Baldev Thakur And Others vs State Of H.P. And Another on 8 January, 2024

[Cites 23, Cited by 0]

Himachal Pradesh High Court

Baldev Thakur And Others vs State Of H.P. And Another on 8 January, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 50 of 2023

.
Reserved on: 22.11.2023

Date of Decision: 08.01.2024.

Baldev Thakur and others ...Petitioners

of
Versus

State of H.P. and another
rt ...Respondents

Coram

Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.

For the Petitioners : Mr. Nitin Thakur, Advocate.

For the Respondents : Mr Prashant Sen, Deputy Advocate
General, for respondent No.1-

State, with Mr Shakti Singh, DSP
Crimes, State CID.

Mr. Ankush Dass Sood, Senior
Advocate with Mr. Aman Sood,

Advocate, for respondent No.2.

Rakesh Kainthla, Judge

The informant-respondent No.2 made a complaint to

the police that she is the legal heir and daughter of Dr. G.R.

Bazliel. Her family owns property at Mashobra which belonged

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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to her grandfather, Dr. I.R. Bazliel. This property was inherited

by Dr. G.R. Bazliel after the death of his father in 1986. Dr. G.R.

.
Bazliel developed severe depression in the year 2013. The

informant was taking care of him till 2016. Daljeet Singh,

petitioner No. 2, introduced Dr. G.R. Bazliel to Jienpuri Kamsuon

-petitioner No. 3 in the year 2016. The informant objected to the

of
relationship between her father and petitioner No. 3. When the

petitioners came to know about the objection raised by the
rt
informant, they influenced the informant's father to break his

contact with his family. He appointed Daljeet Singh as his

nominee to sell the property to Baldev Thakur-petitioner No.1.

The informant said that in case her father intended to sell the

property, the share should be given to the aunts and the

property should be sold after adopting the legal process. An

amount of ₹93.00 lacs was transferred from the account of the

informant's father. This amount was credited to his account

after the death of his wife. A total amount of ₹1.18 crore was

transferred in the name of Daljeet Singh. A sale deed was shown

to have been effected in the name of Baldev Thakur for a

consideration of ₹3.90 crores. This property was stated to be

self-acquired property contrary to the land record. No objection

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certificate was not obtained from any person. No transaction or

deposit of any amount was reflected in the accounts of Dr. G.R.

.
Bazliel. The informant went to Mashobra to meet her father and

inquired how he had sold the property. However, the

informant's father was not present at Mashobra but was stated

to have been shifted to Kufri. The informant filed a complaint

of
with the police. The remaining portion of the property was sold

to Baldev Thakur for a consideration of ₹10,50,000/-. The
rt
informant came to know about the death of her father through

social media. No person in the family was informed about the

death of the informant's father by the petitioners. The condition

of the informant's father deteriorated after 2013 and he suffered

a heart attack. He was advised to undergo routine bypass surgery

at IGMC but he was misguided not to undergo the surgery. The

petitioners had taken possession of all the articles of the

informant's father. Therefore, it was prayed that the action be

taken against them. The police registered an FIR No. 8 of 2022,

dated 26.7.2022 at Police Station CID, Shimla.

2. The petitioners filed the present petition for

quashing of the FIR. It is asserted that petitioners No.1 and 2 are

permanent residents of District Shimla and petitioner No.3 is the

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wife of Dr. G.R. Bazliel. The informant is the adopted daughter of

Dr. G.R. Bazliel. She had lodged an FIR against her father in

.
March 2017 for the commission of offences punishable under

Sections 420, 467, 468 and 471 of IPC. The police registered the

FIR No. 45 of 2017. A cancellation report was submitted by the

police at the Police Station, Dhalli, which was accepted by the

of
learned Judicial Magistrate First Class (JMFC). The petitioner

had purchased the property measuring 44-60 hectares for a
rt
consideration of ₹3 crores 90 lacs. Dr. I.R. Bazliel had written his

last Will bequeathing the property in favour of Dr. G.R. Bazliel.

The informant never cared for her father and she threatened

him during his last days. He executed an affidavit and published

the notices in the newspaper. The informant submitted a false

complaint to the police reproducing the facts of the earlier FIR

and adding certain new facts. Police registered the FIR No. 8 of

2022. This FIR is an abuse of the process of law. The informant

had accused her father during his lifetime and is accusing the

present petitioners. The earlier FIR was thoroughly investigated

by the police and a cancellation report was filed. The informant

never challenged the Will of her grandfather. The civil remedy

was not availed by the informant. She has filed a false complaint

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to settle the score with petitioner No.3. Therefore, it was prayed

that the present petition be allowed and the FIR be quashed.

3. The State has filed a reply, reproducing the contents

of the FIR. It was asserted that petitioner No.3 is residing in

Gurugram (Haryana) and is working as an Assistant Head Nurse

at Medanta Hospital. The informant had filed an FIR No. 45/17,

of
in which a cancellation report was prepared. The FIR No.8 of
rt
2022 and FIR No. 45 of 2017 are not based on the same facts.

Petitioner No.1 had failed to provide any proof of the payment of

the consideration. The signatures of Dr. G.R. Bazliel related to

his property were found to be suspicious. They have been taken

into possession by the Investigating Officer and have been sent

to the Forensic Science Laboratory for analysis. The result is

awaited. The contents of the complaint disclose the commission

of a cognizable offence. A thorough investigation is being

conducted into the allegations. It was found that two cheques of

₹93.00 lacs and ₹25.00 lacs were issued in favour of Daljeet

Singh. The signatures were found to be suspicious and they have

been sent to FSL. Daljeet Singh is the nominee in all the bank

accounts. The original documents were also seized and sent to

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the FSL. The petition is without any basis; hence it was prayed

that the present petition be dismissed.

4. A rejoinder denying the contents of the reply and

affirming those of the petition was filed by the petitioner.

5. A separate reply was filed respondent No.2, taking

of
preliminary objections regarding the petitioners being wrongful

beneficiaries of the property, lack of maintainability, petitioners
rt
having hatched a conspiracy, the investigation being continued

and the present petition being premature. It was asserted that it

emerged during the investigation that the petitioners in

connivance with each other forged the documents, committed

the offences of cheating and hatched the criminal conspiracy.

The informant's father did not have to transact any business or

deal with petitioners No.2 and 3. The marriage certificate is

manufactured and procured and no sanctity can be attached to

the same. The informant's father died within one year of the

marriage in the mysterious circumstances in the hotel room. No

postmortem examination was conducted. The dead body was

buried in Sanjauli Cemetery in a hurry. No person in the family

was informed. An amount of ₹1,23,00,000/- was transferred by

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Dr. G.R. Bazliel without any justification. The aunt and the

informant had made a complaint regarding the disposal of the

.
ancestral property. No sale consideration had ever passed. The

informant has e-mails showing the affection between the

informant and her father. The informant was sending money to

her father to meet the expenses. She had also brought the gifts

of
to him. The informant was never associated at the time of the

cancellation of the FIR. The petitioners have committed various
rt
offences. The ancestral property cannot be conveyed without the

consent of the legal heirs. Petitioner No.3 took advantage of the

age of the informant's father. The affidavit and the public

notices have been manufactured by the petitioners in

furtherance of a criminal conspiracy. Therefore, it was prayed

that the present petition be dismissed.

6. A rejoinder denying the contents of the reply and

affirming those of the petition was filed. A sur-rejoinder to the

rejoinder was also filed.

7. I have heard Mr Nitin Thakur, learned counsel for the

petitioners, Mr Prashant Sen, learned Deputy Advocate General

for respondent No. 1-State and Mr Ankush Dass Sood, learned

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Senior Counsel assisted by Mr. Aman Sood, learned counsel for

respondent No. 2-informant.

8. Mr. Nitin Thakur, learned Counsel for the petitioners

submitted that the FIR does not disclose the commission of any

cognizable offence. The allegations in the FIR even if accepted to

be true disclose the civil dispute and registration of the FIR in

of
such a situation is impermissible. The informant had lodged an
rt
FIR against her father and she was disowned by her father. The

informant's father had married petitioner No.3 and all the

petitioners were taking care of him. No objection was ever raised

by the informant's father during his lifetime. Therefore, he

prayed that the present petition be allowed and FIR be quashed.

9. Mr. Prashant Sen, learned Deputy Advocate General

for respondent no.1-State submitted that the investigation is

continuing. The documents have been sent to the SFSL, Junga

and the result is awaited. There is no evidence of transfer of

money to the informant's father and the sale deed appears to be

forged being without consideration. The police are also

investigating the documents executed by the informant's father

to determine whether he had executed those documents or if

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these were forged by the present petitioners. Hence, he prayed

that the present petition be dismissed.

10. Mr. Ankush Dass Sood, learned Senior Counsel for

respondent No. 2 submitted that the investigation is continuing

and the present petition is premature. The allegations contained

in the FIR show the commission of a cognizable offence. They

of
establish that the petitioners had hatched a conspiracy and had
rt
prevailed upon the informant's father. They had forged the

documents stated to have been executed by the informant's

father. No sale consideration was ever paid to him. Even the

burial was hurried and not as per the religion of the informant's

father. The informant's father died under the mysterious

circumstances away from his home and the circumstances

justified the investigation. There was love and affection between

the informant and her father. The burial of the deceased was not

proper. If the FIR is false, the police will submit a cancellation

report and it will be premature for the Court to intervene in the

matter. Hence, he prayed that the present petition be dismissed.

11. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

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12. The principles of exercising the jurisdiction under

Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme

.
Court in Supriya Jain v. State of Haryana, (2023) 7 SCC 711: 2023

SCC OnLine SC 765 wherein it was observed at page 716:-

"17. The principles to be borne in mind with regard to the
quashing of a charge/proceedings either in the exercise of

of
jurisdiction under Section 397CrPC or Section 482CrPC or
together, as the case may be, has engaged the attention of
this Court many a time. Reference to each and every
precedent is unnecessary. However, we may profitably
rt
refer to only one decision of this Court where upon a
survey of almost all the precedents on the point, the

principles have been summarised by this Court succinctly.
In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh
Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1
SCC (Cri) 986], this Court laid down the following guiding

principles : (SCC pp. 482-84, para 27)
"27. ...27.1. Though there are no limits to the
powers of the Court under Section 482 of the Code

but the more the power, the more due care and
caution is to be exercised in invoking these powers.

The power of quashing criminal proceedings,
particularly, the charge framed in terms of Section

228 of the Code should be exercised very sparingly
and with circumspection and that too in the rarest
of rare cases.
27.2. The Court should apply the test as to whether
the uncontroverted allegations as made from the
record of the case and the documents submitted
therewith prima facie establish the offence or not. If
the allegations are so patently absurd and
inherently improbable that no prudent person can
ever reach such a conclusion and where the basic

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ingredients of a criminal offence are not satisfied
then the Court may interfere.
27.3. The High Court should not unduly interfere.

.
No meticulous examination of the evidence is

needed for considering whether the case would end
in conviction or not at the stage of framing of
charge or quashing of charge.

27.4. Where the exercise of such power is absolutely
essential to prevent patent miscarriage of justice
and for correcting some grave error that might be

of
committed by the subordinate courts even in such
cases, the High Court should be loath to interfere, at
the threshold, to throttle the prosecution in the
rt
exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in

any of the provisions of the Code or any specific law
in force to the very initiation or institution and
continuance of such criminal proceedings, such a
bar is intended to provide specific protection to an

accused.
27.6. The Court has a duty to balance the freedom of
a person and the right of the complainant or

prosecution to investigate and prosecute the

offender.
27.7. The process of the court cannot be permitted
to be used for an oblique or ultimate/ulterior

purpose.
27.8. Where the allegations made and as they
appeared from the record and documents annexed
therewith predominantly give rise to and constitute
a "civil wrong" with no "element of criminality"
and does not satisfy the basic ingredients of a
criminal offence, the court may be justified in
quashing the charge. Even in such cases, the court
would not embark upon the critical analysis of the
evidence.

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27.9. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine

.
whether there is sufficient material on the basis of

which the case would end in a conviction; the court
is concerned primarily with the allegations taken as
a whole whether they will constitute an offence and,

if so, is it an abuse of the process of court leading to
injustice.
27.10. It is neither necessary nor is the court called

of
upon to hold a full-fledged enquiry or to appreciate
evidence collected by the investigating agencies to
find out whether it is a case of acquittal or
conviction.
rt
27.11. Where allegations give rise to a civil claim and
also amount to an offence, merely because a civil

claim is maintainable, does not mean that a criminal
complaint cannot be maintained.
27.12. In the exercise of its jurisdiction under Section

228 and/or under Section 482, the Court cannot take
into consideration external materials given by an
accused for reaching the conclusion that no offence

was disclosed or that there was the possibility of his
acquittal. The Court has to consider the record and

documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule

of continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined
to permit a continuation of prosecution rather than
its quashing at that initial stage. The Court is not
expected to marshal the records with a view to
deciding the admissibility and reliability of the
documents or records but is an opinion formed
prima facie.
27.14. Where the chargesheet, reported under Section
173(2) of the Code, suffers from fundamental legal

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defects, the Court may be well within its jurisdiction
to frame a charge.
27.15. Coupled with any or all of the above, where the

.
Court finds that it would amount to an abuse of

process of the Code or that the interest of justice
favours, otherwise it may quash the charge. The
power is to be exercised ex debitojustitiaei. e. to do

real and substantial justice for the administration of
which alone, the courts exist.
***

of
27.16. These are the principles which individually
and preferably cumulatively (one or more) be taken
into consideration as precepts to exercise
rt
extraordinary and wide plenitude and jurisdiction
under Section 482 of the Code by the High Court.

Where the factual foundation for an offence has
been laid down, the courts should be reluctant and
should not hasten to quash the proceedings even on
the premise that one or two ingredients have not

been stated or do not appear to be satisfied if there
is substantial compliance with the requirements of
the offence."

13. Similar is the judgment in Gulam Mustafa v. State of

Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-

"26. Although we are not for verbosity in our judgments,
a slightly detailed survey of the judicial precedents is in
order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335, this Court held:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following

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categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of

.
justice, though it may not be possible to lay down any

precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such

power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken

of
at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a
rt case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR

do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in

support of the same do not disclose the commission
of any offence and make out a case against the

accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act

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(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the

.
Code or the concerned Act, providing efficacious

redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is

maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.

of
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in the
rt
rarest of rare cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR
or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court to
act according to its whim or caprice."

(emphasis supplied)
14. It was laid down in CBI v. Aryan Singh, 2023 SCC

OnLine SC 379, that the High Court cannot conduct a mini-trial

while exercising jurisdiction under Section 482 of Cr.P.C. The

allegations are required to be proved during the trial based on

evidence led before the Court. It was observed:

"10. From the impugned common judgment and order
passed by the High Court, it appears that the High Court
has dealt with the proceedings before it, as if, the High
Court was conducting a mini-trial and/or the High Court
was considering the applications against the judgment
and order passed by the learned Trial Court on conclusion
of the trial. As per the cardinal principle of law, at the

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stage of discharge and/or quashing of the criminal
proceedings, while exercising the powers under
Section 482 Cr. P.C., the Court is not required to conduct

.
the mini-trial. The High Court in the common impugned

judgment and order has observed that the charges against
the accused are not proved. This is not the stage where
the prosecution/investigating agency is/are required to

prove the charges. The charges are required to be proved
during the trial on the basis of the evidence led by the
prosecution/investigating agency. Therefore, the High

of
Court has materially erred in going in detail in the
allegations and the material collected during the course
of the investigation against the accused, at this stage. At
the stage of discharge and/or while exercising the powers
rt
under Section 482 Cr. P.C., the Court has very limited
jurisdiction and is required to consider "whether any

sufficient material is available to proceed further against
the accused for which the accused is required to be tried
or not".
11. One other reason pointed by the High Court is that the

initiation of the criminal proceedings/proceedings is
malicious. At this stage, it is required to be noted that the
investigation was handed over to the CBI pursuant to the

directions issued by the High Court. That thereafter, on
conclusion of the investigation, the accused persons have

been charge-sheeted. Therefore, the High Court has erred
in observing at this stage that the initiation of the

criminal proceedings/proceedings is malicious. Whether
the criminal proceedings was/were malicious or not, is
not required to be considered at this stage. The same is
required to be considered at the conclusion of the trial. In
any case, at this stage, what is required to be considered
is a prima facie case and the material collected during the
course of the investigation, which warranted the accused
to be tried."

15. This position was reiterated in Abhishek v. State of

M.P. 2023 SCC OnLine SC 1083 wherein it was observed:

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12. The contours of the power to quash criminal
proceedings under Section 482 Cr. P.C. are well defined.
In V. Ravi Kumar v. State represented by Inspector of Police,

.
District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC

568], this Court affirmed that where an accused seeks
quashing of the FIR, invoking the inherent jurisdiction of
the High Court, it is wholly impermissible for the High

Court to enter into the factual arena to adjudge the
correctness of the allegations in the complaint.
In Neeharika Infrastructure (P). Ltd. v. State of

of
Maharashtra [Criminal Appeal No. 330 of 2021, decided on
13.04.2021], a 3-Judge Bench of this Court elaborately
considered the scope and extent of the power under
Section 482 Cr. P.C. It was observed that the power of
rt
quashing should be exercised sparingly, with
circumspection and in the rarest of rare cases, such

standard not being confused with the norm formulated in
the context of the death penalty. It was further observed
that while examining the FIR/complaint, quashing of
which is sought, the Court cannot embark upon an

enquiry as to the reliability or genuineness or otherwise
of the allegations made therein, but if the Court thinks fit,
regard being had to the parameters of quashing and the

self-restraint imposed by law, and more particularly, the
parameters laid down by this Court in R.P. Kapur v. State of

Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan
Lal [(1992) Supp (1) SCC 335], the Court would have
jurisdiction to quash the FIR/complaint.

16. It is apparent from these judgments that power

under Section 482 of Cr.P.C. can be exercised to prevent the

abuse of process or secure the ends of justice. The Court can

quash the F.I.R. if the allegations do not constitute an offence or

make out a case against the accused. However, it is not

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permissible for it to conduct a mini-trial to arrive at such

findings.

17. It was submitted that the police are conducting the

investigation and the FIR cannot be quashed. This submission is

not acceptable. It was laid down by Hon'ble Supreme Court in

Uma Shankar Gopalika v State of Bihar, (2005) 10 SCC 336 that

of
when the complaint fails to disclose any criminal offence the
rt
proceeding is liable to be quashed under Section 482 of the Code

even during the investigation. It was observed:

'In our view petition of complaint does not disclose any

criminal offence at all much less any offence either under
Section 420 or Section 120-B IPC and the present case is a
case of purely civil dispute between the parties for which

remedy lies before a civil court by filing a properly
constituted suit. In our opinion, in view of these facts

allowing the police investigation to continue would
amount to an abuse of the process of court and to prevent
the same it was just and expedient for the High Court to

quash the same by exercising the powers under Section
482 Code which it has erroneously refused.'

18. Similarly it was held in Neeharika Infrastructure Pvt.

Ltd. v. State of Maharashtra and Others, 2021 SCC OnLine SC 315,

that the Courts will not thwart an investigation but where the

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FIR does not disclose the commission of cognisable offence, it

will not allow the investigations to proceed. It was observed:-

"57. From the aforesaid decisions of this Court, right
from the decision of the Privy Council in the case of
Khawaja Nazir Ahmad (supra), the following principles of

law emerge:
i) The police has the statutory right and duty under
the relevant provisions of the Code of Criminal

of
Procedure contained in Chapter XIV of the Code to
investigate into cognizable offences;
ii) Courts would not thwart any investigation into
rt
the cognizable offences;
iii) However, in cases where no cognizable offence

or offence of any kind is disclosed in the first
information report the Court will not permit an
investigation to go on;

iv) The power of quashing should be exercised
sparingly with circumspection, in the 'rarest of rare
cases'. (The rarest of rare cases standard in its
application for quashing under Section 482 Cr.P.C.

is not to be confused with the norm which has been

formulated in the context of the death penalty, as
explained previously by this Court);
v) While examining an FIR/complaint, quashing of

which is sought, the court cannot embark upon an
enquiry as to the reliability or genuineness or
otherwise of the allegations made in the
FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at
the initial stage;
vii) Quashing of a complaint/FIR should be an
exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping
the jurisdiction of the police, since the two organs

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of the State operate in two specific spheres of
activities. The inherent power of the court is,
however, recognised to secure the ends of justice or

.
prevent the above of the process by Section 482

Cr.P.C.
ix) The functions of the judiciary and the police are
complementary, not overlapping;

x) Save in exceptional cases where non-
interference would result in miscarriage of justice,
the Court and the judicial process should not

of
interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court
do not confer an arbitrary jurisdiction on the Court
rt
to act according to its whims or caprice;
xii) The first information report is not an

encyclopaedia which must disclose all facts and
details relating to the offence reported. Therefore,
when the investigation by the police is in progress,
the court should not go into the merits of the

allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature
to pronounce the conclusion based on hazy facts

that the complaint/FIR does not deserve to be

investigated or that it amounts to abuse of process
of law. During or after the investigation, if the
investigating officer finds that there is no

substance in the application made by the
complainant, the investigating officer may file an
appropriate report/summary before the learned
Magistrate which may be considered by the learned
Magistrate in accordance with the known
procedure;
xiii) The power under Section 482 Cr.P.C. is very
wide, but the conferment of wide power requires
the court to be cautious. It casts an onerous and
more diligent duty on the court;

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21

xiv) However, at the same time, the court, if it
thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law,

.
more particularly the parameters laid down by this

Court in the cases of R.P. Kapur (supra) and Bhajan
Lal (supra), has the jurisdiction to quash the
FIR/complaint; and xv) When prayer for quashing

the FIR is made by the alleged accused, the court
when it exercises the power under Section 482
Cr.P.C., only has to consider whether or not the

of
allegations in the FIR disclose the commission of a
cognizable offence and is not required to consider
on merits whether the allegations make out a
cognizable offence or not and the court has to
rt
permit the investigating agency/police to
investigate the allegations in the FIR. "

19. It is apparent from the Judgments of the Hon'ble

Supreme Court that F.I.R. can be quashed if it does not disclose

the commission of an offence. This power can be exercised even

during the investigation and the submission that power cannot

be exercised when the investigation is being conducted is not

acceptable.

20. Both parties have relied upon various documents

filed by them as Annexure to their petition, reply, rejoinder and

sur-rejoinder. However, it is not permissible to look into the

documents annexed by the parties while exercising jurisdiction

under Section 482 of Cr.P.C. It was laid down by the Hon'ble

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22

Supreme Court in MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1: 1983

SCC (Cri) 115, that the proceedings can be quashed if on the face

.
of the complaint and the papers accompanying the same no

offence is constituted. It is not permissible to add or subtract

anything. It was observed:

"10. It is, therefore, manifestly clear that proceedings

of
against an accused in the initial stages can be quashed
only if on the face of the complaint or the papers
accompanying the same, no offence is constituted. In
rt
other words, the test is that taking the allegations and the
complaint as they are, without adding or subtracting

anything, if no offence is made out then the High Court
will be justified in quashing the proceedings in exercise of
its powers under Section 482 of the present Code."

21. Madras High Court also held in Ganga Bai v. Shriram,

1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018, that

the fresh evidence is not permissible or desirable in the

proceeding under Section 482 of Cr.P.C. It was observed:

"Proceedings under Section 482, Cr.P.C. cannot be

allowed to be converted into a full-dressed trial. Shri
Maheshwari filed a photostate copy of an order dated
28.7.1983, passed in Criminal Case No. 1005 of 1977, to
which the present petitioner was not a party. Fresh
evidence at this stage is neither permissible nor desirable. The
respondent by filing this document is virtually introducing
additional evidence, which is not the object of Section 482,
Cr.P.C."

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23

22. Andhra Pradesh High Court also took a similar view

in Bharat Metal Box Company Limited, Hyderabad and Others vs. G.

.
K. Strips Private Limited and another, 2004 STPL 43 AP, and held:

"9. This Court can only look into the complaint and the

documents filed along with it and the sworn statements
of the witnesses if any recorded. While judging the
correctness of the proceedings, it cannot look into the

of
documents, which are not filed before the lower Court.
Section 482 Cr.PC debars the Court to look into fresh
documents, in view of the principles laid down by the
Supreme Court in State of Karnataka v. M. Devendrappa
rt
and another, 2002 (1) Supreme 192. The relevant portion of
the said judgment reads as follows:

"The complaint has to be read as a whole. If it appears
that on consideration of the allegations, in the light of
the statement made on oath of the complainant that the
ingredients of the offence or offences are disclosed and

there is no material to show that the complaint is mala
fide, frivolous or vexatious, in that event there would be
no justification for interference by the High Court. When

information is lodged at the Police Station and an
offence is registered, then the mala fides of the

informant would be of secondary importance. It is the
material collected during the investigation and evidence

led in Court, which decides the fate of the accused
person. The allegations of mala fides against the
informant are of no consequence and cannot by itself be
the basis for quashing the proceedings".

23. A similar view was taken in Mahendra K.C. v. State of

Karnataka, (2022) 2 SCC 129: (2022) 1 SCC (Cri) 401 wherein it was

observed at page 142:

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24

"16. ... the test to be applied is whether the allegations in
the complaint as they stand, without adding or detracting
from the complaint, prima facie establish the ingredients

.
of the offence alleged. At this stage, the High Court

cannot test the veracity of the allegations nor for that
matter can it proceed in the manner that a judge
conducting a trial would, on the basis of the evidence

collected during the course of the trial."

24. This position was reiterated in Supriya Jain v. State of

of
Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765wherein it was

held:
rt
13. All these documents which the petitioner seeks to rely
on, if genuine, could be helpful for her defence at the trial

but the same are not material at the stage of deciding
whether quashing as prayed for by her before the High
Court was warranted or not. We, therefore, see no reason
to place any reliance on these three documents.

25. A similar view was taken in Iveco Magirus

Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, 2023 SCC

OnLine SC 1258 wherein it was observed:

55. Adverting to the aspect of the exercise of jurisdiction

by the High Courts under section 482, Cr. P.C., in a case
where the offence of defamation is claimed by the accused
to have not been committed based on any of the
Exceptions and a prayer for quashing, is made, the law
seems to be well settled that the High Courts can go no
further and enlarge the scope of inquiry if the accused seeks
to rely on materials which were not there before the
Magistrate. This is based on the simple proposition that what
the Magistrate could not do, the High Courts may not do. We
may not be understood to undermine the High Courts'
powers saved by section 482, Cr. P.C.; such powers are

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25

always available to be exercised ex debito justitiae, i.e., to
do real and substantial justice for the administration of
which alone the High Courts exist. However, the tests laid

.
down for quashing an F.I.R. or criminal proceedings

arising from a police report by the High Courts in the
exercise of jurisdiction under section 482, Cr. P.C. not
being substantially different from the tests laid down for

quashing of a process issued under section 204 read with
section 200, the High Courts on recording due
satisfaction are empowered to interfere if on a reading of

of
the complaint, the substance of statements on oath of the
complainant and the witness, if any, and documentary
evidence as produced, no offence is made out and that
proceedings, if allowed to continue, would amount to an
rt
abuse of the legal process. This too, would be
impermissible if the justice of a given case does not

overwhelmingly so demand." (Emphasis supplied)

26. Therefore, it is not permissible to look into the

material filed by the parties and the case is to be decided as per

the allegations made in the FIR.

27. It has been asserted in the FIR that the property was

inherited by the informant's father from his father and he could

not have executed a sale deed without the consent of the legal

heirs. This submission is not acceptable. The succession

amongst the Christians is governed by the Indian Succession Act

and there is no concept of ancestral property. It was laid down in

Jujjavarapu Yesurao v. Nadakuduru Kamala Kumar, 2007 SCC

OnLine AP 353 : (2007) 5 ALD 140 : (2008) 61 AIC 640 : (2007) 58

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26

AIC (Sum 14) 6 : (2007) 6 ALT 249 that principles of Hindu Law

cannot be applied to Muslim, Parsi, Christian or Jew even if such

.
principles were being followed earlier. It was observed:

"17. Applying the above principle and having regard to

the main part of the section regarding applicability,
inclusionary part and exclusionary part, there cannot be
any doubt that whether or not Hindu Law governed or

of
applied prior to 1956, a Muslim, Christian, Parsi or Jew,
after coming into force of Hindu Succession Act, 1956,
cannot be governed by Succession Act nor persons who
admit that they are Christian by religion can plead before
rt
a common law Court that they are governed by Hindu Law
in matters of partition of joint family property. There

cannot be two opinions that the peculiar concept of Joint
Hindu Family, coparcenary and doctrine of blending etc.,
are very unique to Hindu Law. These cannot be made
applicable to Christians, Muslims or Parsis or Jews to

whom the Succession Act has no application nor Hindu
Law has any application as observed by Mulla, whose
elucidation is noticed supra. It is axiomatic that the

evidence let in before the trial Court -- both oral and
documentary -- and considered by the Courts below

cannot be reconsidered by the Court of the second appeal.
Nonetheless, a cursory look at the plaint, evidence of P.W.
1, Ex. B.3, gift deed executed by his mother in favour of

the first defendant, Ex. B.2, sale deed by defendants 1 to 3
in favour of Brahmaiah, husband of Victoria would show
that they themselves described as Christians. The
submission of the learned Counsel for the plaintiff is that
they are Harizans claiming themselves as Christians
without baptism and therefore, the Hindu Law of
succession should be applied to them. The argument is
liable to be rejected. There cannot be any better evidence
than an unexplained admission of a party to the
proceedings in a suit. The plaintiff admitted that they are
Christians and indeed described the defendants as

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27

Christians. Therefore, the plaintiff is not entitled to a
decree of partition, as per Hindu Law."

28. Therefore, it is not acceptable that the informant's

father was not competent to execute the sale deed without the

consent of the legal heirs of the informant's grandfather as the

property was ancestral.

of
29. The FIR further mentions that an amount of ₹1.18

crore was transferred in the name of Daljeet Singh without any
rt
consideration. The FIR does not mention that this was done

based on the forged document. Although an attempt was made

by the police during the investigation to establish so. Even if the

amount was transferred by the informant's father during his

lifetime without any consideration, it will not constitute a

criminal offence.

30. It is undisputed that the informant had filed an FIR

No. 45 of 2017 against her father. This fact was not disputed by

any of the parties. Since this is an undisputed document and was

also relied upon by the police, therefore, the same can be taken

into consideration. The informant had made allegations against

her father in the previous FIR that he was selling the property.

She informed her aunt's sister and cousins about the sale. It was

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28

found that the informant's father had got the property mutated

by way of some Will and this was forged. He had sold a major

.
portion of the land to Baldev Thakur. Thus, the fact that the

informant's father had sold the property to Baldev Thakur

during his lifetime was also the subject matter of the previous

FIR. Admittedly, the police had filed a cancellation report in the

of
previous FIR which was accepted by the competent Court of law.

Hence, the execution of the sale deed by her father is not in
rt
dispute whether it was executed under some influence or not is

not the subject matter of the Criminal Courts.

31. It was submitted that the sale deed is shown to have

been executed for an amount of ₹3.9 crores and there was no

evidence of the payment of the sale consideration. The account

of the informant's father does not show any deposit of this huge

amount which clearly shows that the sale deed was without

consideration. Even if it is accepted as correct that no sale

consideration had passed, the informant being a third party is

not entitled to raise this objection. It was laid down by the

Judicial Committee of the Privy Council more than 100 years ago

in Lal Achal Ram Vs. Raja Kazim Husain Khan (1904-1905) 32 Law

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29

Report Indian Appeal 113 that a stranger to a contract cannot take

a plea regarding the absence of consideration. It was observed:-

The statement in the saledeed to the effect that one lakh
had been paid to Ardawan was not in accordance with the
fact. Indeed, it seems inconsistent with the scope of the

deed. It is hardly conceivable that anybody in the position
of the Raja would pay down without any security so large
a sum to a man confessedly without means. And besides,

of
it is obvious that if it had been intended that Ardawan
should receive a lakh of rupees at once, there would have
been no occasion to provide a monthly allowance for his "
personal expenses.'' Probably the statement was
rt
introduced by the draftsman under the notion that it
might impart some additional solemnity to the

instrument. Of course, at first blush, the untrue
statement throws suspicion upon the whole transaction.
After all, so long as the deed stands, it is no concern of Achal
Ram's that Ardawan may have a grievance on the score of a

misstatement in an instrument to which Achal Ram is no
party. Ardawan himself has taken no steps to impeach the
deed. On the contrary, in the course of the two years that

elapsed between the date of the deed and the institution
of the suit (which was delayed as long as possible in order

to await the result of Narendra's appeal) Ardawan more
than once affirmed the transaction, claiming and

receiving his monthly allowance under the deed and
urging Raja's agent to commence proceedings without
delay. (Emphasis supplied)

32. It was laid down in Appu versus Bhaskaran 2002 (1)

CivCC 173, that the payment of consideration is not a necessary

condition for the execution of the sale deed. It was observed:-

"[11] Section 54 of the Transfer of Property Act defines
sale as follows:

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30

"Sale is a transfer of ownership in exchange for a price
paid or promised or part-paid and part-promised".
From the above definition of sale in the T.P. Act it is clear

.
that transfer of ownership can be in exchange for a price

paid or promised or part paid and part promised. Hence
passing of the consideration is not a prerequisite or
condition precedent for the sale or transfer or ownership

or immovable property.
[12] In the book Transfer of Property Act 9thEdition, the
learned Author H.S. Gour has observed at page 592 as

of
follows:
"Now, the general law is that title passes on the
execution and registration of sale-deed though the
rt
purchase money may remain wholly or partly unpaid,
except where there is an agreement that the sale should

take effect only if the consideration is first paid".
[13] The learned Author Mulla, in his book Transfer of
Property Act, 8thEdition, at page 368 has observed as
follows:

"The answer to the question whether the transferor
intends to transfer ownership by mere execution or

registration or whether he intends to do only after
receipt of consideration would depend on the intention

of the parties. The intention is primarily to be
determined from the recitals of the sale deed. It is only
when the recitals are ambiguous that extraneous

evidence is admissible."
[14] In the decision reported in Kemta Prasad v. Lachmi
Sah (AIR 1929 Patna, 550), a Division Bench of the Patna
High Court has held as follows:
"A sale once registered passes title unless it is
established to the satisfaction of the Court that the
intention of the parties was that title should not pass
until the payment of consideration".
[15] In the decision reported in State of Kerala v. Cochin
Chemical Refineries Ltd. (AIR 1968 SC 1361), the Supreme

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31

Court has observed as follows:
"A transaction of mortgage formally executed does not
become void or ineffective merely because the mortgagee

.
fails to advance the amount of money undertakes to be

advanced by him. If without advancing the amount
agreed to be advanced, he sues on the title created under
the deed or mortgage, the court will not award him a

decree for anything more than what he has advanced.
But that is not to say that the mortgage is invalid".
Though the Supreme Court made the above observations

of
in respect of mortgages the same principle is applicable
to sale also.
[16] In the decision reported in Narayan Moopil v.
rt
Narayanan Prabhakaran (1993 (1) KLT 41), a Single Judge
of this Court has observed as follows:-

"The contention of the learned counsel for the appellant
that once the price of the property which is the subject
matter of a registered sale deed is shown to have been
not paid, the document would become void, cannot be

accepted. A conveyance by a registered deed cannot be
placed in the same category as agreements void for want
of consideration. If the price of the property which is the

subject matter of a registered sale deed is not paid, the

vendor cannot on that account get the sale deed avoided.
All that he can do in such circumstance is only to sue for
the purchase price and that amount will get a charge on

the property as unpaid purchase money under Section
55(4)(b) of the Transfer of Property Act".
[17] In the decision reported in Vidhyadhar v. Manikikrao
(AIR 1999 SC 1441), the Supreme Court has observed as
follows:
35. The definition indicates that in order to constitute a
sale, there must be a transfer of ownership from one
person to another, i.e., transfer of all rights and interest
in the properties which are possessed by that person are
transferred by him to another person. The transferor
cannot retain any part of his interest or right in that

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32

property or else it would not be a sale. The definition
further says that the transfer of ownership has to be for a
"price paid or promised or part-paid and part-

.
promised". Price thus constitutes an essential ingredient

of the transaction of sale. The words "price paid or
promised or part-paid and part-promised" indicate the
actual payment of the whole of the price at the time of

the execution of the sale deed is not a sine qua non to the
completion of the sale. Even if the whole of the price is
not paid but the document is executed and thereafter

of
registered if the property is of the value of more than Rs.
100/- the sale would be complete".
[18] Therefore, it is clear that on the basis of the mere
contention of the respondent that the consideration for
rt
Ext. A1 is not passed from the appellant to the respondent
it cannot be held that the registered assignment deed Ext.

A1 is void or ineffective.
[19] At page 367 of the 8th Edition of the book, Transfer
of Property Act, the learned Author Mulla has observed as

follows:
"On the other hand, it does not follow that property
passes as soon as the instrument is registered for the true

test is the intention of the parties(v). Registration is
prima facie proof of an intention to transfer but it is no

proof of an operative transfer if there is a condition
precedent (Which must be strictly proved) as to payment
for consideration or delivery of the deed. Thus the seller

may retain the deed pending payment of the price and in
that case, there is no transfer until the price is paid and
the deed delivered. The words "price paid or promised,"
in the definition show that the payment of the price is not
necessarily a sine qua non to the completion of the sale".

33. Therefore, even if the sale deed was without

consideration, the same will not make it bad.

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33

34. It was asserted that the sale deed is a forged

document. The term forgery has been defined in Section 463 of

.
IPC as under:

"463. Forgery.--Whoever makes any false documents or

electronic record part of a document or electronic record
with, intent to cause damage or injury], to the public or
any person, or to support any claim or title, or to cause

of
any person to part with property, or to enter into any
express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits forgery."

35. It is apparent from the definition that a person has to
rt
make a false document before he can be said to have committed

forgery. Making a false document is defined in section 464 of

IPC. It reads as under:

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 electronic signature on any
electronic record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that such
document or part of a document, electronic record
or electronic signature was made, signed, sealed,

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34

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 electronic signature either by himself or by any
other person, whether such person be living or dead at
the time of such alteration; or

of
Thirdly.--Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or an
electronic record or to affix his electronic signature on
rt
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.

36. It was laid down by the Hon'ble Supreme Court in

Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that

the prosecution is required to prove that the accused had forged

a document by creating a false document to establish the offence

of forgery. A false document is when a document is executed

claiming to be executed by someone else or authorised by

someone else or a document is tampered or signatures are

obtained by practising deception. It was observed:-

"[10] An analysis of section 464 of the Penal Code shows
that it divides false documents into three categories:
10.1) The first is where a person dishonestly or
fraudulently makes or executes a document with

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35

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.
10.2) 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.

of
10.3) The third is where a person dishonestly or
fraudulently causes any person to sign, execute or
alter a document knowing that such person could
rt
not because 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.
[11] 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 authorised by
someone else; or (ii) he altered or tampered with a
document; or (iii) he obtained a document by

practising deception, or from a person not in
control of his senses."

37. In the cited case, the prosecution alleged that the

accused had executed a sale deed regarding the property over

which he had no right. It was held by the Hon'ble Supreme Court

that there is a distinction between a document whose contents

are false and a document which is itself false within the

definition of Section 464 of IPC. A document containing false

averment does not attract the provision of Criminal Law and the

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36

accused cannot be held liable for executing the sale deed by

claiming to be the owner when he was not the owner. It was

.
observed:-

"[12] The sale deeds executed by the first appellant,

clearly and obviously do not fall under the second and
third categories of 'false documents'. It, therefore,
remains to be seen whether the claim of the complainant

of
that the execution of sale deeds by the first accused, who
was in no way connected with the land, amounted to
committing forgery of the documents with the intention
of taking possession of complainant's land (and that
rt
accused 2 to 5 as the purchaser, witness, scribe and stamp
vendor colluded with first accused in execution and

registration of the said sale deeds) would bring the case
under the first category. 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 the 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 bonafide 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 the 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.
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

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37

someone else. Therefore, execution of such a document
(purporting to convey some property of which he is not
the owner) is not an 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 is attracted".

38. In Mir Nagvi Askari Vs CBI 2009 (15) SCC 643 the

accused was charged with making false entries in the record of

of
the bank. It was laid down by the Hon'ble Supreme Court that

making wrong entries by itself will not attract criminal liability
rt
unless it is proved that the document was false within the

meaning of Section 464 of IPC. It was observed:-

"[229] A person is said to make a false document or

record if he satisfies one of the three conditions as
noticed hereinbefore and provided for under the said
section. The first condition being that the document has

been falsified with the intention of causing it to be
believed that such document has been made by a person,

by whom the person falsifying the document knows that
it was not made. Clearly, the documents in question in the
present case, even if it be assumed to have been made

dishonestly or fraudulently, had not been made with the
intention of causing it to be believed that they were made
by or under the authority of someone else.
[230] The second criterion of the section deals with a case
where a person without lawful authority alters a
document after it has been made. There has been no
allegation of alteration of the voucher in question after
they have been made. Therefore in our opinion, the
second criterion of the said section is also not applicable
to the present case.

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38

[231] The third and final condition of Section 464 deals
with a document, signed by a person who due to his
mental capacity does not know the contents of the

.
documents which were made i.e because of intoxication

or unsoundness of mind etc. Such is also not the case
before us. Indisputably therefore the accused before us
could not have been convicted for the making of a false

document.
[232] The learned Special Judge, therefore, in our
opinion, erred in holding that the accused had prepared a

of
false document, which clearly, having regard to the
provisions of the law, could not have been done.
[233] Further, the offence of forgery deals with the
rt
making of a false document with the specific intentions
enumerated therein. The said section has been
reproduced below.

"463. Forgery.--Whoever makes any false
documents or electronic record part of a document
or electronic record with, intent to cause damage or

injury], to the public or any person, or to support
any claim or title, or to cause any person to part
with property, or to enter into any express or

implied contract, or with intent to commit fraud or
that fraud may be committed, commits forgery."

[234] However, since we have already held that the
commission of the said offence has not been convincingly

established, the accused could not have been convicted for
the offence of forgery. The definition of "false document"
is a part of the definition of "forgery". Both must be read
together. [Dr. Vimla v. Delhi Administration, 1963 Supp2 SCR
585]".

39. It was further held that in the absence of the

document being forged a person cannot be convicted of the

commission of an offence punishable under Section 471 of IPC. It

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39

was observed:-

"[235] Accordingly, the accused could not have been tried

.
for an offence under Section 467 which deals with forgery

of valuable securities, will etc. or Section 471, i.e., using as
genuine a forged document or Section 477-A, i.e,
falsification of accounts. The conviction of the accused

for the said offences is accordingly set aside".

40. This question was also considered in Sheila Sebastian

of
versus R Jawaharaj & Anr ETC. 2018 (7) SCC 581 and it was held

that unless the ingredients of Section 464 of IPC are satisfied a
rt
person cannot be convicted of the commission of an offence

punishable under Section 465 of IPC. It was observed:-

"[26] The definition of "false document" is a part of the
definition of "forgery". Both must be read together.

'Forgery' and 'Fraud' are essentially matters of evidence
which could be proved as a fact by direct evidence or by
inferences drawn from proved facts. In the case at hand,

there is no finding recorded by the trial Court that the
respondents have made any false document or part of the

document/record to execute the mortgage deed under the
guise of that 'false document'. Hence, neither respondent

no.1 nor respondent no.2 can be held as makers of the
forged documents. It is the imposter who can be said to
have made the false document by committing forgery. In
such an event the trial court, as well as the appellate
court, misguided themselves by convicting the accused.
Therefore, the High Court has rightly acquitted the
accused based on the settled legal position and we find no
reason to interfere with the same".

41. In the present case, there is no allegation that the

document was executed in the name of the informant's father or

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40

it was altered after it had been executed or the informant's

father was suffering from unsoundness of mind or he was

.
intoxicated or any deception was practised upon him. An FIR

was lodged against him during his time admitting that he had

executed the sale deed; hence, the necessary ingredients for the

commission of the offence of forgery have not been established.

of
42. The police have also registered the FIR for the
rt
commission of an offence punishable under Section 420 of IPC.

The ingredients of cheating were explained by the Hon'ble

Supreme Court in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC

241as under:

"10. The ingredients of an offence of cheating are: (i)

there should be fraudulent or dishonest inducement of a
person by deceiving him, (ii)(a) the person so deceived

should be induced to deliver any property to any person
or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally

induced to do or omit to do anything which he would not
do or omit if he were not so deceived; and (iii) in cases
covered by (ii)(b), the act of omission should be one
which causes or is likely to cause damage or harm to the
person induced in body, mind, reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench,
in HridayaRanjan Prasad Verma v. State of Bihar [(2000) 4
SCC 168: 2000 SCC (Cri) 786] on facts of that case, has
expressed thus: (SCC p. 177, para 15)

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41

"15. In determining the question it has to be kept in
mind that the distinction between mere breach of
contract and the offence of cheating is a fine one. It

.
depends upon the intention of the accused at the

time of inducement which may be judged by his
subsequent conduct but for this subsequent
conduct is not the sole test. Mere breach of contract

cannot give rise to criminal prosecution for
cheating unless fraudulent or dishonest intention is
shown right at the beginning of the transaction,

of
that is the time when the offence is said to have
been committed. Therefore it is the intention which
is the gist of the offence. To hold a person guilty of
rt
cheating it is necessary to show that he had fraudulent
or dishonest intention at the time of making the

promise. From his mere failure to keep up promise
subsequently such a culpable intention right at the
beginning, that is, when he made the promise cannot
be presumed."

(emphasis supplied)
12. Finding that the ingredients of the offence of cheating

and its allied offences had not been made out, this Court
interfered with the order of the High Court and quashed

the criminal proceedings.
13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC

(Cri) 733] this Court in para 7 has stated thus: (SCC pp.
696-97)
"7. As mentioned above, Section 415 has two parts.
While in the first part, the person must
'dishonestly' or 'fraudulently' induce the
complainant to deliver any property; in the second
part, the person should intentionally induce the
complainant to do or omit to do a thing. That is to
say, in the first part, inducement must be dishonest
or fraudulent. In the second part, the inducement
should be intentional. As observed by this Court

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42

in JaswantraiManilalAkhaney v. State of Bombay [AIR
1956 SC 575: 1956 Cri LJ 1116] a guilty intention is an
essential ingredient of the offence of cheating. In

.
order, therefore, to secure the conviction of a

person for the offence of cheating, 'mens rea' on the
part of that person, must be established. It was also
observed in Mahadeo Prasad v. State of W.B. [AIR

1954 SC 724: 1954 Cri LJ 1806] that in order to
constitute the offence of cheating, the intention to
deceive should be in existence at the time when the

of
inducement was offered."
(emphasis supplied)
14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8
rt
SCC 686: 2000 SCC (Cri) 47] dealing with the effect of
existence of arbitration clause in the agreement on

criminal prosecution on the ground that civil proceedings
are also maintainable, this Court has held that quashing
of FIR or a complaint exercising power under Section 482

CrPC should be limited to a very extreme exception;
merely because an act has a civil profile is not enough to
stop action on the criminal side. It is further held that a

provision made in the agreement for referring the
disputes to arbitration is not an effective substitute for a

criminal prosecution when the disputed act constitutes a
criminal offence.
43. A similar view was taken in G.V. Rao v. L.H.V. Prasad,

(2000) 3 SCC 693 as under:

"4. "Cheating" is defined in Section 415 of the Penal
Code, 1860 which provides as under:
"415. Cheating.--Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any person shall retain any property,
or intentionally induces the person so deceived to

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43

do or omit to do anything which he would not do or
omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or

.
harm to that person in body, mind, reputation or

property, is said to 'cheat'.
Explanation.--A dishonest concealment of facts is a

deception within the meaning of this section."
5. The High Court quashed the proceedings principally on
the ground that Chapter XVII of the Penal Code, 1860

of
deals with the offences against properties and, therefore,
Section 415 must also necessarily relate to the property
which, in the instant case, is not involved and,
consequently, the FIR was liable to be quashed. The broad
rt
proposition on which the High Court proceeded is not
correct. While the first part of the definition relates to

property, the second part does not necessarily relate to
property. The second part is reproduced below:
"415. ... intentionally induces the person so

deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause

damage or harm to that person in body, mind,
reputation or property, is said to 'cheat'."

6. This part speaks of intentional deception which must
be intended not only to induce the person deceived to do

or omit to do something but also to cause damage or
harm to that person in body, mind, reputation or
property. The intentional deception presupposes the
existence of a dominant motive of the person making the
inducement. Such inducement should have led the person
deceived or induced to do or omit to do anything which he
would not have done or omitted to do if he were not
deceived. The further requirement is that such an act or
omission should have caused damage or harm to body,
mind, reputation or property.

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44

7. As mentioned above, Section 415 has two parts. While
in the first part, the person must "dishonestly" or
"fraudulently" induce the complainant to deliver any

.
property; in the second part, the person should

intentionally induce the complainant to do or omit to do a
thing. That is to say, in the first part, inducement must be
dishonest or fraudulent. In the second part, the

inducement should be intentional. As observed by this
Court in Jaswantrai Manilal Akhaney v. State of Bombay
[AIR 1956 SC 575: 1956 Cri LJ 1116: 1956 SCR 483] a guilty

of
intention is an essential ingredient of the offence of
cheating. In order, therefore, to secure the conviction of a
person for the offence of cheating, "mens rea" on the part
rt
of that person, must be established. It was also observed
in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954

Cri LJ 1806] that in order to constitute the offence of
cheating, the intention to deceive should be in existence
at the time when the inducement was offered.
8. Thus, so far as the second part of Section 415 is

concerned, "property", at no stage, is involved. Here it is
the doing of an act or omission to do an act by the
complainant, as a result of intentional inducement by the

accused, which is material. Such inducement should

result in the doing of an act or omission to do an act as a
result of which the person concerned should have
suffered or was likely to suffer damage or harm in body,

mind, reputation or property. In an old decision of the
Allahabad High Court in Empress v. Sheoram [(1882) 2
AWN 237], it was held by Mahmood, J.:

"That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section 415."

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44. In the present case, there is no averment in the FIR that any misrepresentation was made to any person or any .

person was induced to deliver any property which he would not have done but for the misrepresentation practised upon him.

The informant was admittedly not present at the time of the transaction between her father and the petitioners, therefore, of she is incompetent to say that any misrepresentation was made to her father. She had admitted in the previous FIR that her rt father had executed the sale deed of the property but she had complained that this was done without the consent of the other legal heirs and the property was ancestral. Thus, the necessary ingredients for establishing the cheating are also not made out.

45. It was stated in the FIR that the marriage between petitioner No.3 and the informant's father was not proper. Again this is a question between petitioner No. 3 and the informant's father. Admittedly, the informant was not present at the time of the marriage and therefore, she cannot have any personal knowledge whether the marriage was solemnized or not.

46. In the present case, the FIR has been lodged on the basis of the speculations. The informant admitted that her ::: Downloaded on - 08/01/2024 20:37:14 :::CIS 46 father cut off her relationship with his family members in the year 2017. She had even filed a complaint against her father in .

the year 2017. Thereafter, she filed the present complaint in the year 2022 based upon the apprehension, speculations and presumptions. These are not sufficient to disclose the commission of a cognizable offence. The continuation of the of investigation will amount to abuse of the process of law and cannot be permitted.

47. Mr. Prashant Sen, learned Deputy Advocate General submitted that it was found during the investigation that there was evasion of stamp duty. However, there is nothing on record to show that the Collector or the Inspector General of Registration has raised any objection regarding the evasion of the stamp duty. The FIR does not mention anything about the evasion of the stamp duty. Therefore, it is not necessary to say anything about the same as the State has every right to take proceedings for the evasion. It is doubtful that the police can investigate this aspect in view of Section 70 of the Indian Stamp Act.

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48. The police have added Section 120-B of IPC; however, there is no evidence that the petitioners have done any illegal act .

which constitutes an offence or is prohibited by law. Therefore, the ingredients in the FIR do not satisfy the requirements of Section 120-B of IPC.

49. It was submitted that the informant was in touch of with her father and the burial of the deceased was not proper.

rt Reference was made to the email and the photographs in support of this submission. As already stated, the Court is only to see the FIR and the material collected during the investigation. It is impermissible to add or subtract anything.

Further, the informant herself admitted that the deceased had broken all the contacts with his family members; hence, the previous communication will be immaterial. Even if the burial was not as per the religious belief, the same is not the subject matter of the FIR. Hence, no advantage can be derived from these submissions.

50. Therefore, the contents of the FIR even if accepted as correct do not amount to the commission of any offence.

Consequently, the present petition is allowed and FIR No. 8 of ::: Downloaded on - 08/01/2024 20:37:14 :::CIS 48 2022, dated 26.8.2022, under Sections 420, 465, 467, 468, 471 and 120-B of IPC, registered at Police Station CID, Shimla, .

District Shimla, H.P. and the consequent proceedings arising out of the same are ordered to be quashed.

(Rakesh Kainthla) Judge 8th January, 2024 of (Chander) rt ::: Downloaded on - 08/01/2024 20:37:14 :::CIS

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Himachal Pradesh High Court

Baldev Thakur And Others vs State Of H.P. And Another on 8 January, 2024