The Bihar government wants to take my land by saying that it is a government property. However, my great grandfather had purchased this land and it has been devolved upon my father. This land is agricultural land and currently we have possession thereon. The Tehsildar sent a notice that the aforesaid land is not surveyed. I have a copy of sale deed of that property. However, the sale deed clearly states that my great grandfather has purchased this land in 356 rupees and 80 paisa.
You have a valid sale deed which proves the transfer of ownership from seller to buyer. This sale deed is a valid document to prove your ownership therefore, government cannot claim possession after such a long period. Whether the revenue officer conducted a survey in respect of said land is a matter of fact. This fact does not give power to interfere in the valid right of property.
Take certified copy of khatauni
You should take certified copy of khatauni (book of rights) from the revenue department. Revenue department prepares Khatauni on the interval of six years each and keeps all records pertaining to the rights of tenure holder. It shows Fasli years instead of Gregorian calendar. So, you should take khatauni of the year of execution of sale deed. It will show the name of owner at the time of sale. Thereafter, you should take khatauni of the next Fasli year.
The record of khatauni will clearly show the actual possession and owner of the land. Survey of the land does not matter if the reveue department is continuously preparing your land's record. If there is any discrepancy in khatauni then you should move a suit for correction in khatauni.
File a civil suit if Government wants to take your land
However, you have solid evidence to prove your ownership but be ready to file a civil suit if government initiates proceeding for taking your land. You have prima facie evidence to prove your ownership and you are in possession of the land. In this situation you should move a civil suit for declaration of your right. Section 34 of the Specific Relief Act provides a remedy to protect right in respect of property.
If any person assails or interferes in the property right then aggrieved person can file a declaratory suit. The court declares his right in the property and stop others to interfere in his right. Even the Government cannot interfere after such declaration of the court.
Someone threatens to demolish our property which is in possession for 50 years. There was a plot of 22 decimal, in which my father got ownership of 20 decimal. 2 decimals. plot couldn't be written to anyone (might by mistake). But still in our possession since then.
In land survey of Bihar, (approximately in 1973), a separate plot of 18 decimal carved out from 20 decimal exhibited plot -A (our possession)). Remaining 2 decimal (out of 20) and other 2 decimal (that couldn't be written) got merged to a different plot (say it plot B). Plot B doesn't even belong to any of my ancestor even. It belongs to a person of different caste. Plot B is of 10 decimals. Four decimals in our possession and 6 decimals in owner of B possession.
Since death of my father in 2010, he started claiming this four decimals land, and now in 2021 he wants to demolish structures in it.
Question: Is it possible to recover all 4 decimal that has been merged to plot B. Can he demolish it legally? What action should I take on owner of land B, if he demolishes my structures in 4 decimals that is in our possession since 50 yrs.
There are two separate plots properly recorded in the revenue records. Plot A is in your possession which is comprising of twenty decimals. The whole twenty decimals are in your possession. Ownership on plot A is undisputed because you have been in possession for fifty years.
Your possession is peaceful because your neighbour has never assailed ownership till 2010. However, he is claiming owner upon four decimals land after your father’s death, but he did not initiate any legal proceeding against you.
File injunction suit as soon as possible
In this circumstance you should file an injunction suit as soon as possible. Your neighbour has no right to demolish any construction erected in your land. He has no right to interfere in your possession either directly or indirectly. So, you should stop him to interfere in enjoyment of right by filing injunction suit.
The court will grant ad-interim relief and preclude him to demolish any construction till the disposal of civil suit. Thereupon he cannot threatens to demolish your property or cause unnecessary disturbance. If he does so then you can immediately approach the court. The court will stop such acts and ask surety from your neighbour.
File declaratory suit
In this condition you should get declaration from the court that you have exclusive ownership over the plot A. This right is essential in the current circumstance. Declaration from the court will exclude all the person to claim right, title or ownership on your plot. Hence, it is mandatory to file a declaratory suit against your neighbour.
Whether sanction is necessary for retired employee? A loan was sanctioned in August 2012. CBI admitted the case, employee retired in 31st march 2013. The bank filed complaint with CBI without charging sanctioning authority in 1.6 2017. CBI filed case on 30.07.2019 without taking approval from sanctioning authority. Case was admitted in CBI court. Bank subsequently refused permission for prosecution and sanction was denied. Recently case is standing at the point of charge.
As the bank has filed complaint after four years with CBI and also sanction have denied by the bank. Whether discharge is possible under above circumstance.
The CBI initiated proceeding against you after the retirement therefore, you are not entitle to take protection granted to public servant under section 19 of the Prevention of Corruption Act. If the court would have taken congnisance on or before the retirement then sanction was mandatory [K. Veeraswami v. Union of India, (1991) 3 SCC 655].
Whether sanction is necessary for retired employee?
The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. [State of Punjab v. Labh Singh, (2014) 16 SCC 807]
The above provision is applicable if charges sheet is produced for the offence punishable under the Prevention of Corruption Act. If the charge sheet did not file under the PC Act then a retired public service is entitled to take the protection available to him under section 197 of the Code of Criminal Procedure (crpc).
If charge sheet is relating to the offences punishable under the Indian Penal Code (IPC), then sanction is mandatory [State of H.P. v. Nishant Sareen, (2010) 14 SCC 527]. According to section 197 crpc, court cannot frame charge without sanction of the concerned authority. As you said that sanction has been denied, so court cannot frame charge against you if the offence committed under the IPC only. In this condition discharge is possible.
Accused cannot file revision against order of investigation passed by the Magistrate under section 156(3) of the code of criminal procedure. When the officer in charge of the police station and superintendent of police have refused to lodge the FIR then the victim approach the court under Section 156(3) crpc. The Magistrate may order such an investigation. He directs the police to register an FIR and investigate the case.
In Lalita Kumari vs Govt. of U.P. and others, AIR 2014 SC 187 the Supreme Court has held that registration of first information report is mandatory if information discloses commission of cognisable offence. Thus victim of crime invokes his right to register FIR ang investigate the crime under section 156(3) CrPC.
Order under section 156(3) is an interlocutory order
The order under section 156(3) is interlocutory in nature. When the Magistrate recalls a report from the police station or directs the police officer to start investigation under section 156(3), it does not adjudicate any legal right of parties. Interlocutory order means an order which is not a final decision of the court. In Atul Pandey alias Param Pragyan vs State of U.P., the Allahabad High Court has held that interlocutory orders are purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties.
Section 397(2) clearly states that "The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding." Therefore, accused cannot file revision petition against interlocutory order. In Father Thomas Vs. State of U.P. and others 2011 (72) ACC 564, High Court Allahabad holds that revision is not maintainable against order of investigation u/s 156(3) crpc.
Moreover the accused has no right to contest the application filed under section 156(3) crpc. If the Magistrate passes any order it does not affect the right of accused. He has other remedies to protect himself from mala-fide investigation.
Thus, accused cannot invoke section 397 crpc and file a revision against such order. He can also not move a writ petition before the High Court under Article 226, constitution of India for quashing of investigation. Order u/s 156(3) is only a direction to investigate against prospective accused. The prospective accused has no locus standi to challenge such a direction. He can challenge it court takes cognisance or issues process (summon or warrant) against him.
Even a blank cheque would attract presumption under section 139 of the Negotiable Instrument Act. Section 139 of NI Act, raises presumption in favor of holder of cheque that it was issued in discharge of debt or other liability. The accused cannot rebut this presumption merely on the ground that he has given a blank cheque for the purpose other than discharge of debt.
The holder of cheque can file a complaint under section 138 NI Act if drawer dishonours the cheque. When holder of cheque produces duly signed cheque the law presumes that accused issued the cheque in discharge of debt or other liability. The drawer of cheque cannot take plea that it was blank a cheque and not given to complainant in discharge of debt.
In Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106 the Supreme Court has held that accused can rebut the presumption by bringing on record such facts and circumstances as to show the preponderance of probabilities towards absence of debt and other financial liability.
Court cannot demand evidence from the complainant
When the accused takes plea that dishonoured cheque was a blank cheque the court cannot demand evidence from the complainant to prove that cheque was issued in discharge of financial liability. In M/s. Kalamani Tex & Anr vs P. Balasubramanian Criminal Appeal no. 123 of 2021 the Supreme Court has held that accused cannot rebut the statutory presumption under section 139 NI Act merely saying that alleged cheque was a blank cheque particularly when he admitted his signature bearing on the cheque.
Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated
M/s. Kalamani Tex & Anr vs P. Balasubramanian Criminal Appeal no. 123 of 2021
The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him.
M/s. Kalamani Tex & Anr vs P. Balasubramanian Criminal Appeal no. 123 of 2021
Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt.
M/s. Kalamani Tex & Anr vs P. Balasubramanian Criminal Appeal no. 123 of 2021
Blank cheque would attract presumption under section 139
In Bir Singh v. Mukesh Kumar (2019) 4 SCC 197 the Supreme Court holds that Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
Therefore, court cannot seek evidence from the complainant to prove that alleged cheque was issued in discharge of debt or other liability. The complainant is entitled to take the benefit of section 139 NI Act. Presumption will attract in favour of complainant that cheque was issued in discharge of debt or other liability. It is liability of accused to prove that there was no debt or liability existed at the time of issuance of cheque. The accused has to prove that the said cheque was not issued in discharge of debt or other liability.
Court convicted my brother for the offence of forgery. Conviction is solely based on handwriting expert. His evidence is the main reason of conviction. There is no other evidence which proves that he has committed the crime of forgery.
His wife filed FIR against him saying that he has issued false medical certificates. She has no good relation with him therefore she has been trying to send him behind the bar. Few persons got job in PAC on the forged medical certificates. The government had set up a SIT to investigate that matter. Its findings shows that medical officer of XXX PHC had issued those certificates.
However, the SIT took the statement of my brother and found no incriminating evidence against him. But later on his wife produced some letter head (medical certificates) before the SIT thereafter SIT files charge sheet against him. SIT had no evidence except the opinion of hand writing expert that matters written on those latter heads were in my brother's handwriting. Sir, what should I do?
The court cannot convict the accused solely on the evidence of handwriting expert. Some independent evidence is necessary to prove the involvement of accused in the commission of crime. However, expert opinion is relevant evidence under section 45 of the Indian Evidence Act. But it is not a conclusive proof.
Expert's evidence is only an opinion
Expert's evidence is merely an opinion it is not a conclusive proof. Evidence of handwriting expert needs corroboration from direct or circumstantial evidence. In Magan Bihari Lal vs State of Punjab AIR 1977 SC 1091 the Supreme Court has held that conviction solely on expert opinion without substantial corroboration is unsafe.
Thus, corroboration of expert's opinion with other evidence is necessary. Court does not rely on the handwriting expert if no other evidence is available on record to support the opinion of expert. The science of identification of handwriting is not nearly so perfect and the risk is therefore, higher in admitting his opinion without corroboration.
Approach of court
The court cannot blindly admit the expert's opinion without corroborating with other evidence. In S. Gopal Reddy vs State of Andhra Pradesh (1996) 4 SCC 596, the Supreme Court has held that the evidence of an expert is weak type of evidence and the court don't generally consider it as a conclusive proof.
Experts may go wrong because they are human and they can make honest mistakes of conclusion. Therefore, the court should cautious in accepting their evidence. Without corroboration court should not admit their evidence, Fakhruddin vs. State of M.P. AIR 1967 SC 1326.
Conviction based on handwriting expert
Thus conviction solely based on handwriting expert is bad in the eyes of law. The court however, accept his opinion but at the same time must examine its correctness. Corroboration is the best medium to test the expert opinion. Lack of corroborative evidence forms a basis to challenge the legality of sentence. Therefore, you should file an appeal against this judgment.
