. 89 of 2007, on the basis of that charge-sheet the learned C. J. M. Saharanpur has taken the cognizance on 9-3-2007. The matter concluded by the I. O. during investigation there is not constitution any offence against the applicants. The applicant No. 1 is daughter of Mohd. Junnon, who died in the year 1988 leaving behind the applicant No. 1 and her sister Naseem Naiyer, as the legal heirs. Mohd. Junnon was having no son, he was an old man. Taking the advantage of his old age the son of the O. P. No. 2 namely Subhash Jain, the known land Mafiya prepared a forged agreement to sale in collusion with Mohd. Islam allegedly executed Mohd. Junnon on 17-12- 2006. Thereafter on the basis of the forged power of attorney got the sale-deed executed in favour of the O. P. No. 2, when applicant No. 1 came to know about this forgery, she lodged the F. I. R. in case crime No. 18 of 2005 under Sections 420, 467, 468 471, 120-B IPC at P. S. Mandi, Saharanpur. On 15-1-2005 the applicant No. 1 and his sister Smt. Naseem Naiyer also moved an application under Section 201 of Land Revenue Act for the restoration of suit No. 362 of 1988 because the property in question was mutated in the name of O. P. No. 2 on 10-8-1998 but despite the service to notice the O. P. No. 2 did not appear before the Court of Tahsildar, Saharanpur, ultimately vide order dated 8-2-2005 the order of mutation dated 10-8-1998 was cancelled and again the name of Junnon entered into revenue record, the order dated 8-2-2005 was challenged before the Board of Revenue by the O. P. No. 2, the same was remitted to the Court of learned Tahsildar to pass a fresh order after affording the opportunity of being heard to O. P. No. 2. The O. P. No. 2 did not appear in the Court concerned whereas 18 dates were fixed, ultimately the learned Tahsildar passed the order dated 6-8-2005. Again passing the same order as passed on 8-2-2005 the O. P. No. 2 challenged the order dated 6-8- 2005 before learned Addl. District Magistrate, Saharanpur in Appeal No. 154 of 2004-05, the same was also dismissed on 5-4-2006 which is pending between the parties. The applicant No. 1 and her sister have also filed another suit No. 717 of 2006 against O. P. No. 2 and others for cancellation of power of attorney and sale-deed dated 27-2-1997 which is pending in the Court of learned Civil Judge (Sr. Div.), Saharanpur. The O. P. No. 2 also filed a original Suit No. 649 of 2006 against the petitioner No. 1 and others. IT is contended that the name of the Junnon has been again entered into the revenue record and the proceedings of the Court of civil and revenue are pending between the parties. The applicant has not committed any offence but due to some ulterior motive the F. I. R. has been lodged and without doing the specific investigation, the charge- sheet has been submitted. IT is further contended that notice on the basis of the allegation made against the applicant offence of the cheating or the forgery is not made out, there is no allegation that O. P. No. 2 was either induced with a dishonest intention to part with her property, therefore, the allegation are not constituting the offence under Section 302 IPC for the offence of the forgery.