RAEES UL HASAN Vs. SHUJAAT ALI

JUDGEMENT

(1.) This is first application under Section 438 Cr.P.C , 1973on behalf of the applicant. The applicant apprehends his arrest in connection with Criminal Case No.258/2017 registered as complaint case in the Court of Judicial Magistrate First Class-Sanwer, District-Indore for the offences punishable under Section 420, 467, 468, 471 and 420-B of IPC.

(2.) Facts relevant and necessary for disposal of this case in nutshell are to the effect that a private complaint has been filed on 19.01.2017 with the allegation that the agricultural land bearing survey No.296/2 admeasuring 2.526 hectare situated at village Solsindha, Tehsil-Sanwer District-Indore by virtue of sale deed dated 02.05.1977 is of the ownership and possession of the complainant. At no point of time, the aforesaid land has been transferred by him in favour of the accused/applicant. However, accused though related to the complainant played fraud with him in the year 1992 and manipulated for substitution of his name, for that of the complainant in the revenue record. The aforesaid fraud surfaced in the year 2011, no sooner the complainant came to no about substitution of the name of accused in the revenue record. Thereafter, such entries in the revenue record were questioned before the SDO. The SDO has allowed the appeal and the same was confirmed by the appellate Court. However, the Board of Revenue has set aside the orders of the authorities. The order was challenged by the complainant. A Division Bench of this Court in Writ Appeal No.08/2014 decided on 13.03.2014 has set aside the order of Board of Revenue with the observation that there is apparent fraud played upon the complainant in the matter of substitution of entries in the revenue record. In the back drop of the aforesaid fact, the instant private complaint has been filed against the present applicant and the same has been registered by the Court of JMFC-Sanwer, District-Indore.

(3.) Learned counsel for the applicant contends that in fact and in effect the dispute is of civil nature and, therefore, the complaint ought not to have been registered. That apart, even assuming the allegations of fraud are required to be tried, the applicant is prepared to face the trial, however, his arrest in no way can be justified for more than one reason, namely; (a) the allegations of fraud dates back to the year 1992. (b) acquisition of knowledge of such fraud dates back to the year 2011 and the private complainant has been filed in the year 2017. (c) though the writ appellant Court while disposing W.A. No.08/2014 (supra) has made certain observations that by itself are not conclusive and are required to be tried on complaint so filed by respondent/complainant to fasten the criminal liability; (d) applicant is bona fide permanent resident of Indore and has place in society and in the community having lived in the city for few decades, (e) that apart, as a matter of fact the applicant and the complainant belongs to the same family and due to personal differences, aforesaid dispute has errupted. (f) the applicant is prepared to abide by such terms and condition this Court deems fit and proper. (g) the applicant shall also cooperate and participate in the proceedings pending before the Court below.