# Kazim Mehndi v. Zubedia Begum & Anr. Opp. Parties

- **Citation:** (2023) 7 ILRA 404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-18
- **Case number:** Application u/s 482 No. 1968 of 2018
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kazim-mehndi-v-zubedia-begum-anr-opp-parties-50326
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202 & 482 -
UP Zamindari Abolition and Land Reforms
Act, 1950 - Sections 210, 171 & 172: -
Application U/s 482 - challenging the criminal
proceeding initiated against the applicant -
complaint - allegation of submission of forged
and fabricated death certificate - during
proceeding of a dispute which is purely civil in
nature and several set of litigations are pending
between the parties - court finds that, - prima
facie there seems to be civil dispute in between
the parties but so far as getting prepared the
death certificate is concern, it was prepared
wilfully and dishonestly, therefor the same was
cancelled - held, - it is trite law that the
testimony of the witnesses cannot be examined
by this court and deciding the fate of the trial
while giving finding that those testimonies are
baseless is not proper at this stage and further
the criminal and civil proceedings can go on as
there are different consequences of the same -
hence, court finds no merit in this case -
accordingly, application is hereby dismissed.
(Para - 21, 22, 23, 24)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

## Text

404 INDIAN LAW REPORTS ALLAHABAD SERIES
04.10.2018 passed by the Civil Judge
(S.D.)/Additional
Chief
Judicial
Magistrate, Shamli as well as entire
proceeding of Criminal Case No.8511 of
2022 (Sate vs. Sajid and others), arising out
of charge sheet No.406 of 2018 dated
03.09.2018 in Case Crime No.0432 of
2018, u/s 3 of the Prevention of Damage to
Public Property Act, 1984, Police Station
Kairana,
District
Shamli
are
hereby
QUASHED.

(24). The instant applications u/s 482
Cr.P.C. stand allowed. The matter is
remanded back for fresh consideration by
the court concerned, after strictly adhering
to the observations of this order, within
next FOUR MONTHS.
----------
(2023) 7 ILRA 404
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.07.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application u/s 482 No. 1968 of 2018

Kazim Mehndi ...Applicant
Versus
Zubedia Begum & Anr. ...Opp. Parties

Counsel for the Applicant:
Vijay Kumar Pandey

Counsel for the Opp. Parties:
G.A., Anil Kumar Sharma, Arvind Kumar, Bajhul
Siddiqui, Mohammad Abbas Zaidi, Shivendra
Pratap Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202 & 482 -
UP Zamindari Abolition and Land Reforms
Act, 1950 - Sections 210, 171 & 172: -
Application U/s 482 - challenging the criminal
proceeding initiated against the applicant -
complaint - allegation of submission of forged
and fabricated death certificate - during
proceeding of a dispute which is purely civil in
nature and several set of litigations are pending
between the parties - court finds that, - prima
facie there seems to be civil dispute in between
the parties but so far as getting prepared the
death certificate is concern, it was prepared
wilfully and dishonestly, therefor the same was
cancelled - held, - it is trite law that the
testimony of the witnesses cannot be examined
by this court and deciding the fate of the trial
while giving finding that those testimonies are
baseless is not proper at this stage and further
the criminal and civil proceedings can go on as
there are different consequences of the same -
hence, court finds no merit in this case -
accordingly, application is hereby dismissed.
(Para - 21, 22, 23, 24)

Application u/s 482 dismissed. (E-11)

List of Cases cited:

1. Devendra & ors.Vs St. of UP & anr.(2009 vol.
7 SCC 495),

2. Inder Mohand Goswami & anr.Vs St. of
Uttarakhand & ors.(2007 col. 12 SCC 1),

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Vijay Kumar Pandey,
learned
counsel
for
the
applicant-
petitioner, Sri Anil Kumar Sharma and
Bajhul Quamar Siddiqui for opposite
parties, Sri Nirmal Kumar Pandey, learned
A.G.A. for the State and perused the
material placed on record.

2. Instant application has been filed
with prayer to quash the order dated
06.03.2018 passed by Judicial Magistrate,
Court No.2, Sitapur in a Criminal Case No.
6395 of 2017, Smt. Zubeda Begum, versus
Kazim Mehndi, and further prayed to stay
the operation and implementation of
impugned order dated 06.03.2018 passed
by Judicial Magistrate, Court No.2, Sitapur
7 All. Kazim Mehndi Vs. Zubedia Begum & Anr.
405
in a Criminal Case No. 6395 of 2017, Smt.
Zubeda Begum, versus Kazim Mehndi.

3. Learned counsel appearing for the
applicant submits that the factual matrix of
the case is that on 15.04.1990, on the basis
of an application of the petitioner moved
before
Nagar
Palika
Parishad,
Mehmudabad, Sitapur, an inquiry was
made with respect to the death certificate
which
was
issued
to
the
petitioner
regarding the death of Taqi Hussan wherein
the date of death of Taqi Hussain was
shown 02.04.1993. He further added that it
is an admitted fact that daughter of Raja
Hussain is admittedly died on 06.04.2007
and
the
Tehsildar
under
certain
misconception and while misreading the
provisions of section 171 and 172 of
U.P.Z.A & L.R. Act has presumed as Taqi
Hussain as successor who was not alive on
the date of death of Kaniz Raja thereafter,
the applicant-petitioner filed a case under
section 210 of U.P.Z.A & L.R. Act, against
the order of Tehsildar dated 27.01.2015
thereby, agitating the issue that the
succession which was open on the date of
death of Kaniz Raza i.e. on 07.04.2007, on
that point of time Taqi Hussain was not
alive. Therefore, the present applicant
being sister's son admittedly was alive on
the death of Kaniz Hassan and thus, being
the nearest heir, learned appellate court
allowed the appeal and set aside the order
passed by the Tehsildar dated 27.01.2015
and against the same, a revision was filed
which was also dismissed on 07.09.2015 by
the revisional court and thereafter, on
26.05.2015, a claim of Mutation has also
been raised. He added that in between the
death certificate which was issued in
collusion with the ex- chairman of Nagar
Palika Parishad, was got cancelled and
against the same the present applicant has
instituted the writ petition before this Court
which is pending consideration. He added
that since the present applicant are the
nearest heirs of the deceased Kaniz Raja
and therefore, there was no occasion to
submit any forged or fabricated death
certificate in his favour. He further added
that in fact it is a dispute which is purely of
civil in nature and several set of litigations
are pending between the parties and this
can only be decided after the issue is finally
decided which is pending consideration at
different stages.

4. While further adverting the fact
that the order dated 06.03.2018 has been
passed without considering the facts in its
right perspective as the learned trial court
has not considered the fact that the present
applicant is the nearer heir of the deceased
and thus, after the death of Kaniz Raja, he
applied for Mutation.

5. He added that the trial court has
also ignored the fact that there was no
occasion for the present applicant to submit
any kind of forged or fabricated death
certificate as he by operation of law, is the
legal heir of the deceased, Adding his
argument, he submits that impugned order
dated 06.03.2018 has been passed without
thoroughly giving the reasons.

6. In support of his submission, he has
placed reliance on a judgment reported in
Devendra and Others versus State of
U.P. and another (2009) 7 SCC page 495
and has referred paragraph 24.

7. Paragraph 24 is quoted herein
under:-

There is no dispute with regard to the
aforementioned
propositions
of
law.
However, it is now well settled that the
High Court ordinarily would exercise its
406 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction under Section 482 of the Code
of Criminal Procedure if the allegations
made in the first information report, even if
given face value and taken to be correct in
their entirety, do not make out any offence.
When the allegations made in the first
information
report
or
the
evidences
collected 'during investigation do not
satisfy the ingredients of an offence, the
superior courts would not encourage
harassment of a person in a criminal court
for nothing.

8. Referring the aforesaid, he submits
that the Apex Court in so many word has
held that the superior courts would not
encourage harassment of a person in a
criminal court if there is no substance.

9. He has further placed reliance on a
judgment
reported
in
Inder
Mohan
Goswami and another versus State of
Uttaranchal and others (2007) 12 SCC 1
and has referred paragraph 42.

10. Paragraph 42 is quoted herein
under:-

On a reading of the aforesaid section,
it is manifest that in the definition there are
two separate classes of acts which the
person deceived may be induced to do. In
the first class of acts he may be induced
fraudulently or dishonestly to deliver
property to any person. The second class of
acts is the doing or omitting to do anything
which the person deceived would not do or
omit to do if he were not so deceived. In the
first class of cases, the inducing must be
fraudulent or dishonest. In the second class
of acts, the inducing must be intentional but
need not be fraudulent or dishonest.
Therefore, it is the intention which is the
gist of the offence. To hold a person guilty
of cheating it is necessary to show that he
had a 7 fraudulent or dishonest intention at
the time of making the promise. From his
mere failure to subsequently keep a
promise, one cannot presume that he all
along had a culpable intention to break the
promise from the beginning.

11. Referring the aforesaid, he
submits that the intention is a key point to
map out the criminal and civil act of a
person. He added that the Apex Court has
also held that fraud and cheating can said to
be committed once, such a person had
fraudulent or dishonest intention. He
submits that there was no question with
respect to any gain by the applicant and
thus, it could not be said that there was any
criminal intent of the applicant for
committing the alleged offence.

12. Concluding his argument, he
submits that since the matter is sub-judice
in civil suit and the learned trial court
without considering the aforesaid facts and
circumstances that the case is purely of
civil in nature and has passed the order
dated 06.03.2018 therefore, the same may
be set aside.

13. Leamed counsel for the opposite
parties
has
vehemently
opposed
the
submission aforesaid and submits that the
present applicant moved an application for
mutation whereby, the death certificate of
Taqi Hussain was annexed. He added that
once the same was challenged before the
court of Civil Judge, J.D., Mehmudabad,
Sitapur, after considering the facts and
circumstances the order was passed on
12.05.2015, while discussing the fact that
the death certificate of Taqi Mohd is forged
which was produced by the applicant at the
time of executing the Mutation application.
Learned
counsel
has
placed
the
supplementary affidavit dated 13.07.2023
7 All. Kazim Mehndi Vs. Zubedia Begum & Anr.
407
annexing therein the photocopy of the
judgment and order dated 12.05.2015,
which is taken on record.

14. Attention has been drawn during
course of hearing that the trial court
directed the Executive Officer of Nagar
Palika Parishad, Medmudabad, Sitapur to
submit its report regarding the death
certificate of Taqi Hussain and in response
thereof, it was intimated and reported that
the death certificate which was submitted
by the present applicant is a forged and that
was cancelled. The relevant paragraph of
the aforesaid order is quoted here in under:-

यडद वादीर्ण एवं प्रडतवादीर्ण के द्वारा प्रस्तुत अडभलेिीय
साक्ष्य प उनके द्वारा प्रस्तुत तकों को देिा िाए तो प्रस्तुत बाद में श्री
तकी हुसैन के सम्बन्ध में प्रडतवादीर्ण द्वारा मृत्यु प्रमाण पत्र 42 र्-
1 दाडिल डकया र्या है. डिसमें श्री तकी हुसैन की मृत्यु की डतडथ
15.04.1990 अंडकत है. िबडक वादीर्ण द्वारा तकी हुसैन का
मृत्यु प्रमाण पत्र 48 र्-1 दाडिल डकया र्या है, डिसमें उनकी मृत्यु
की डतडथ डद० 02.04.1993 अंडकत है। न्यायालय द्वारा इस तथ्य
को स्पष्ट करने के डलए अडधशाषी अडधकारी नर्र पाडलका पररषद
महमूदाबाद सीतापुर को पत्र का० सं0 60 र्-2 में डलिा र्या डक
िो उभय पक्ष द्वारा एक ही व्यडक्त तकी हुसैन के दो मृत्यु प्रमाण पत्र
दाडिल डकये र्ये हैं, उनकी प्रमाडणकता क्या है। इसके अलोक में
अडधशाषी अडधकारी नर्र माडलका पररषद महमूदाबाद, सीतापुर की
आख्या 61 र्-2 प्राप्त हुआ, डिन्होने अपनी आख्या दी डक श्री
तकी हुसैन के मृत्यु की डतडथ 15.04.1990 र्लत है, इस मृत्यु
प्रमाण पत्र को कायागलय के पत्र सं0 125 डद० 26.03.2015
द्वारा डनरस्त डकया िा चुका है। इस प्रकार श्री तकी हुसैन के मृत्यु की
डतडथ 02.04.1993 ही सही है तथा मृत्यु की डतडथ
15.04.1990 पूणगतया र्लत है।

15. Referring the he submits that it is
prima facie evident from the judgment and
the report of the executive officer that the
death certificate of Taqi Mohammad, which
was produced was found forged and
therefore, the complaint which has been
instituted by the complainant thereafter, the
same was treated as complaint case, the
statement of the complainant and witnesses
were recorded and there is no deviation
regarding the allegation with respect to
preparing of forged death certificate of Taqi
Mohammad.

16. Learned counsel appearing for the
opposite party further submits that prima
facie perusal of the order dated 06.03.2018,
it transpires that the fact and the reasons
have been discussed exhaustively. He
further added that while passing the order
the learned trial court has also gone into the
statement of the complainant and the
witnesses which was recorded under
section 200 and 202 of the Cr.P.C.

17. Concluding the arguments, he
submits
that
the
criminal
and
civil
proceeding can go on simultaneously, and
once it has prima facie from the report of
Executive Officer that the death certificate
is forged and that was cancelled, the order
passed dated 06.03.2018 by the learned
trial court, is quashed, adhering the
provisions of law and thus, the same is not
entitled to be set aside.

18. On the other hand, learned
counsel appearing for the State has also
vehemently opposed the contentions of
learned counsel for the applicant and
submits that the order dated 06.03.2018
passed by the learned trial court is assailed
and about five years have been passed and
after 12.01.2023, there is no interim order
in this application. Adding his argument, he
submits that it is apparent from the criminal
proceeding itself that forged certificate was
prepared by the applicant and later on it
was cancelled by the Executive Officer,
Nagar
Palika
Parishad,
further
the
statement of witnesses and complainant are
intact and there seems to be no deviation
408 INDIAN LAW REPORTS ALLAHABAD SERIES
thereof. Thus, the learned trial court has no
occasion, not to believe on the statement of
complainant and the witnesses recorded
under section 200 and 202 of Cr.P.C. The
criminal intent after preparing the forged
document 1.e. death certificate is prima
facie evident that the same was prepared
for wrongful gain and thus, this cannot be
decided at this stage that the statement of
the witnesses and the complainant are
incorrect because there is no erroneousness
in the summoning order dated 06.03.2018
passed by the learned trial court.

19. Adding his argument, he submits
that the factual dispute has been raised
before
this
Court
which
cannot
be
entertained and examined at this stage and
furthermore,
the
civil
and
criminal
proceedings are there consequences and
that cane be go on simultaneously as the
law is very clear on this point, might be any
dispute in between the parties in respect to
the civil matter, but this does not mean that
on the carve of the aforesaid dispute of
persons is allowed to commit forgery.
Therefore, his submission is that the
applicant is not entitled for any relief.

20. Having heard learned counsels for
the parties and after perusal of material
placed on record, it emerges that the
criminal case has been instituted against the
present applicant with an allegations that he
with a view to inherit the property has got
prepared the forged death certificate of Taqi
Hussain, and an application was instituted
by the complainant under section 156 (3) of
Cr.P.C. which was treated as complaint
case,
wherein
the
statement
of
the
complainant
and
the
witnesses
were
recorded. From perusal of the statements, it
is evident that those, supports the version
of the complainant and there is no deviation
in the same.

21. Undoubtedly, prima facie there
seems to be civil dispute in between the
parties but so far as getting prepared the
death certificate of Taqi Hussain by the
present applicant is concerned, it prima
facie show that the same was prepared
willfully and dishonestly. The Executive
Officer
of
Nagar
Palika
Parishad,
Mehmudabad, Sitapur, cancelled the forged
death certificate vide letter no. 125 dated
26.03.2015. This fact is evident from the
interim order dated 12.05.2015 passed in
civil suit no. 101 of 2015 annexed along
with the supplementary affidavit dated
13.07.2023 wherein, during the proceeding
this fact was also got verified, while calling
the report from Executive Officer of Nagar
Palika Parishad, Mehmudabad, Sitapur,
wherein it was informed that the death
certificate of Taqi Hussain, wherein the
date of death was shown as 15.07.1990 was
wrong and therefore, the same was
cancelled.

So far as the submissions of learned
counsel for the applicant is concerned that
the applicant is heir by operation of law
and there was no need to submit any kind
of forged documents with respect to the
death
of
Taqi
Mohammad,
is
not
sustainable, as then what was the occasion
for the present applicant to submit a forged
death certificate, which indicates that there
was some expectation of wrongful gain by
him.

22. In support of the submissions, the
applicant has also referred the judgments of
Devendra and Others versus State of
U.P. and another and Inder Mohan
Goswami and another versus State of
Uttaranchal and others (Supra), which
do not attract in the instant matter as the
fraudulent and dishonest intention is
apparent from getting prepared the death
7 All. Mohd. Khalid @ Khalid Vs. Union of India & Anr.
409
certificate and submitting the same before
the public authority for wrongful gain is
very overt. The Hon'ble Apex Court in
aforesaid cases has very categorically
distinguished the 'the intention of doing any
wrong
and
fraudulent
or
dishonest
intention. Vide the aforesaid judgments it
has very clearly been held that the superior
courts
shall
ensure
that
criminal
prosecution is not used as an instrument of
harassment, but on the other hand it has
also been held that inherent jurisdiction
under section 482 of Cr.P.C. be exercised
sparingly and carefully. It has also been
held that there can be no hard and fast rule
and each case has to be considered on its
own merits. It is further said that the
genuine complaint, keeping in view of the
purport and object, would not be interfered.
This court has also noticed that the counsel
for the applicant has also failed to
demonstrate that how any cognizable
offence was not made out as the statements
of the witnesses and the complainant are
intact and prima facie there is a record
which is said to be forged and the applicant
seems to be beneficiary.

23. It is trite law that the testimony of
the witnesses cannot be examined by this
Court and deciding the fate of the trial
while giving finding that those testimonies
are baseless is not proper at this stage and
further the criminal and civil proceedings
can
go
on
as
there
are
different
consequences of the same.

24. Before parting with the judgments,
it is clarified that the observations made
hereinabove would have no bearing on the
merit of the criminal case no 6395 of 2017
pending before the trial court.

25.

Considering
above
said
submissions and discussions, this Court
finds no merit in this case and thus, the
instant application is hereby dismissed.
----------
(2023) 7 ILRA 409
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application u/s 482 No. 6191 of 2023

Mohd. Khalid @ Khalid ...Applicant
Versus
Union of India & Anr. ...Opp. Parties

Counsel for the Applicant:
Anil Kumar Pandey

Counsel for the Opp. Parties:
S M Singh Royekwar

Criminal Law - Criminal Procedure Code,
1973 - Sections 211, 215, 464 & 482. -
Indian Penal Code, 1860 - Sections 34,
302
&
323
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8 & 21: - Application - for quashing
the charge-sheet - offence of murder -
punishment of voluntarily causing hurt - FIR -
search & arrest - recovery memo - investigation
- framing charges
- NBW
- effect of
omission/error to frame charge - even after
regular presence of the present applicant before
the trial court, non bailable warrant has bene
issued for only one day delay, which is too harsh
- applicant give undertaking that he will remain
present before the trial court on each and every
date and he will not take any unnecessary
adjournment and therefore, the NBW issued
against the applicant my not be give effect -
court finds that, so far as the provision of
section 215 Cr.P.C. is concern, unless the
accused is misled by such omission or any
prejudice is caused to him, errors can be
rectified at subsequent stage - held, provision
of section 464 Cr.P.C. provides mechanism for
rectifying the error even at the stage of appeal
or revision - thus, court is of considered opinion
that error and omission in 'charge' can be