Madras High Court
Muthammal vs S.Thangam on 5 October, 2018
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 05.10.2018
Date of Reserving the Order
Date of Pronouncing the Order
01.10.2018
05.10.2018
CORAM
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD).No.6423 of 2016
and
Crl.M.P.(MD) Nos.3192 and 3193 of 2016
1.Muthammal
2.P.Esakkiammal @ Devi
3.P.Ramalakshmi
4.P.Rajangam Pillai
5.P.Parameswaran
6.P.Ganapathy Pillai
7.P.Sundararajan
8.P.Velappan ...Petitioners/Accused No.1 to 8
Vs.
S.Thangam ...Respondent/Complainant
PRAYER: Criminal Original Petition filed under Section 482 of the Criminal
Procedure Code, to call for the records relating to the private complaint
filed by the respondent/Complainant pending on the file of the learned
Judicial Magistrate No.I, Nagarcoil in C.C.No.137 of 2015 and quash the
private complaint.
For Petitioners : Mr.Niranjan S.Kumar
For Respondent : Mr.N.Sivakumar
:ORDER
This petition has been filed seeking to quash the proceedings in C.C.No.137 of 2015, pending on the file of the learned Judicial Magistrate No.I, Nagarcoil.
2.The sum and substance of the complaint filed before the Court below by the respondent is that an extent of 3 cents of land in Survey No.171 of 2011, originally belonged to two persons namely, Shanmugam and Sudalaiyandi. Each was entitled for 1 + cents. The said Shanmugam sold the entire three cents to one Pichaikannu Pillai, who is the father of the petitioners 2 to 8 and the husband of the first petitioner. Thereafter, the other brother Sudalaiyandi has executed a sale deed in favour of the respondent to an extent of 1 + cents in the year 1986. The respondent has filed a suit in O.S.No.1388 of 1986 against Pichaikannu Pillai praying for partition and separate possession of 1 + cents land in survey No.171 of 2011.
3.In the said suit, a preliminary decree was passed on 31.08.1999, in favour of the respondent and the respondent was held to be entitled to half share in the property. As against the judgment and decree, the said Pichaikannu Pillai filed an appeal in A.S.No.96 of 1999 before the District Court, Nagercoil and during the pendency of the appeal, he died and the petitioners filed an application to implead themselves to prosecute the appeal. The appeal was also dismissed by judgment and decree dated 13.08.2003. Thereafter, the respondent filed an application for passing of the final decree and the same was pending.
4.In the mean time, the petitioners 1 to 7 executed a sale deed in favour of 8th accused and the accused 9 to 11 are the attesting witnesses in the sale deed. A complaint was lodged before the police and the same was closed as civil in nature. Therefore, the present private complaint has been filed by the respondent against the petitioners for an alleged offences under Sections 420, 463, 464,468, 470 and 471 IPC and r/w. Section 120(b) IPC.
5.The learned counsel for the petitioners would submit that the dispute is purely civil in nature and the petitioners have already filed a second appeal before this Court against the judgment and decree passed in the appeal and there was a delay in filing the appeal and the condone delay petition is pending for adjudication. The learned counsel for the petitioners would further submit that the respondent does not have any right over the property and the decree has been obtained before the Court below by playing fraud on the Court. The learned counsel for the petitioners also submitted that the sale deed executed by the petitioners will not amount to making a false document and therefore, no offence has been made out in the private complaint.
6.Per contra, the learned counsel for the respondent would submit that the petitioners have executed the sale deed for the entire 3 cents of land knowing fully well that the respondent has obtained a preliminary decree for half share in the property and the same has also been confirmed in the appeal. Therefore, the petitioners have committed the offence of cheating and forgery and they have also committed offence of criminal conspiracy. The learned counsel for the respondent would further submit that there are sufficient allegations in the private complaint and there are no grounds to interfere with the same in the present criminal original petition.
7.On the averments made in the complaint, it is important to see whether the offence of forgery has been committed by making a false document. Admittedly, the sale deed has been executed by the petitioners for the entire 3 cents, after a preliminary decree was passed in favour of the respondent for half share in the property and the same was confirmed in the appeal.
8.It will be useful to refer the judgment of the Hon'ble Supreme Court in Mohammed Ibrahim and others Vs. State of Bihar and another reported in (2009) 8 SCC 751. The relevant portions are extracted hereunder:-
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:
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 practicing deception, or from a person not in control of his senses.
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. 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."
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 471of 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 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 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.
9.It will also be relevant to refer the judgment of the Hon'ble Supreme Court in Sheila Sebastian Vs. R.Jawaharaj and another reported in (2018) 3 MLJ (Crl) 39 (SC) LNIND 2018 SC 265. The relevant portions are extracted hereunder:-
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v.
Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that-
"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."
22. In Md. Ibrahim and others V. State of Bihar and another (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
23. The Court in Md. Ibrahim and others V. State of Bihar and another (supra) observed that:
"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.
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."
24. In Mir Nagvi Askari vs. Central Bureau of Investigation, AIR 2010 SC 528 : (2009) 15 SCC 643, LNIND 2009 SC 1651 : (2010) 4 MLJ (Crl) 611, this Court, after analysing the facts of that case, came to observe as follows: "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.
The second criteria 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 criteria of the said section is also not applicable to the present case. 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 with the making of a false document.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
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 in 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 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 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.
10.It is clear from the above judgments that unless the allegations made in the complaint constitutes the offence under Section 464, the entire complaint cannot be sustained. When a person executes a document conveying the property by describing it as his property, two possibilities will arise. The first possibility is that he bona fide believes that the property belongs to him. The second possibility is that he dishonestly and fraudulently claims the property to be his property, even though he knows that the property does not belong to him. If the case is falling under the first category, it is not sufficient that the document has been executed dishonestly or fraudulently. A further requirement needs to be satisfied which is that it should have been executed with an intention of giving an impression that the document was executed with the authority of the 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 some one else, nor is he claiming that he is authorised by some one else. Therefore, the execution of such document is not execution of a false document as defined under Section 464 of the Code of Criminal Procedure.
11.In the present case, the petitioners have executed the sale deed for the entire 3 cents. The respondent is claiming that the civil Court has decreed the suit in her favour, for 1 + cents and therefore, the petitioners should not have executed a sale deed for the entire 3 cents. The question is whether the petitioners have created a false document by executing the sale deed for the entire 3 cents. The petitioners are claiming title through their father who purchased the property from one Shanmugam. That apart the petitioners are also contesting the right of the respondent who is claiming + share in the property. The second appeal filed by the petitioners with a delay, is also pending before this Court. Under such circumstances, the petitioners cannot be held to have committed the offence of creating a false document under Section 464 of the code of Criminal Procedure. If what has been executed by the petitioners is not a false document, then there is no offence of forgery and without there being an offence of forgery, no offence under Section 467 and 471 IPC can be made out. Similarly the allegations made in the complaint also do not make out the offence under Section 420 IPC, since it is not the case of the complainant that the petitioners tried to deceive him either by making a false or misleading representation or by any other action or omission. It is also not the case of the complainant that the petitioners offered her any fraudulent or dishonest inducement to deliver the property or consented to the retention of the property by any person.
12.To constitute the offence of criminal conspiracy, the conspiracy must relate to the commission of the offence. In this case, it has already been found that the execution of the sale deed will not constitute the offence and therefore, the offence of criminal conspiracy will also automatically fall.
13.In view of the above, this Court is of the considered view that the complaint filed by the respondent does not make out any offence against the petitioners. Therefore, this Court has to exercise its jurisdiction under Section 482 Cr.P.C and interfere with the proceeding in order to meet the ends of justice.
14.In the result, the proceedings in C.C.No.137 of 2015, on the file of the learned Judicial Magistrate No.I, Nagercoil is hereby quashed. Accordingly, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed.
To The Judicial Magistrate No.V, Madurai .