Allahabad High Court
Rajesh Pandey And 2 Others vs State Of Up And 3 Others on 30 May, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:98730-DB Reserved on 16.05.2024 Delivered on 30.05.2024 Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 7037 of 2024 Petitioner :- Rajesh Pandey And 2 Others Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Krishna Kant Vishwakarma,Rajesh Kumar Singh Counsel for Respondent :- G.A.,Gaurav Kakkar,Pravin Kumar Mishra,Rishab Agrawal Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Rajesh Kumar Singh, learned counsel for the petitioner, learned A.G.A. for the State-respondent Nos.1 to 3, Sri Gaurav Kakkar and Sri Pravin Kumar, learned counsel for the respondent No.4 and perused the material on record.
2. The present writ petition has been preferred with the prayer to quash the impugned First Information Report dated 17.04.2024 giving rise to Case Crime No.57 of 2024, under Sections 419, 420, 467, 468, 471 and 506 I.P.C., Police Station-Newaria, District-Jaunpur and for a direction to the respondents not to arrest the petitioner in pursuance of impugned First Information Report.
3. There is an allegation in the FIR lodged by respondent No.4-Pankaj Dubey, alleging that he had purchased the land bearing Plot No.535 admeasuring in area 0.117 hectares on 19.12.2023 from one Chandrabali after paying the sale consideration. Om Narayan Pandey, trustee of Himtaj Charitable Trust, Newaria, got an agreement to sale executed from one Piyari Devi on 06.02.1991 regarding her share in the aforesaid plot of land. The aforesaid agreement to sale was without transfer of possession and it was agreed that trust will get the sale deed registered within three years. After the death of Piyari Devi, her two sons out of three namely, Vijay Shankar and Shiv Prashad, as well as two witnesses, namely, Rajesh Kumar and Bhupendra Pathak have executed sale deed of 8 Ayre of land on 07.12.2024 in favour of Rajesh Pandey-petitioner No.1, who is office bearer of Himtaj Charitable Trust knowing that vendors had only two Ayre of share in the aforesaid land. They have also occupied the land, which is more than two Ayre. The aforesaid sale deed has been executed by way of cheating and fraud and accused have tried to take forceable possession over the same. They are threating the informant and also demanding Rs.15 lakhs.
4. Learned counsel for the petitioner submitted that there is no demarcation of the land in dispute and false allegations have been made in the FIR regarding the share of Piyari Devi. The suit praying for decree of permanent injunction has already been instituted, being Original Suit No.39 of 2024, by petitioner No.1, Rajesh Pandey, before Civil Judge (Junior Division), Jaunpur and spot inspection report has been submitted therein. He further submitted that dispute between the parties is basically civil in nature and allegations that the petitioners have done forgery and prepared some valuable security is not borne out from the allegations on record.
5. Learned counsel for the petitioners has placed before this Court the judgment of the Hon?ble Apex Court in the case of Mohammed Ibrahim and others vs. State of Bihar and Another reported in (2009) 8 SCC 751.
6. Learned counsel for the respondent No.4 has vehemently opposed the submissions of learned counsel for the petitioners and submitted that land in dispute was jointly owned by Piyari Devi, Ashok Kumar and Markandey Lal. After the death of Piyari Devi, her sons succeeded to her share and two out of three sons have sold the property beyond the share of Piyari Devi. He also pointed out that petitioner No.3 is having criminal history of six cases.
7. After hearing the rival submissions of learned counsel for the parties and perused the record, this Court finds that there is a dispute regarding the share of Piyari Devi in Plot No.535. The allegation in the FIR is that her share was only two Ayre in the aforesaid land, but sale deed has been executed by her two sons out of three, of eight Ayre of land in favour of petitioner No.1. The dispute regarding the correct share of Piyari Devi in the joint plot No.535 is yet to be determined in by the Civil Court or Investigating Officer, who is investigating the case. Regarding commission of offences alleged reference to judgment of the Apex Court in the case of Mohammed Ibrahim (supra) is relevant and quoted hereinbelow:-
?10. Section 467 (insofar as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.
11. Section 470 defines a forged document as a false document made by forgery. The term ?forgery? used in these two sections is defined in Section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
12. Section 464 defining ?making a false document? is extracted below:
?464. Making a false document.?A person is said to make a false document or false electronic record?
First.?Who dishonestly or fraudulently?
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.?Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.?Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1.?A man's signature of his own name may amount to forgery.
Explanation 2.?The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note.? The words ?digital signature? wherever they occur were substituted by the words ?electronic signature? by Amendment Act 10 of 2009.]?
(emphasis supplied)
13. The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a ?false document?, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
8. Sale deed executed by two sons of Piyari Devi, clearly and obviously do not fall under all the category of ?false documents?. It therefore remains to be seen whether the claim of the respondente No.4 that disputed execution of sale deed by two sons of Piyari Devi, amounted to committing forgery of the documents with the intention of taking possession of the informant's land by petitioners (purchaser and witnesses) and it would bring the case under Sections 467, 468 and 471 I.P.C.
9. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of ?false documents?, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
10. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.
11. Regarding omission of offences under Sections 419 and 420 I.P.C., paragraph Nos.18 and 19 of the judgment aforesaid are relevant and quoted hereinbelow:-
?18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of ?cheating? are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived.
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part of valuable security (or anything signed or sealed and which is capable of being converted into a valuable security.)
12. In the present case, the petitioner No.1 is purchaser of disputed property and not the seller. He himself has purchased it from sons of Piyari Devi. The Act of deception may have been committed by sellers and not by the petitioners.
13. In view of the above, the writ petition is disposed of directing that till cognizance is taken on police report under Section 173(2) Cr.P.C., by the court, the respondents shall not arrest the petitioners pursuant to the F.I.R. dated 17.04.2024 giving rise to Case Crime No.57 of 2024, under Sections 419, 420, 467, 468, 471 and 506 I.P.C., Police Station-Newaria, District-Jaunpur, subject to cooperation in ongoing investigation.
14. Any observation made in this order will not affect the trial and trial court shall try the offences alleged being uninfluenced by observations made in the judgment.
Order Date :- 30.5.2024 Amit (Surendra Singh-I,J.) (Siddharth,J.)