Mr. Irshad Phaki Hussain Khatib vs The State Of Maharashtra And Ors

CNR No : HCBM010216342017

Sagar/Supriya WP-1946-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1946 OF 2017
1. Mr. Irshad Phaki Hussain Khatib
Age :- 53 Years, Occ :- Business,
Mohalla Pethe, Murud – Janjira,
Tal. :- Murud – Janjira,
District :- Raigad … Petitioner.
V/s.
1. State of Maharashtra.

2. Mr. Ateeq Saddik Khatib
Age :- 49 Years, Occ. :- Agriculture,
Murud – Janjira, Tal. :- Murud–Janjira,
District :- Raigad
3. Mr. A. M. Patil (Retired)
Age :- 65 Years, Occ :- Talathi,
Sai Arti Guest House, Share Road
Murud – Janjira, Tal. :- Murud–Janjira,
District:- Raigad.
4. Mr. V. Sathe (Retired)
Age :- 61 Years,
Occ :- Circle Officer, Nandgaon,
Nageshwar Murud-Janjira,
Tal.:- Murud-Janjira,
District :- Raigad. … Respondents
______________________
Mr. Mubin Solkar a/w Tahir Hussain, Anas Shaikh, Mehrosh Solkar, Tahera
Qureshi, Zahid Burud, Rabiya Bhamla, Yakub Shaikh i/by Aamir Sopariwala
for the Petitioner.
Mr. Prashant Jadhav, APP for the Respondent-State.
Mr. Kuldeep Patil a/w Mr. Sumitkumar Nimbalkar a/w Mr. Anay Joshi for the
Respondent No. 2.
______________________
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CORAM : RANJITSINHA RAJA BHONSALE, J.
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RESERVED ON : 6 AUGUST 2026.
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PRONOUNCED ON : 5 NOVEMBER 2026.
JUDGMENT :-
1) By the present petition filed under Articles 226 and 227 of the
Constitution of India, the Petitioner seeks to quash and set aside the Order
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dated 21 February 2015 passed by the JMFC, Murud, dismissing R.C.C. No.
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32 of 2013, and the Order dated 15 February 2017, passed by the Sessions
Court in Criminal Revision Application No. 41 of 2015, thereby dismissing the
Petitioner’s Criminal Revision Application. The Petitioner further seeks that
directions be issued to the JMFC, Murud to pass an Order under Section
156(3) of the CrPC.
2) Heard Mr. Mubin Solkar, learned Advocate for the Petitioner, Mr.
Prashant Jadhav, learned APP for the Respondent-State, and Mr. Kuldeep Patil
for Respondent No. 2.
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3) By Order dated 23 August 2024, this Court issued notice to the
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Respondents. By an Order dated 28 July 2025, the matter was referred for
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mediation. The mediation report dated 28 September 2025, has been placed
on record, which indicates that, though three meetings were held, the dispute
between the parties could not be amicably settled. In view thereof, with the
consent of the parties, the matter was heard finally at the admission stage.
4) The case as alleged by the Petitioner/original complainant in the
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criminal complaint is as under :-
4.1) The Petitioner is an original resident of village Murud. Due to his
work commitments at present he resides in Bandra, Mumbai. The lands in
question i.e. Survey Nos. 137/1, 51/2 and 116/1A situated at Village Telvade,
Taluka Murud, District Raigad are ancestral properties of the Petitioner.
4.2) In May 2013, when the Petitioner visited Murud, he took out the
7/12 extract of the property i.e. Survey No. 137/1. In the 7/12, the name of
the Petitioner’s brother, Siddik Phaki Hussain Khatib, (Siddik) was shown to
be deleted, and in place thereof, the names of the legal heirs of Siddik i.e.
Akila Siddik Khatib, Shams Rahim Kazi, Maruf Siddik Khatib, Ateek Siddik
Khatib (Respondent No. 2), Javad Siddik Khatib, Rubahat Mubin Javale and
Bilkis Asif Rajapkar were shown.
4.3) The Petitioner, then allegedly took out the 7/12 extracts and
other revenue documents in respect of all the ancestral properties. On perusal
of Mutation Entry No. 14721, it came to the knowledge of the Petitioner that,
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after Siddik expired on 15 April 1981, the names of only his legal heirs had
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been entered in the revenue records. This was done on 3 February 2000 vide
Mutation Entry No. 14721, which mutation entry was approved by the Circle
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Officer, Murud on 20 February 2000. It is the contention of the Petitioner
that, the Petitioner, as a legal heir, had a right in the properties of Mr. Phaki.
The Respondent No. 2 with an intention to deny the Petitioner his right, along
with Respondent Nos. 3 and 4, made a false and fabricated Mutation Entry
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No. 14721. Respondent No. 3 made an alteration in Government documents,
i.e. 7/12 extracts, etc. That, the names of the legal heirs of Phaki were deleted
and in place thereof, only the names of the legal heirs of Siddik were entered.
4.4) The Petitioner’s father, Phaki Hussain Phaki Ali Khatib (Phaki)
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expired on 22 May 1968 leaving behind his legal heirs i.e. his wife,
Mahamudabedi F. Khatib, his sons Siddik Hussain Khatib, Sajjad Hussain
Khatib, Irshad Hussain Khatib, and daughters Meherjabin Ashraf Amim,
Pharkhanda Hussain Khatib and Shagufta Hussain Khatib. The names of all
the legal heirs of Phaki were entered on all the ancestral properties vide
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Mutation Entry No. 11213 dated 11 October 1973.
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4.5) On 6 June 2013, the Petitioner took out the 7/12 extracts in
respect of Survey No. 137/1, which pertained to the year 1979-1980, where
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he noticed that there was certain alteration/cancellation made. On 21 August
2013, the Petitioner made an application to the Talathi seeking 7/12 extracts
till the year 2012-2013. It is alleged that, on making further enquiries, the
Petitioner realized that, on the 7/12 extract, the names of the legal heirs of
Siddik had been rewritten/overwritten. There was some alteration and
false/fabricated 7/12 extracts were prepared.
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4.6) In this background, on 27 August 2013, the Petitioner filed
private complaint being R.C.C No. 32 of 2013 alleging that the Respondent
Nos. 2, 3 and 4, with a common intention committed various criminal offences
under Sections 420, 406, 465, 467, 468, 471 read with Section 34 of the IPC.
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Directions were sought inter alia, for registration of an FIR. The JMFC,
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Murud, vide Order dated 29 October 2013, directed an enquiry under
Section 202 of the Cr.P.C.
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5) An enquiry was conducted under Section 202 of the CrPC. On 2
January 2014, a report was filed stating that, no offence had been made out.
The JMFC, Murud, after considering the said report, dismissed the complaint
under Section 203 of the Cr.P.C.
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6) The Petitioner, on 2 May 2014 filed a Criminal Revision
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Application No. 42 of 2014, challenging the Order dated 23 April 2014. The
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Sessions Judge, by an Order dated 1 January 2015, was pleased to allow the
revision application and remand the matter with directions to the Magistrate
to reconsider the complaint and the police report filed under Section 202 of
the Cr.P.C.
7) On remand, the learned JMFC, after hearing the parties by an
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Order dated 21 February 2015 dismissed the complaint under Section 203 of
the Cr.P.C. The Petitioner then filed Revision Application No. 41 of 2015,
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which was dismissed by Order dated 15 February 2017. By this present
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petition, the Petitioner seeks to challenge the orders dated 21 February 2015
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and 15 February 2017 dismissing the complaint.
8) Mr. Mubin Solkar, learned Advocate appearing for the Petitioner
submitted that :-
8.1) The complaint clearly makes out a case against the accused. The
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material collected during the course of enquiry prima facie discloses the
commission of serious cognizable offences of forgery and cheating.
8.2) The property in question is ancestral property. That, the Petitioner
has right in the said property. The Petitioner’s rights have been denied by the
accused by creating false and fabricated documents. The record would
indicate that, the revenue records have been deliberately altered/destroyed.
There is overwriting in the revenue records and entries have been altered
without following the procedure. The property rights of the Petitioner have
been adversely affected by the illegal and dishonest acts of the accused.
8.3) The name of Siddik was entered as the “head of family” in the
revenue records. Respondent No. 2, with an intention to defraud and cheat
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the Petitioner, submitted an application dated 3 February 2000 to the Talathi,
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Murud, wherein it was falsely stated that, after the death of Siddik on 15
April 1981, Respondent No. 2 and his siblings were alone entitled and the
only legal heirs, when in fact the Petitioner and his siblings were also entitled
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and the lawful legal heirs. By the said application dated 3 February 2000,
Respondent No. 2 requested that only their names be added to the revenue
record. Based on the said application, the Talathi Respondent No. 3
fraudulently prepared a Panchnama stating that Respondent No. 2 and his
siblings were the only legal heirs of deceased Siddik.
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8.4) A forged and fabricated Mutation Entry No. 14721 dated 20
March 2000 was recorded, whereby the name of the Petitioner and his siblings
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were deleted and the names of Respondent No. 2 and his siblings were added
to the revenue record. This entry would prima facie make out a case against
the Respondents.
8.5) Only when Respondent No. 2 came to know that, the Petitioner
had inspected the revenue records and applied for certified copies,
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Respondent No. 2 filed an application dated 5 June 2013 to rectify the
revenue record and re-enter the names of the Petitioner and the other
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siblings/legal heirs. The application dated 5 June 2013 clearly demonstrates
the dishonest and mala fide intentions of Respondent No. 2 to cheat the
Petitioner and his family.
8.6) The fact that, the procedure prescribed under the Maharashtra
Land Revenue Code, 1966 (for short “MLRC”) was not followed is indicative
of the dishonest and mala fide intentions of the accused. The dismissal of the
Petitioner’s complaint is on erroneous and irrelevant grounds.
8.7) The learned Magistrate has totally misdirected himself by holding
that, since Respondent No. 2 had filed an application to correct the mutation
entry, there was no mens rea attributed to Respondent No. 2. That, this
finding/observation is untenable. In fact, the said finding clearly makes out a
prima facie case against the accused.
8.8) The Orders dismissing the complaint have mixed up the issue i.e.
failure to follow the procedure under the MLRC with dishonest and fraudulent
acts of forgery and cheating of the accused. The criminal offences of cheating
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and forgery cannot be termed as or categorized as “irregularities in following
procedures.”
8.9) The false and dishonest defence taken up by the Respondents
clearly indicates that, a prima facie case of cheating and forgery is made out
against the Respondents. There are various other criminal proceedings and
civil proceedings between the parties in respect of the said properties.
9) Mr. Kuldeep Patil, learned Advocate appearing for Respondent
No. 2 submitted that :-
9.1) The Order dismissing the complaint and the revision application
are in accordance with law. The allegations made in the complaint are
completely unfounded and untenable. The names of the legal heirs of Siddik
were entered inadvertently and due to a genuine mistake. Once Respondent
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No. 2 found out and realized the mistake, he immediately, on 5 June 2013,
filed an application to enter the names of all the legal heirs of Phaki.
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9.2) Based on the said application dated 5 June 2013, the names of
all the legal heirs of Phaki including the Petitioner were added vide Mutation
Entry No. 15352. It was only after the application was made, approved and
the mistake rectified that the Petitioner filed the present criminal complaint
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bearing R.C.C No. 32 of 2013. The criminal complaint was filed on 27
August 2013.
9.3) The criminal complaint has been dismissed after an enquiry was
conducted under Section 202 of the Cr.P.C. Two police reports have been filed,
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the first being on 2 January 2014 and the second police report on 29
January 2014. Both the enquiry reports conclude that, there is no evidence
found against the Respondents. The matter was remanded back. By an Order
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dated 21 February 2015, after considering all the facts, it is concluded that,
there was no fraudulent intention or dishonest intention on the part of the
Respondents and the complaint was dismissed.
9.4) The Orders are proper and passed after appreciation of the facts
and evidence. Only the pencil entry has been corrected. No loss has been
caused to the Petitioner. There may be an irregularity in the procedural
aspects, but there is no illegality, and all the documents and facts have been
considered.
10) Mr. Prashant Jadhav, APP for the Respondent-State, adopted the
arguments advanced by Mr. Kuldeep Patil, learned advocate for the
Respondent No.2.
11) Perused the entire record. It is the case of the Petitioner that, after
his father Mr. Phaki expired in the year 1968, mutation entry No. 11213 was
effected and the names of all the legal heirs of Mr. Phaki including the
Petitioner and other brothers and sisters were recorded. The mutation entry
No. 11213 is not challenged by the Petitioner. After the death of Siddik, in the
year 1981 only the names of his legal heirs including Respondent No.2 came
to be recorded in respect of land bearing Survey No. 137/1 vide Mutation
Entry No. 14721. It is the contention of the Petitioner that, in fact, names of
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all legal heirs as per Mutation Entry No. 11213 ought to have been recorded
in respect of land bearing Survey No. 137/1 and other lands. The exclusion of
the Petitioner and other legal heirs was with an intention to deprive them of
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their rights, by creating a false record. On 6 June 2013, when the Petitioner
obtained 7/12 extracts in respect of Survey No. 137/1, he noticed the
overwriting on the 7/12 extract. That, the Petitioner has all along being
staying in Mumbai on account of his occupation and therefore had implicit
trust in Ateeq/ Respondent No.2. That, Respondent No.2 abused his trust, and
got false entries prepared with the help of Respondent Nos. 3 and 4, the
Talathi and the Circle Officer. Therefore, the complaint under Section 420,
406, 465, 467, 468, 471 read with 34 of the IPC was filed before the Court of
the Judicial Magistrate First Class, Murud.
12) On the other hand, it is the case of Respondent No.2 that, merely
because some record is not available it cannot be construed that, a Mutation
Entry is false or that there is some criminal act/offence committed. The name
of Siddik has not been recorded for the first time in the year 2000. The record
indicates that, the name of Siddik was recorded in the year 1968-69 in respect
of land bearing no. 137/1. That, there is no forgery in the extract of 8(A)
because earlier Murud was one revenue division and only in the year 1988-89
Murud revenue division was split into two divisions i.e. Telvade and Murud
oxSjs] brj
and whatever scoring was done was only with respect to the words “ ”
That, the scoring does not confer any right nor does it deprive any person of
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his right or extinguish any right in the property. That, once Respondent No.2
realized his mistake, the same has been corrected by Respondent No.2 on his
own accord even before the complaint was filed. That, while giving effect to
the mutation entry the words “ ,d= dqVqac iq<kjh ,-dq-iq- ” seem to have been
inadvertently left out/remained to be recorded on the 7/12 extract. That, the
entries came to be made based on a misunderstanding or at the highest be
termed as an act of negligence.
13) On record, there is a report, in respect of the enquiry conducted
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under Section 202 of the CrPC. The first report is dated 2 January 2014.
Perusal of the report would indicate that, after the death of the father i.e. Mr.
Phaki, the name of the elder brother of the complainant/Petitioner i.e. Siddik
was entered as head of the family “ ,d= dqVqac izeq[k ” in respect of Survey No.
137/1, 51/2 and 116/1A vide Mutation Entry No. 11213. Record indicates
,d= dqVqac izeq[k
that, though the mutation entry has the reference of “ ”, the 7/12
,d= dqVqac izeq[k
extracts did not have the reference of “ ”. After Siddik passed
away in the year 1981, instead of recording the names of the legal heirs of Mr.
Phaki, the then Talathi and concerned Revenue Officers, apparently without
confirming the contents of the Mutation Entry No. 11213 recorded the names
of the legal heirs of Siddik. At the first instance, pencil entries were made on
which by overwriting with ink the names of the legal heir’s of Siddik have
been recorded. Based on the said report, after concluding that, the evidence
was not sufficient to proceed further against the Respondents, the learned
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Magistrate by order dated 23 April, 2014 was pleased to dismiss the
complaint. A finding was recorded that, the complaint is baseless and no
prima facie case is made out.
14) The said Order was challenged by the Petitioner by filing a
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Revision Application bearing No. 42 of 2014. By order dated 1 January 2015,
passed in Criminal Revision Application No. 42 of 2014, the learned Ad-hoc
District Judge-1 and Additional Sessions Judge, Raigad at Alibag, was pleased
to allow the Revision Application, remand the matter back to the Judicial
Magistrate, First Class, Murud with directions to reconsider the complaint,
reports under 202 of the CrPC and all the documents filed by both the parties
and pass a proper reasoned order.
15) On remand, the JMFC, Murud reconsidered the complaint and all
the documents including the report under Section 202 of Cr.P.C. The
Magistrate observed that, though the names of all legal heirs were recorded
vide Mutation Entry No. 11213 in the revenue records, the endorsement of
“head of family” was not made in the 7/12 extract pertaining to Survey No.
137/1. The Order also records that, the present complaint is filed in the year
2013, whereas the Mutation Entry was of the year 2000. It is observed that,
the Petitioner has not challenged the said mutation entry under the
Maharashtra Land Revenue Code nor have any steps been taken in that
regard. It is further observed that, the allegations against Respondent Nos. 2
and 3 can be said to be an irregularity in adopting the requisite procedure as
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contemplated under the Maharashtra Land Revenue Code. The Order also
records the conduct of Respondent No. 2, in as much as, Respondent No. 2
had himself filed an application with the concerned authority and sought
correction/rectification of the revenue record by adding the names of the
Petitioner and other legal representatives as per the Mutation Entry No.
11213. Pursuant to the said application, Mutation Entry No. 15352, was
recorded wherein, the required corrections were made and the names of all
legal heirs of Phaki have been recorded in the revenue records in respect of all
the properties. The learned JMFC in paragraph 10 specifically observed that,
considering the factual position there was no intention or mens rea that could
be found against Respondent No.2. After, considering all the aforesaid facts, it
has been held that, the offences cannot be said to have been made out. By the
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Order dated 21 February 2015, the complaint was dismissed under Section
203 of the Cr.P.C.
16) The Order was challenged by filing Criminal Revision Application
No. 41 of 2015 before the Sessions Judge, Raigad, Alibag. The Sessions Court
after considering the facts has specifically observed that, the mistake which
appears to have been committed by the concerned Revenue Officer is that, in
the 7/12 extract in front of the name of Siddik the words “ ,d= dqVqac iq<kjh ”/
“head of family” were not mentioned. The name of Siddik was encircled and
the names of his legal heirs were recorded. While referring to the question as
to whether such overwriting can be made, it is recorded that, though the
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Talathi and Circle Inspector did not follow proper procedure, merely because
the proper procedure was not followed it does not mean that an offence under
the Indian Penal Code has been committed. The learned Sessions Judge has
observed that, nothing has been brought on record to show that, the said
correction or overwriting which has been made, is done with an intention to
cause harm to the Petitioner or that it was done with a dishonest intention.
The Order specifically records that, the Petitioner has not challenged the
Mutation Entry No.14721 before the concerned revenue authority nor had
taken any steps from the year 2000 to 2013. This is an important factor which
is required to be taken into consideration. The Order observes that, mere
certification of mutation entry does not amount to entrustment of property
and or misappropriation of any property, nor is any offence under section 420
of IPC made out. The Order further records that, there is no dishonest
inducement which is offered so as to ensure that, the person is deceived to
deliver any property, etc. Therefore, the offence of Section 420 cannot be
made out. Considering the peculiar facts of the case, it was concluded that,
the offence of forgery also cannot be made out. The Sessions Court in the
Order further observed that, Respondent No.2 on realizing the mistake filed
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an application before the Tehsildar on 5 June 2013 for correction of the
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mutation entry. The complaint was filed on 27 August 2013 implying that,
before the complaint could be filed Respondent No. 2 had already made an
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application on 5 June 2013. Further, it has been observed that, the Tehsildar
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passed an Order on 14 August 2014 even before the complaint was filed on
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27 August 2013. After considering these facts and making aforesaid
observations Criminal Revision Application was dismissed.
17) There is on record a mutation entry bearing No. 11213 which
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records the death of Shri. Phaki Hussain Phaki Ali Khatib on 22 May 1968,
and records that, the name of all legal heirs of Phaki were entered into the
revenue record. I have also noted that, by the said Mutation Entry the name of
,d= dqVqac iq<kjh
Siddik was entered as “ ” (head of the family). The said entry also
makes a reference to Mutation Entry No. 10901. In fact, Mutation Entry No.
11213 is based on Mutation Entry No. 10901. Perusal of the record would
,d= dqVqac
indicate that, the Mutation Entry specifically has the reference to the “
iq<kjh ,d= dqVqac iq<kjh
” , but in 7/12 extract there is no reference to the word “ ”.
The entry also has a reference that the name of Siddik was entered as “ ,d=
dqVqac izeq[k ” which sentence appears to be have been cancelled from the records.
This is an important aspect which is required to be considered. Thus, there is
some variance in the mutation entry and the recording of the contents thereof
on the 7/12 extract. The fact that a possible confusion was created cannot be
ruled out. It appears that a possible inadvertent error has been committed
while giving effect to the Mutation Entry 11213 in the 7/12 extract. Further, it
is pertinent to note that mutation entry No. 14721 has not been challenged
before any Court or in legal proceedings.
18) I have noted that, there is a reference made to the procedure of
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work (Karyapaddhati) which are to be followed by the Talathi and Mandal
Adhikari. The procedure which is required to be followed is that, when a
mistake has been corrected the same should be corrected in red ink and the
Mandal Nirikshak (Circle Inspector) should countersign the same. Further,
when a correction is to be made in respect of an entry made in the revenue
records the same should be cancelled by drawing the line across the said
entry. The object of the procedure is to ensure that, the incorrect entry is
readable for future references.
19) The entire complaint proceeds on the premise that, as a criminal
offence is committed as (i) there is an overwriting on the 7/12 extract and
(ii) by Mutation Entry 14721 the names of the legal heirs of Siddik have been
entered in exclusion of the other legal heirs including the Petitioner. The
Petitioner seeks to draw an inference of criminality or a criminal act on the
basis that, the cancellation of the entry is not done by drawing a single pencil
line across the entry. The names are therefore not readable. The procedure for
corrections of an entry as prescribed is not followed and therefore the criminal
offences are made out. The record indicates that, Mutation Entry No. 11213
is based on Mutation Entry No. 10901. Both the mutation entries have got on
record, the legal heirs of Phaki. Both the Mutation Entries No. 11213 and
10901 are not challenged nor disputed. It appears that, it is only in the 7/12
,d= dqVqac iq<kjh
extract that the words “ ” were not reflected. The enquiry
conducted under Section 202 of CrPC considers this aspect and does not
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attribute any motive or act as would attract any of the offences as alleged
under the provisions of the IPC as alleged by the Petitioner. Further, the record
prima facie indicates that, on realizing the mistake made, Respondent No.2
i.e. the son of Siddik immediately corrected the same by filing an application
to the concerned Revenue Authorities. On the application being filed,
Mutation Entry No. 15352 was effected thereby correcting the mistake and
bringing on record the names of all the legal heirs of Phaki including the
Petitioner.
20) I have noted that, the application seeking correction was made
even before the complaint was filed. It is the specific case of the Petitioner
that, he got knowledge of the entry in the 7/12 extract pertaining to Survey
th th
No. 137/1 on 6 June 2013. The application for correction was made on 5
June 2013, a one day prior to the Petitioner acquiring knowledge. Prima facie
it appears that, the application was made even before the Petitioner had
knowledge of the said alleged offence/misconduct. The conduct of the
Respondent No.2, prima facie negates the required intention or mens rea
required to invoke a criminal offence. Further when one considers the revenue
records especially Mutation Entry No. 11213 it is clear that the name of Siddik
was entered in a “ ,d= dqVqac izeq[k ”. It appears that, at the time of giving effect to
the said Mutation Entry in the 7/12 record an error/mistake has been
committed. On the 7/12 extract only the names of Siddik was recorded
without the words “ ,d= dqVqac izeq[k ”. The enquiry report has also dealt with this
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aspect and concluded that there was no intention or mens rea which can be
attributed to the accused. Prima facie it appears that there is no material on
record to indicate criminal intent or any mens rea on the part of the accused.
In this view of the matter, it cannot be said that any offence under Sections
420, 406, 465, 467, 468, 471 read with Section 34 of the IPC have been made
out. I have also noted that, the Petitioner had not taken any steps to challenge
this present entry i.e.14721 under the Maharashtra Land Revenue Code. It is
not that, the Petitioner has never challenged any of the entries. The record
indicates that, the Petitioner has filed an RTS Appeal No. 57 of 2021
challenging the entry in regard of rights bearing no. 11479. The said RTS
th
Appeal was allowed on 18 March 2024. During the arguments, on enquiries
being made with the Advocate appearing for the Petitioner as to the status of
the said RTS proceedings, the Court was informed that, the said Order on
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being challenged was set aside by an Order dated 24 April 2025. Further, the
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Petitioner’s Revision Application in that regard was dismissed on 23 February
2026. Admittedly the Petitioner has not taken any action in respect of the
Mutation Entry No. 14721 before the revenue authorities under the
Maharashtra Land Revenue Code.
21) In my considered opinion the Court of JMFC and the Sessions
Court have considered all the factual aspects of the matter including the
material on record as also the reports of the enquiry.
22) The procedure adopted appears to be an irregular procedure in
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making the entry. Having said that, there is no material to infer that the same
was done intentionally or with any particular intent. Prima facie it appears
that there was no deliberate intent to deceive or defraud anybody including
the Petitioner. The revenue/mutation entries when compared, refer the name
of all the legal heirs. Prima facie, the inadvertent or mistaken reflection of the
contents of the mutation entry in the 7/12 extract appears to be an error
which has occurred due to an inadvertent mistake or at the highest an act of
negligence. It appears that, no cross verification has been done nor the
contents of the Mutation Entry and the 7/12 extract checked and reverified. In
my considered view, the mistake, act of negligence or misconduct would travel
into the realm of a criminal offence only when there is material to prima facie
indicate criminal intent or mens rea that the act was an intentional and
deliberate act done with dishonest and mala fide intention. An error or
irregularity, being administrative in nature and an administrative issue is to be
dealt with accordingly. In my view, there is no material available to infer a
criminal intent or criminality on the part of the accused.
23) A useful reference may be made to the judgment of the Hon’ble
Supreme Court in the case of Harishchandra Prasad Mani and Ors. Vs. State of
Jharkhand & Anr. reported in (2007) 15 SCC 494, where the Hon’ble Supreme
Court has held that cognizance cannot be taken unless there is atleast
some material indicating the guilt of the accused. The Hon’ble Supreme
Court has observed that though adequacy of evidence is not to be seen
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by the Court, but atleast there has to be some material implicating the accused
and that cognizance cannot be taken merely on the basis of suspicion.
Paragraph 13 of the Judgment reads as under :
“13. In the present case, there is not even an iota of material
indicating the guilt of the accused persons. It is true that at the
stage of taking cognizance adequacy of evidence will not be seen
by the court, but there has to be at least some material implicating
the accused, and cognizance cannot be taken merely on the basis
of suspicion as it appears to have been done in the present case.
To take a contrary view would only lead to harassment of people.”
24) Considering the peculiar facts of this case, mere suspicion cannot
be the basis to institute the criminal proceedings and especially when the
suspicion is unfounded or based on unjust facts or arising/ based on surmises
and conjecture.
25) In view thereof, Petition is dismissed.
(RANJITSINHA RAJA BHONSALE, J.)
SAGAR
SANTOSH
MAGAR
Digitally signed by
SAGAR SANTOSH
MAGAR
Date: 2026.11.05
18:16:50 +0530
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