Madhya Pradesh High Court
Gajraj Singh vs State Of M.P. on 30 January, 2017
1
MCRC.8475/2011
Gajraj Singh & ors.
v.
State of M.P & anr.
30/01/2017
Shri Ankur Maheshwari, counsel for the applicants.
Shri Girdhari Singh Chauhan, Public Prosecutor for
the respondent no.1/State.
Shri Manas Dubey, counsel for the respondent no.2./complainant.
This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.382/2011 registered by Police Station Kotwali, District Morena for offences punishable under Sections 420,467,468,471 and 120-B of IPC.
The necessary facts for the disposal of the present application are that a complaint was made by the complainant Ashok Kumar Gupta to the effect that he alongwith other twelve applicants are in possession of land in dispute and they are residing in their residential houses constructed over the said land. It was alleged that they are residing in Gopinath Ki Puliya, Dattpura, Morena for the last 70-80 years and they are having personal ancestral house. It was further alleged that the applicants are also having their sale deeds in their favour. There are relevant entries in the record of Municipal Council and the Government offices and they are making payment of property tax, water tax, electricity charges etc. regularly. With an intention to adversely effect the title of the complainant, the land, on which their houses have been constructed, was shown as agricultural land and the applicants have sold the said 2 MCRC.8475/2011 land by sale deed dated 23/11/2010 and the names of the purchasers have also been mutated in the revenue record. Thus, a complaint was made that the residential property as well as life and liberty of the complainants may be protected. On these allegations, the FIR was lodged against the applicants.
It is contended by the counsel for the applicants that even assuming that the entire allegations, as made in the FIR, are correct, then no offences punishable under Sections 420,467,468,471 r/w Section 120-B of IPC are made out. It is contended by the counsel for the applicants that in order to make out a case for offences punishable under Sections 467,468 and 471 of IPC, the prosecution must prove that a forgery has been committed. There is no allegation that any false document has been prepared or any forgery has been committed. It is further submitted that the core question is that whether the applicants are the owner of the land in dispute or whether the complainants are the owner of the land in dispute. It is submitted by the counsel for the applicants that the name of their grand father was recorded in the revenue records and, in fact, it was the agricultural land and there is nothing on record to show that the complainants were residing there. It is further submitted that even if the entire allegations are accepted, then it would be a case which can be said to be predominantly of civil in nature and, therefore, if so warranted, the complainants may file a suit for declaration of title and permanent injunction. In fact, the 3 MCRC.8475/2011 FIR has been lodged in order to avoid the civil proceedings. The title of a party can be adjudicated upon by the Civil Court only and it cannot be decided in criminal proceedings. Since both the parties are claiming their title over the land in question, therefore, in such situation, civil suit is the only remedy and the complainants should not be allowed to convert the dispute of civil nature into a criminal case.
Per contra, the counsel for the respondents submitted that that land belongs to the complainants and the applicants, by executing a sale deed, have sold the said land and, therefore, they have committed the offences punishable under Sections 420,467,468 and 471 r/w Section 120-B of IPC.
Heard the learned counsel for the parties. Forged document has been defined under Section 470 of IPC which reads as under:-
"470. Forged [document or electronic record]. - A false [document or electronic record] made wholly or in part by forgery is designated "a forged [document or electronic record]".
In Section 470 of IPC, the word forgery has been used which has been defined under Section 463 of IPC.
According to the definition of forgery, it is clear that whoever makes a 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 the property or to enter into express or implied contract or with intent to commit fraud or when the fraud may be committed, can be said to have committed 4 MCRC.8475/2011 forgery.
False document has been defined under Section 464 of IPC which 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 fradulently--
(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 document, electronic record or [electronic 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 [electronic 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 [electronic 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 5 MCRC.8475/2011 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.
Explanation 3.-- For the purposes of this section, the expression "affixing [electronic signature]" shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000.] Thus, it is clear that in order to attract the provisions of Sections 467 and 471 of IPC, forgery is the basic ingredient and in order to commit forgery, making of a false document is essential. Therefore, now the only question is that by executing the sale deed whether the applicants have committed any offence punishable under Sections 467 and 471 of IPC.
As it is no body's case that the sale deed executed by the applicants is not genuine, therefore, the sale deed executed by the applicants cannot be placed in the category of false documents. When the document is executed by a person claiming a property which does not belong to him, then it cannot be said that he had imposed/impersonated some other, therefore, execution of such a document, even without authority, cannot be said to be a making of false evidence.
So far as the offence of cheating is concerned, if a person, who is not the owner of the property, has sold the said property, then the bonafide purchaser can be said to have been cheated but in the present case, the 6 MCRC.8475/2011 complaint has not been filed by the purchaser, in fact it appears that he is the co-accused.
The complainants cannot be said to have been cheated by forgery, therefore, no offence under Section 468 of IPC can be said to have been made out.
The Supreme Court in the case of Mohammed Ibrahim & Ors. v. State of Bihar & anr. reported in (2009) 8 SCC 751 has held as under:-
"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 7 MCRC.8475/2011 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 alternation; 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 it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]."
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 Penal Code shows that it divides false documents into three categories:
8 MCRC.8475/20111. 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 authorised 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.
15. The sale deeds executed by 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 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 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.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his 9 MCRC.8475/2011 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 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 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.
17. 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.
Section 420 IPC
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 10 MCRC.8475/2011 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 a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale 11 MCRC.8475/2011 deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code." Thus, considering the facts and circumstances of the case, it appears that the complainant as well as the applicants are claiming ownership over the land in dispute. Thus, the sale deed executed by the applicants in favour of the purchaser cannot be said that a false document has been prepared.
Further, at the most, it is for the purchaser to make a complaint that he has been cheated by selling a land which does not belong to the seller but in the present case, the purchaser has been made as a co-accused and the complaint has been made by the persons who are claiming to be in possession of the land in dispute.
Under these circumstances, it is clear that the basic dispute is with regard to the ownership over the land. The Criminal Court cannot decide the ownership. If two persons are claiming ownership over the same property, then the matter has to be decided by the Civil Court.
Accordingly, it is held that as the purchaser has not made a complaint that he has been cheated by the applicants by misrepresenting to him that the applicants are owners of the property in dispute and since he too has been made a co-accused and, therefore, under the facts and circumstances of the case, it cannot be said that the applicants, by executing the sale deed in favour of the purchaser, as contained in the FIR, have 12 MCRC.8475/2011 committed offence punishable under Section 420 of IPC, as it is nobodies case that any false document has been prepared.
Forgery is the basic ingredient for registering an offence punishable under Sections 467,471 of IPC. Forgery means preparation of a false document. When the prosecution has failed to prima facie establish that any false document has been created in the shape of sale deed, then it cannot be said that the applicants have committed the offence of forgery. Therefore, prima facie, it is clear that no offence punishable under Sections 467,471 of IPC is made out.
Similarly, when this Court has already come to a conclusion that the offence of cheating has not been committed with the complainants, then there is no question of committing the offence punishable under Section 468 of IPC which makes the act of forgery for the purpose of cheating as an offence.
Under the facts and circumstances of the case, this Court is of the view that even if the entire allegations are accepted, then no offence would be made out against the applicants.
The Supreme Court in the case of State of Haryana v. Bhajan Lal reported in AIR 1992 SC 604 has held as under:-
"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 13 MCRC.8475/2011 Code which we have extracted and reproduced above, we give the following 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 formulate 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 at their face value and accepted in their entirety do not prima facie constitute any offence or make out a 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. 7 MCRC No. 12804 of 2016 (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 (under which a criminal 14 MCRC.8475/2011 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."
Even otherwise the allegations made discloses that the dispute is of civil in nature and no one can be allowed to convert the civil remedy into a criminal remedy. No one can be allowed to adopt a shortcut move for redressal of his grievances.
Under these circumstances, this Court is of the considered opinion that even accepting the entire allegations, no offence punishable under Sections 420,467,468,471 r/w Section 120-B of IPC is made out.
As by order dated 28/11/2011, this Court had stayed the operation of further proceedings of FIR, therefore, it is clear that no further proceedings must have been taken so far.
Accordingly, this petition succeeds and is hereby allowed.
The FIR in Crime No.382/2011 is hereby quashed.
(G.S.Ahluwalia)
AKS Judge