Patna High Court
Sahdeo Mandal vs State Of Bihar & Anr on 15 May, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No 30055 of 2007
===========================================================
Sahdeo Mandal, son of late Gudri Mandal, resident of Mohalla - Topkhana Bazar
Katghar, P S - Kotwali, District - Munger
.... .... Petitioner/s
Versus
1 State of Bihar
2 Saroj Kumari, wife of Siddhi Nath Mishra, resident of Basgarha, P S - Kotwali,
District - Munger
.... .... Opposite Party/s
===========================================================
Appearance :
For the Petitioner/s : M/s Ashok Kumar Jha, Dhirendra Nath Jha,
Dinesh Kumar Gupta & Ajay Kumar Jha
For Opposite Party No 2 : M/s Satish Kumar Singh & Shilpi Keshari
For the State : Mr Matloob Rab, APP
===========================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 15-05-2012
1. Heard learned counsel for the petitioner, learned
counsel for the State and learned counsel for opposite party No 2.
2. The petitioner has come against the order dated
20.12.2006passed by Shri P.K.Sinha, Judicial Magistrate, First Class, Munger in Complaint Case No 1104C of 2006 by which he has been summoned together with other co-accused persons for the offence under Sections 420, 471 and 120B of Indian Penal Code as well as for quashing the whole proceeding against him in the aforesaid case.
3. In short, the case of the complainant/opposite party No 2 is that the petitioner sold 2.50 decimals of land out of 3 kathas to 2 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 2 / 15 one Urmila Kumari on 25.09.2006 through registered sale deed having least interest in the said land and full knowledge that the land belongs to the complainant. It has further been alleged that the land in question was purchased by cousin father-in-law of the complainant, namely, Raghubir Mishra and on private partition, it was transferred to one Rama Devi, the mother-in-law of the complainant by Bazidawa (relinquishment of right) and out of five kathas of land, two kathas were sold to one Bishakha Devi, wife of Dhiraj Kumar on 23.02.1993 and three kathas were in the possession of the complainant. The complaint was filed on 20.11.2006 before the learned Chief Judicial Magistrate, Munger who made over the case under Section 192 of Criminal Procedure Code to the Court of Shri P K Sinha, Judicial Magistrate, First Class, Patna who, pursuant to recording the statement of the complainant on oath and examination of the witnesses under Section 202 of the Criminal Procedure Code ordered for issuance of process under Section 204 of the Code of Criminal Procedure which order is under challenge before this Court.
4. It is contended on behalf of the petitioner that the present complaint has been instituted making false allegation. The recorded tenant of the house and the land in question was one Jhalo Koerin, wife of Labbu Mandal who was ancestor of petitioner as would be apparent from the relevant genealogy given in paragraph 7 of the petition which is reproduced hereinbelow:
3 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 3 / 15 Mansuran Mandal.
/
-----------------------------------------------------------------
/ / /
Gulab Mandal. Churaman Mandal Kanhai Mandal
/ /
--------------------------- ------------------------------------------
/ / / /
Baijnath Mandal Gurudyal Jhoti Prit (died issueless)
/ (died issueless) /
Laboo Mandal@ Nabbu Mandal =Jhalo -----------------------------------
/ /
Saukhi Kokil (died issueless)
/
Gudri Mandal.
/
Sahdeo Mandal - Petitioner
5. It is submitted that Most. Jhalo Koerin gifted the house and other property to her sister's son Ram Kishun Mandal for which the father of the petitioner had brought a Title Suit against Ram Kishun Mandal for house in question and others vide Title Suit No 108 of 1978 in which after death of the petitioner's father and Ram Kishun Mandal, the name of the petitioner and heirs of Ram Kishun Mandal were substituted and later on the suit was compromised and a decree was passed.
6. The complainant by suppressing the true and actual state of affairs that the petitioner is owner and is in possession of the land and house since the time of ancestor without any break, uninterruptedly, continuously and was coming in possession after disposal of Title Suit No 108 of 1978 brought the present complaint. It is also submitted that the Circle Officer mutated the name of the petitioner by order dated 23.11.1985 in Mutation Case No 242 of 4 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 4 / 15 1985-86 and in Municipal records also the name of the petitioner has been mutated with respect to House No 127 which is the house in question and upto date municipal receipt was being issued in his name. the Jamabandi of Jhalo was No 1, Tauzi No was 1947/1049 and Ward Number of the land and house in question was 2, Municipal Khesra Number was 534 and the landlord of aforesaid Tauzi was Mouzi Pandit, son of Ram Lal Pandit of Topkhana Bazar, Munger which would be apparent from register 'D' and, thereafter, the landlord gave return in the name of Jhalo and the name of Jhalo was registered in Register-II in Jamabandi No 1.
7. It is also submitted that the complainant has no right, title, interest and possession over the land in question. After mutation of the land in question in the name of petitioner, the complainant had filed objection but her objection was rejected on 07.02.1994 by the Special Officer, Munger Municipality and she was advised to go to Civil Court. The name of the ancestor of the complainant recorded in the Municipality was also cancelled on 01.06.2001 by the Special Officer, Munger in Petition No.6 of 1998-
99. The complainant filed Mutation Case No 326 of 1997-98 for mutation in her name which was rejected on 04.05.1998 by Anchal Adhikari, Sadar Munger. The complainant filed Mutation Appeal No 16 of 1998-99 before Land Reforms Deputy Collector, Munger which was decided on 17.10.2003 in favour of the complainant and against 5 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 5 / 15 that order Mutation Revision No 18 of 2003-2004 was filed by the petitioner which was pending. It is further submitted that during the pendency of the petition filed before this court the petitioner received a notice in Title Suit No.114 of 2008 filed on behalf of opposite party no.2 wherein the petitioner has been implicated as respondent no.2 and in paragraph-21 of the title suit following prayer has been made.
―a) That after adjudication of the fact the court be pleased to declare that the defdt 1st party has not acquired any right title and possession by virtue of sale deed dated 21.9.06 and the sale deed no 3015 Book no 15 dated 21.9.06 is ab initio void without consideration and inoperative and not binding upon the plaintiff.
b) That the title and possession of the Plaintiff over the suit land be declared and if the plaintiff be found dispossessed during the pendency of the suit, then order of recovery of possession also be passed and the Plaintiff be put in possession by the process of the court.
Schedule III property.
c) That the defdt 1st party be restrained by an order of permanent injunction from forcefully taking possession of the suit property or illegally dispossession the pltff. and entertaining with the peaceful possession of pltff.
d) That the cost of the suit also be awarded in favour of the plaintiff against the defendants. 6 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 6 / 15
e) That other relief or reliefs which deemed fit and proper also be granted to the plaintiff against the defendants.
8. On the other hand, learned counsel for opposite party no.2 submits that a criminal complaint or first information report can only be quashed prior to the trial proceeding when it can be shown and proved without any iota of doubt that even if the prosecution story is admitted to be true, no case is made out against the accused persons and that the quashing of the criminal trial can be done only in rarest of the rare case. He further submits that from the allegations made out in the complaint a clear case of sections 420 and 471 is made out and the court below has rightly summoned the petitioner to face trial. He submits that there is no valid ground for interference by this court at this stage. He admits that it is true that opposite party no.2 has also filed Title Suit No 114 of 2000 against the petitioner and Smt. Urmila Kumari in the Court of Sub Judge I, Munger but the relief prayed for in that case would not in any way affect the prosecution of the petitioner in a criminal case. Two proceedings are entirely different to each other and both the proceedings are maintainable in the eye of law. He submits that, as a matter of fact, in khatiyan, the possession is shown in the name of Most Khakshi wife of Bulaki Pasi with respect to the land in question. According to him, the land in question was transferred to Raghubir 7 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 7 / 15 Narayan Mishra by registered sale deed dated 24.01.1949. There was a partition in between two brothers and the land was transferred in the name of Rama Devi wife of Sukhdeo Mishra the mother-in-law of the complainant on 16.11.1984 and then name of Rama Devi was mutated in her name till her death and after that the rent receipts are being issued in the name of Rama Devi. He submits that after the death of Rama Devi the complainant became absolute owner of the said land. Out of five kathas of land, two kathas of land was sold to Bishakha Devi wife of Dhiraj Kumar on 23.2.1993 through registered sale deed and after that name of Bishakha Devi was also mutated and rent receipts were also granted and remaining three kathas of land was in possession of the complainant and later on her name was also mutated and rent receipts were granted to her. The accused persons conspired and taking advantage of absence of the complainant from Munger the petitioner sold 2.50 decimals of land out of three kathas to accused no.2 namely, Urmila Kumari wife of Pradeep Kumar Yadav for consideration of Rs.1,10,000/-. He submits that by order dated 17.10.2003 the Deputy Collector Land Reforms passed order for mutation of the land in question in favour of the complainant. Thus, it is submitted that the claim of the petitioner is in respect of the land is absolutely false and by executing a registered sale deed in favour of accused no.2, namely, Urmila Kumari he has cheated the complainant.
9. Having heard the rival submissions made on 8 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 8 / 15 behalf of the parties, I would like to first consider whether the averments made in the complaint, even assuming to be true, make out the ingredients of the offence punishable either under Section 420 or Section 471 of the Indian Penal Code. The essential ingredients of the offence of cheating is 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 detain any property, or 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‖.
10. To constitute an offence under Section 420 of Indian Penal Code, 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 any thing signed or sealed and which is capable of being converted into a valuable security). 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
9 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 9 / 15 cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case, the complainant is not the purchaser. On the other hand, the purchaser has been made a co-accused.
11. It is not the case of the complainant that any of the accused tried to deceive her either by making a false or misleading representation or by any other action or omission nor her case is that they offered her any fraudulent or dishonest inducement to deliver any property or to consent to the detention thereof by any person or to intentionally induce her to do or omit to do anything which she would not do or omit if she were not so deceived nor did the complainant allege that the petitioner pretended to be the complainant while executing the sale deed. Therefore, it cannot be said that the petitioner by the act of executing the sale deed in favour of co-accused Urmila Devi by reason of being purchaser or the other co-accused persons by reason of being witnesses, identifier or otherwise involved in any manner in regard to sale deed deceived the complainant.
12. Since the ingredients of cheating as stated in Section 415 of the Indian Penal Code are not found, it cannot be said that there was an offence punishable under Section 420 of the Indian Penal Code.
13. Section 471 of the Indian Penal Code relates to using as genuine, a forged document or electronic record which reads 10 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 10 / 15 as follows.:
"471. Using as genuine a forged [document or electronic record].- Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.‖
14. A bare reading of Section 471 of Indian Penal Code makes it clear that for attracting an offence under this section, there must be making of false document.
15. Section 464 of the Indian Penal Code defines 'making a false document' which reads as under:
"464. Making a false document.- A person is said to make a false document or false electronic record-
Firstly--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 document, electronic record or electronic signature was
11 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 11 / 15 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 practiced upon him, he does not know the contents of the document or electronic record or the nature of alteration‖.
16. 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 of the Indian Penal Code which reads as under:
―463. Forgery.- Whoever makes any false 12 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 12 / 15 documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, to cause any person or 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‖.
17. Section 471 of the Indian Penal Code provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to belief to be a forged document, shall be punished in the same manner as if he had forged such document.
18. The condition precedent for an offence under section 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). The question, thus, arises as to whether the petitioner in executing and registering the sale deed 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 a false document, in collusion with the other accused. An analysis of section 464 of the Indian Penal Code shows that it divides false documents into three categories: (i) 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 13 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 13 / 15 some other person, by whom or by whose authority he knows it was not made or executed; (ii) 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; (iii) 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 practiced upon him, know the contents of the document or the nature of the alteration.
19. The sale deed executed by the petitioner, clearly and obviously do not fall under the second and third categories of 'false document'. Therefore, it is to be seen as to whether the claim of the complainant that the execution of sale deed by the petitioner, who was in no way connected with the land, amounted to committing forgery of the document with the intention of taking possession of the complainant's land would bring the case under the first category.
20. There is basic difference between a person executing a sale deed claiming that the property is his property and a person executing a sale deed by impersonating the owner or false claiming to be authorized or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document 14 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 14 / 15 conveying the 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 document', 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.
21. 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 authorized by someone else. Therefore, execution of such document is not an execution of false document as defined under Section 464 of the Indian Penal Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then Section 471 of the Indian Penal Code is not attracted.
22. In that view of the matter, even if the averments made in the complaint assuming to be true in its entirety, it did not make out any offence either under Section 420 or Section 471 or Section 120B of the Indian Penal Code.
15 Patna High Court Cr.Misc. No.30055 of 2007 dt.15-05-2012 15 / 15
23. For the reasons stated above, allowing the prosecution to continue as against the petitioner would amount to a gross abuse of process of the Court.
In the result, the application is allowed. The order dated 20.12.2006 passed by Shri P.K.Sinha, the learned Judicial Magistrate, First Class, Munger as well as the entire proceedings in Complaint Case No 1104C of 2006 so far as it relates to the petitioner is hereby quashed.
(Ashwani Kumar Singh, J) Patna High Court, Patna The 15th of May, 2012, Md. S/AFR