JAVED AHMED KHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure, 1973 has been filed praying for quashing of the complaint case no.C-6679 of 2008 pending in the Court of the learned Chief Judicial Magistrate, District South 24 Parganas at Alipore. The facts of the case leading to the filing of this application are that one Salim Khan filed a Title Suit No.347 of 2004 against Aquil Ahmed Khan and others before the learned Civil Judge (Junior Division) at Alipore for declaration and injunction. He filed a petition under Order 39 Rules 1 & 2 of the Code of Civil Procedure for injunction. The learned Civil Judge (Junior Division) granted interim injunction against the defendants. Being aggrieved by that order of interim injunction, defendant / Javed Ahmed Khan preferred Misc. Appeal 335 of 2004 stating, inter alia, that the suit property was purchased by his father late Karim Bukh Khan along with others from Musst. Najibunnessa Bibi through whom the plaintiff claimed his right, title and interest over the same. In support of his contention the copy of the deed of sale was filed. On the strength of that deed the entire order was vacated. The said deed of sale bearing no.4835 of 1955 bears a reference of the Title Suit No.107 of 1927 filed in the Subordinate Judge, 24 Parganas at Alipore alleged by Musst. Farrok Begum, one of the wives of late Golam Jilani Khan for partition of the estate left her deceased husband and the said suit was compromised according to the recitation of the deed of sale. But on search it appeared that the Title Suit No.107 of 1927 arose between one Akshaya Paul versus Hari Prasad Paul. The alleged deed had no bearing with the Money Execution Case No.188 of 1945 of the Court of Munsif, Second Court at Alipore arising out of the Money Suit No.37 of 1945. Therefore, it is the contention of the plaintiff that the appellant produced one forged deed by practising fraud upon the Court and thus he had obtained the order.

(2.) Therefore, he committed an offence punishable under Section 193 of the I.P.C. Thereafter the appellate court, i.e., the learned Additional District & Sessions Judge, Fast Track Court, Seventh Court, Alipore, District 24 Parganas observed that she should proceed against the defendant/appellant under Section 340 of the Cr.P.C. Accordingly, he lodged one petition of complaint bearing no. C-6679 of 2008 under Section 193/463/465/471/420 of the I.P.C. and the learned Magistrate had taken congnizance of the offence. On that basis of that petition of complaint from the learned Additional District & Sessions Judge, Fast Track Court, Alipore, the learned Chief Judicial Magistrate, Alipore took cognizance of the offence. Being aggrieved by the said order, accused/Javed Ahmed Khan has preferred this application for quashing the petition of complaint no.C-6679 of 2008.

(3.) Mr. Shrivastave contended that in order to lodge a petition of complaint under Section 340 of the Cr. P.C., 1973, the learned Magistrate is required to observe that she was of the opinion that it was expedient in the interest of justice that an enquiry should be made into any offence referred to Clause (b) of Sub-Clause (1) of Section 195 of the Cr.P.C. which appears to have been committed in or in relation to a proceeding of that Court. He contended that the so-called deed of sale was executed in 1955 when the petitioner herein was only one year of age and so the question of committing forgery, etc. could not arise at all against the applicant. The learned Additional District & Sessions Judge nowhere recorded that it was expedient in the interest of justice to hold an enquiry in the order no.48 dated 11.07.2008 in Misc. Case No.7 of 2006 arising out of Misc. Appeal No.335 of 2004. Therefore, cognizance taken is bad and not sustainable. The proceeding if allowed to continue would be nothing but an abuse of the process. Mr. Shrivastava also contended that the so-called allegation did not take place during the pendency of the suit or appeal. The contents of the said sale deed might lay down one incorrect statement for which the applicant herein could not be held liable at all. In support of his contention, Mr. Shrivastava referred to the following decisions:-