Madras High Court
S.Swarnapandian vs The Inspector Of Police on 18 February, 2020
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 CRL.O.P.(MD)NO. 5944 OF 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.02.2020
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P.(MD)No.5944 of 2016 and
Crl.M.P.(MD)Nos.2933 & 9518 of 2016
1. S.Swarnapandian
2. S.Prabuthanga Marthandan ... Petitioners/Petitioners
Vs.
1. The Inspector of Police,
Anti-Land Grabbing Special Cell,
Nagercoil,
Kanyakumari District. ... 1st Respondent/
Complainant
2. S.Varatharaja Boopathy ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original petition is filed under
Section 482 of Cr.P.C, to call for records relating to the First
Information Report in Crime No.10 of 2015 on the file of the
first respondent police and quash the same as illegal in
respect of the petitioners/accused alone.
For Petitioners : Mr.T.Mohan,
for Mr.M.P.Senthil.
For R-1 : Mr.A.Robinson,
Government Advocate(Crl. Side).
For R-2 : Mr.G.Prabhu Rajadurai
***
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2 CRL.O.P.(MD)NO. 5944 OF 2016
ORDER
This criminal original petition has been filed for quashing the impugned First Information Report in Crime No.10 of 2015 registered on the file of the first respondent for the offences under Sections 420, 465, 468 and 471 of I.P.C.
2. The second respondent herein is the defacto complainant. The second respondent and the first petitioner are brothers. The second respondent filed a partition suit in O.S.No.69 of 1985 against his father and others. During the pendency of the proceedings, the father passed away. A preliminary decree was passed on 22.07.1992 and final decree was also passed on 03.09.2002. It is not in dispute that the subject matter of the First Information Report is comprised in survey No.223/5B in Dharmapuram Village, Agastheeswaram Taluk, Kanyakumari District and 1/6th share earmarked in the said survey number was allotted in favour of the defacto complainant. It is the case of the defacto complainant that the property that was allotted to the defacto complainant was made the subject matter of the mortgage deed dated http://www.judis.nic.in 2/12 3 CRL.O.P.(MD)NO. 5944 OF 2016 06.05.2014 by the first petitioner in favour of the second petitioner. The second petitioner is none other than the son of the first petitioner.
3. The learned counsel appearing for the defacto complainant pointed out that the first petitioner is a retired engineer while the second petitioner is a leading doctor. Both are residing under the same roof. The mortgage is for a lumpsum of Rs.1,00,000/-. According to the defacto complainant, the dishonest element is so obvious from these circumstances.
4. I am of the view that the issue has to be approached from a legal perspective. The case of the defacto complainant is that the petitioners have committed the offence of forgery.
5. The offence of cheating can be made out only if the accused had held out some representations to the aggrieved person and the aggrieved person on the strength of such representations altered his position. In this case, admittedly http://www.judis.nic.in 3/12 4 CRL.O.P.(MD)NO. 5944 OF 2016 the petitioners have not held out any false assurance to the defacto complainant/second respondent herein. The transaction was one between the first petitioner and the second petitioner. The defacto complainant is alien to the said transaction. Therefore, the defacto complainant cannot be said to have been cheated by the acts of the petitioners. Therefore, the essential ingredients of Section 420 of I.P.C. are wholly absent in this case.
6. Likewise the petitioners cannot be said to have created any false document. Of course the learned counsel appearing for the defacto complainant wants this Court to read Section 464 of I.P.C. in a way that the execution of such document (purporting to convey some property of which he is not the owner) is execution of a false document.
7. The issue is no longer res integra. The learned counsel appearing for the petitioners submitted that the impugned proceedings will have to be quashed in the light of the decision of the Hon'ble Supreme Court reported in (2009) 8 SCC 751 (Md.Ibrahim vs. State of Bihar). The Hon'ble http://www.judis.nic.in 4/12 5 CRL.O.P.(MD)NO. 5944 OF 2016 Supreme Court was concerned with a case arising under Section 467 and 471 of IPC. Paragraph Nos.8 to 12 of the sad decision are as follows :
“8.Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under Section 467 or Section 471 of Penal Code. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 defines a forged document as a false document made by forgery.
9.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 http://www.judis.nic.in 5/12 6 CRL.O.P.(MD)NO. 5944 OF 2016 commit fraud or that the fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below:
464.Making a false document.--A person is said to make a false document or false electronic record---
First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at http://www.judis.nic.in 6/12 7 CRL.O.P.(MD)NO. 5944 OF 2016 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].
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 http://www.judis.nic.in 7/12 8 CRL.O.P.(MD)NO. 5944 OF 2016 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.
10.An analysis of Section 464 of 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 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.
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 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.
11. In short, a person is said to have made a `false document', http://www.judis.nic.in 8/12 9 CRL.O.P.(MD)NO. 5944 OF 2016 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.
12.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.
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 bonafide believes that the property actually belongs to him. The second is that he may be http://www.judis.nic.in 9/12 10 CRL.O.P.(MD)NO. 5944 OF 2016 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.” Applying the ratio laid down by the Hon'ble Supreme Court, I hold that the offence of forgery is also not made out.
8. In this view of the matter, the impugned First Information Report stands quashed.
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9. I must record the submission of the defacto complainant's counsel that the other offences under Section 192 and 207 of I.P.C. appear to have been committed by the petitioners herein. But the First Information Report has not been registered for the aforesaid offences. These are non-cognizable offences. I do not propose to go into the contention urged by the defacto complainant's counsel.
10. With these observations, the criminal original petition stands allowed. Consequently, connected miscellaneous petitions are closed.
18.02.2020
Index : Yes / No
Internet : Yes/ No
pmu
To:
1. The Inspector of Police,
Anti-Land Grabbing Special Cell,
Nagercoil,
Kanyakumari District.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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