Allahabad High Court
Rakesh vs State Of U.P. And Another on 9 January, 2014
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 AFR Case :- APPLICATION U/S 482 No. - 12719 of 2013 Applicant :- Rakesh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shishir Tandon Counsel for Opposite Party :- Govt. Advocate, Dinesh Kumar, Sanjay Kumar Dwivedi Hon'ble Manoj Misra,J.
Heard Sri Shishir Tandon, learned counsel for the applicant, Sri Vikas Ojha holding brief of Sri Sanjay Kumar Dwivedi for opposite party no.2 and the learned AGA for the State.
By the present application, the applicant has sought for quashing of the summoning order dated 4th March, 2013, passed by Judicial Magistrate, Chhata, district Mathura in criminal complaint case no.27/IX of 2013, under Sections 420, 467 and 468 IPC, relating to police station Kosikala, district Mathura, whereby the applicant has been summoned under Sections 420, 467 and 468 IPC. The applicant has also prayed for quashing of further proceedings as against him in the aforesaid criminal complaint.
A perusal of the record reveals that the allegation in the complaint is that the complainant's father and uncle jointly purchased a property vide sale deed dated 12.11.1964. On their death one half share of complainant's father devolved on the complainant and his brother Chhajjan (a co-accused, but non applicant) and the remaining one half share of his uncle devolved on Shiv Ram and Phool Singh, his sons. The allegation is that complainant's brother, without authority, by a fictitious and bogus sale deed dated 14.12.2012 sold the entire property in favour of the applicant and in that execution every person was in conspiracy with each other including the witnesses Lekhraj and Natthi. In support of the complaint the statement of the complainant was recorded under section 200 Cr.P.C and that of the witnesses Shiv Ram (P.W.1) and Hare Kishan (P.W.2), under sections 202 Cr.P.C. By way of documentary evidence the complainant produced the sale deed executed by Chhajjan Singh in favour of the applicant as also the sale deed dated 12.11.1964 by which the complainant's father and uncle jointly purchased the property. The learned Magistrate found from the material on record that the accused Chhajjan Singh had no authority to sell the entire property, accordingly, it found a prima facie case to proceed against Chhajjan Singh (non applicant) and the applicant (purchaser) under sections 420, 467 and 468 IPC. The court below, however, did not proceed against the witnesses of the sale deed.
The submission of learned counsel for the applicant is that it is not a case of the complainant that the sale deed in favour of the applicant was executed by an impostor of Chhajjan Singh. Rather, it is an admitted case that Chhajjan Singh fraudulently executed sale deed in excess of his share in favour of the applicant. It has thus been submitted that the sale deed cannot be said to be a forged document so as to warrant proceedings under sections 467 and 468 of the Penal Code. With regards to the offence punishable under section 420 IPC, it has been submitted that the applicant being a purchaser cannot be said to be a perpetrator of the said offence, inasmuch as, it would, if at all, relate to the vendor Chhajjan Singh. It has also been submitted that there is nothing in the complaint or in the statement recorded under sections 200 and 202 Cr.P.C to suggest that the applicant, at the time of purchasing the property, was aware that Chhajjan Singh was not the exclusive owner of the property, which was the subject matter of sale. It has been pointed out that had the court below found any case of conspiracy then it would have summoned the applicant with the aid of section 120-B IPC. It has thus been submitted that the applicant being a bona fide purchaser for value cannot be proceeded against and, as such, the proceeding as against the applicant deserve to be quashed.
Learned counsel for the opposite party no.2 submitted that the applicant is not a bona fide purchaser for value and that a suit has been instituted by Shiv Ram, one of the co-sharer, for cancellation of the sale deed, which is pending as Suit No.132 of 2013 in the Court of Civil Judge (Sr. Div.) Mathura, whose plaint has been filed as Annexure 1 to the counter affidavit. It has been submitted that the applicant was aware that the sale deed was in excess of the authority of Chhajjan Singh (the vendor), which is clear from the fact that, subsequently, a corrigendum deed dated 07.01.2013 (Annexure No.2 to the counter affidavit) was executed for altering the boundaries of the property sold by Chhajjan Singh. It has thus been submitted that the Court below has rightly proceeded against the applicant.
Having considered the rival submissions of the parties and on perusal of the record, the Court finds that the sum and substance of the allegation is that Chhajjan Singh, the brother of the complainant, executed a sale deed in favour of the applicant of a property of which he was not an exclusive owner, inasmuch as there were other co-sharers to the property including the complainant, as is clear from the original purchase deed dated 12.11.1964, which discloses that it was jointly purchased by the complainant's father along with his brother i.e. the uncle of the complainant. Therefore, by succession, the complainant as well as the heirs of his uncle along with Chhajjan Singh, the vendor, were co-owners. Hence, the sale deed was in excess of the authority that the vendor had over the property sold.
Although in the complaint bald allegation has been made that the sale deed has been executed in conspiracy with the applicant but neither in the complaint, nor in the statement recorded under sections 200 or 202 Cr.P.C., which are on record, it has been alleged that the applicant was aware of the defective or incomplete title of the vendor since before the execution of sale deed. The subsequent execution of the corrigendum deed, as claimed by the learned counsel for the complainant, which does not find mention in the complaint, will not make any difference, inasmuch as, it does not disclose that the purchaser (the applicant) was aware of the defective title, if any, of the vendor since the time of execution of the sale deed. In fact, the corrigendum deed (Annexure 2 to the counter affidavit) seeks to correct the boundaries and dimensions of the sold property and makes no admission of the incapacity of the Vendor to execute the sale deed. No doubt, in the complaint, the sale deed has been alleged to be a "Farzi Bainama" that is, a forged sale deed, but as to how it is forged has not been disclosed. Mere labeling a document as "Farzi" or forged, is not sufficient for drawing proceedings. The Court that draws the proceeding, must, from the material on record satisfy itself whether the allegations are, prima facie, substantiated or not. Where an offence of forgery is alleged, the Court, before drawing proceedings must satisfy itself whether from the material on record, prima facie, the necessary ingredients of forgery are disclosed or not.
In the instant case, it has neither been alleged nor substantiated by statements recorded under sections 200 and 202 Cr.P.C that the sale deed was executed by an impostor of Chhajjan Singh or that Chhajjan Singh while executing the sale deed impersonated any one. It is not the case that the signature or thumb mark in the sale deed is of a person other than a person of whom it is purported to be. It is also not the case that some deception was practiced upon Chhajjan Singh.
The disputed sale deed is part of the record (Annexure 6 to the affidavit). A perusal thereof reveals that Chhajjan Singh claiming himself as owner of the property executed sale deed in favour of the applicant. Thus, it cannot be said that Chhajjan Singh while executing the sale deed impersonated any other person.
It is noteworthy that the court below did not summon the accused persons for an offence of criminal conspiracy punishable under section 120-B IPC and rightly so, because from the material available on record, at this stage, no case of criminal conspiracy was made out. The court below has summoned the applicant and Chhajjan Singh under sections 420, 467 and 468 IPC. Chhajjan Singh is not before this Court, therefore, what is to be seen is whether an offence punishable under sections 420, 467 and 468 IPC is made out against the applicant or not.
In order to prosecute a person for an offence punishable under Sections 467 and 468 IPC, the necessary ingredients for the said offences must not only be alleged in the complaint but they must also be supported by the material on record. Before ascertaining as to whether the necessary ingredients for prosecution for the aforesaid offences existed, it would be useful to examine the concerned sections, which are as under:
"467. Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine
468. Forgery for purpose of cheating.-- Whoever commits forgery, intending that the document or electronic record forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
A perusal of the aforesaid provisions would go to show that for prosecuting a person for an offence punishable under sections 467 and 468 IPC there has to be first, a forged document or electronic record. As to what is a forged document, reference may be had to sections 463 and 464 of the Indian Penal Code, which are as under:
"Section 463. Forgery.--- Whoever makes any false documents or false electronic record, 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.
Section 464. Making a false document.--A person is said to make a false document or false electronic record--
First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1.--A man's signature of his own name may amount to forgery.
Explanation 2.--The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note.-- The words ''digital signature' wherever they occur were substituted by the words ''electronic signature' by Amendment Act 10 of 2009.]"
In the case of Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751, the apex court was required to examine a similar question as has arisen in the present case. While interpreting the provisions of section 464 of the Code, in paragraphs 13, 14, 15, 16 and 17 of the report, the apex court observed as follows:
"13. The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
15. 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 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 the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the 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 property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
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."
In the instant case, it is not the case of the complainant that sale deed was not executed by Chhajjan Singh but by an impostor or that Chhajjan Singh impersonated some one else or that he executed the sale deed on account of any fraud, deception, etc. practised upon him. Thus, in the light of the law laid down by the apex court in the case of Mohd. Ibrahim (supra) the sale deed in question cannot be said to be a false document within the meaning of section 464 IPC so as to fall within the purview of a forged document.
Execution of a sale deed in excess of one's authority does not per se amount to creation of a false document within the meaning of section 464 IPC. Accordingly, the prosecution of the applicant, who is a purchaser, for offences punishable under sections 467 & 468 IPC is unsustainable and deserve to be quashed. If there is any grievance with regard to execution of the sale deed, the complainant is free to take recourse to remedies under the civil law.
With regards to drawing of proceedings against the applicant under section 420 IPC, suffice it to say that it is not made out against the applicant inasmuch as the applicant is a purchaser and it is not alleged that he has dishonestly made any false misleading representation. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property (vide paragraph 18 of Mohd. Ibrahim's (supra) judgment).
In Mohd. Ibrahim's case (supra), the apex court, in paragraphs 19 to 21 of the report, observed as follows:
"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 deeds, deceived the complainant in any manner."
In view of the principles laid down by the apex court in the case of Mohd. Ibrahim (supra), an offence punishable under section 420 IPC is not made out against the applicant. Rather, it was open to the purchaser i.e. the applicant, to complain against the vendor that he falsely/ dishonestly misrepresented to him about his exclusive ownership of the property, which he did not have, and on account of such misrepresentation he (the applicant herein) was made to pay the purchase price.
For the reasons detailed above, the complaint allegations and the statements made in support thereof do not make out a prima face case to proceed against the applicant for the offences punishable under Sections 420, 467 and 468 IPC, therefore, the proceedings against the applicant amount to abuse of the process of Court and, as such, to secure the ends of justice the same deserves to be quashed.
The application is allowed. The proceedings as also the summoning order dated 04.03.2013, as against the applicant (Rakesh), in Criminal Complaint Case no.27/IX of 2013, under Sections 420, 467 and 468 IPC, in the Court of Judicial Magistrate Chhata, district Mathura, are hereby quashed. There is no order as to costs.
Order Date :- 9.1.2014.
Rks.