Delhi District Court
Manpreet Kaur Chawla vs Ms. Honey Sharma on 11 April, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION No. 900 of 2018
CNR NO. DLSE01-010352-2018
IN THE MATTER OF:
Manpreet Kaur Chawla
Director
M/s G.N. Builders Pvt. Ltd.,
D-300, Defence Colony,
New Delhi-110024.
.......Revisionist
Versus
1. Ms. Honey Sharma
W/o Sh. Vipin Sharma
D-111, Defence Colony,
New Delhi-110024.
2. Mr. Babar Chopra
S/o Sh. T.R. Chopra
E-336, East of Kailash,
New Delhi-110065.
3. Mr. Vipin Handa
S/o Sh. N.C. Handa
C-4/33, Safdarjung Development
Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 1 of 19
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.04.11
12:32:53 +0530
Area, New Delhi-110016.
4. M/s Manik Builders (P) Ltd.
Through its Directors
Manoj Gupta and Pramod Gupta
A-328, Defence Colony,
New Delhi-110024.
........Respondents
Instituted on : 21.12.2018
Reserved on : 23.03.2023
Pronounced on : 11.04.2023
JUDGMENT
1. By way of instant petition, revisionist takes exception to the order dated 05.09.2018, whereby her complaint filed under section 200 CrPC stood dismissed by Ld. Metropolitan Magistrate-09 (MM), South East District, Saket Court, New Delhi, in complaint case bearing CT Cases No. 614138/2016 titled as Manpreet Kaur Chawla vs. Honey Sharma & Ors.
2. Brief facts, as noted by Ld. MM in the impugned order, are not in dispute and the same are being reproduced for the sake of convenience :-
"The complainant in her complaint alleged that Vipin Handa after receiving the full sale consideration sold the property bearing No. D-111, Defence Colony, New Delhi to M/s. G.N. Builders Pvt. Ltd. vide different sale agreement and GPA. The back portion of the said property was sold to Vipin Sharma husband of Honey Sharma vide sale deed and Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 2 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:33:08 +0530 possession was handed over to him. For the front portion of ground floor of D-111, Defence Colony consisting of one bedroom, one living room alongwith toilet and proportionate indivisible portion (hereinafter shall be referred as "disputed property") and agreement to sale dated 12.12.2000 was executed with Honey Sharma for sale consideration of Rs. 22,50,000/- for which cheques were issued for an amount of Rs. 9,85,000/- is still outstanding from Honey Sharma. It is further submitted that Sh. G.S. Chawla expired on 23.03.2009 and thereafter complainant looked into the business affairs of M/s. G.N. Builders Pvt. Ltd. and found that Honey Sharma illegally trespassed into the said property and a civil suit bearing No. CS (OS) 2471/2011 were claiming damages and possession of the disputed property was filed in Hon'ble High Court of Delhi vide order dated 27.09.2011 to maintain status quo.
Complainant came to know that one Babbar Chopra entered into agreement for purchase of disputed property with Honey Sharma and filed civil suit for specific performance bearing No. CS(OS) 781/2006 and obtained ex- parte decree for specific performance. Thereafter complainant filed a civil suit bearing No. CS (OS) 3092/2011 seeking decree of declaration and injunction in respect of decree dated 31.07.2007 for specific performance obtained by Babbar Chopra in connivance of Honey Sharma. In the meantime, they both got executed sale deed from Vipin Handa from Honey Sharma by playing a fraud despite the fact that an agreement to sale was executed with M/s. G.N. Builders Pvt. Ltd. Honey Sharma further executed a sale deed in favour of M/s. Manik Builders on or about 09.12.2011 for a sum of Rs. 80,00,000/-. Thus, Vipin Handa, Honey Sharma, Babbar Chopra and Manoj Gupta and Pramod (both directors of M/s. Manik Builders Pvt. Ltd.) acted in conspiracy to cause wrongful loss to complainant and to defeat the claim of M/s. G.N. Builders Pvt. Ltd in the civil suits."
3. Trial Court record reveals that the revisionist examined herself as CW1 and four other witnesses in support of her allegations in pre-summoning evidence. Ld. MM, vide impugned order, dismissed the complaint of the revisionist finding no sufficient ground to summon the Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 3 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:33:21 +0530 respondents/accused. The relevant observations of Ld. MM are being reproduced for the sake of convenience:-
"The prime requisite for the offence of cheating is dishonest intention to cheat from the very inception and wrongful loss caused to the persons so deceived. In Crl. Appeal No. 1965 of 2009 title as Md. Ibrahim & Ors Vs. State of Bihar & Anr, Hon'ble Supreme Court has observed that:-
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. 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. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under section 417, 418, 419 or 420 of the Code.
A clarification When we say that execution of a sale deed by a person purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that he vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.04.11
12:33:35 +0530
In the present case also, Vipin Handa transferred the property bearing No. D-111, Defence Colony, New Delhi in favour of M/s. G.N. Builders Pvt. Ltd. vide executing agreement for sale Ex.CW1/2 and possession letter Ex.CW1/3. Thereafter, he executed power of attorney Ex.CW2/1 with regard to entire ground floor including the disputed property as per agreement Ex.CW1/2. It is alleged that the Vipin Handa and M/s. G.N. Builders Pvt. Ltd. agreed to transfer the disputed property in favour of Honey Sharma for sale consideration of Rs. 22,5000/- vide agreement to sale Mark-A dated 12.12.2000. Honey Sharma did not pay the entire sale consideration, therefore, the sale deed was not executed in her favour. It is alleged that Honey Sharma directly approached Vipin Handa for execution of sale deed with regard to the disputed property in her favour. Vipin Handa executed sale deed in favour of Honey Sharma and received cash amount without any authority given by the complainant or M/s. G.N. Builder Pvt. Ltd. to cause wrongful loss.
In view of the observation made by the Hon'ble Apex Court in the case of Md. Ibrahim Vs. State of Bihar (Supra), the complainant is not a victim because has not been cheated by execution of sale deed by Vipin Handa in favour of Honey Sharma without having any authority or title. Complainant is neither induced by the respondents to transfer the disputed property nor she paid any money to the respondents for transfer of the disputed property. If Vipin Handa had transferred the disputed property in favour of Honey Sharma without any authority or title, then the victim of cheating is Honey Sharma and not the complainant as per the observation of Hon'ble Supreme Court of India in the case of Md. Ibrahim Vs. State of Bihar (Supra).
In the judgment titled as "Indian Oil Corporation Vs. NEPC India Ltd & ors" (2006) 6 Supreme Court Cases, 736, the Hon'ble Supreme Court in its para no.13 please to hold as under:
"13. While on this issue, it is necessary to take notice of a growing tendency business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 5 of 19 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:33:48 +0530 disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
The present complaint is filed by the complainant just to pressurize the respondents to seek favorable settlement/result in the civil suits for declaration and injunction bearing No. CS(OS) 3092/2011. In view of above discussion, the Court is of the considered opinion that there is no sufficient evidence available on record to prove that a case U/s. 420 IPC is made out against the respondents, thus complaint is dismissed."
4. Revisionist is aggrieved with the said order and has assailed the same on various ground which can be summarized as under:-
(i) That the impugned order passed by Ld. Trial Court is against the settled principles of law and is liable to be set- aside;
(ii) That Ld. Trial Court has failed to appreciate the testimony of revisionist and her witnesses as well as material available on record;
(iii) That Ld. Trial Court failed to appreciate the fact that when respondent No.3 had discharged the property in favour of M/s G.N. Builders, he has no right to execute any sale deed with regard to the said property;
(iv) That Ld. Trial Court failed to appreciate the fact that a conspiracy was hatched and sale deed dated 30.11.2011 was executed directly between respondent No. 1 and 3 after exchange of money on the property which was already sold to M/s G.N. Builders;
(v) That Ld. Trial Court passed the impugned order in a mechanical manner and is full of surmises and conjectures;
(vi) That Ld. Trial Court failed to appreciate the fact that the complaint of revisionist and evidence on record discloses commission of offence u/s 420 IPC against the respondents.
5. Ld. Counsel for revisionist argued on the line of grounds as mentioned in the instant revision petition. He vehemently argued that Ld. Magistrate committed grave error in passing the impugned order as the Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 6 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:33:57 +0530 same was passed in haste ignoring the factual matrix and materials available on record. It was argued that impugned order is bad in law and is liable to be set aside. It was further argued that Vipin Handa executed a sale deed dated 30.11.2011 in favour of Honey Sharma without any authority from complainant. It was argued that Vipin Handa cannot be said to be covered under judgment of Mohd. Ibrahim. It was further argued that Honey Sharma, Babar Chopra and M/s Manik Builders are part of conspiracy to give benefit to M/s Manik Builders. On the strength of these arguments, revisionist seeks setting aside of the impugned order and non-summoning of respondent. Ld. Counsel for the revisionist has relied upon the judgment of Hon'ble Apex Court in Md. Ibrahim & Ors. vs. State of Bihar & Anr. (2009) 8 SCC 751.
6. Per contra, Ld. Counsel for respondent No.4 vehemently argued that there is no infirmity in the impugned order and Ld. Magistrate for the right reasons dismissed the complaint of revisionist. He further argued that the impugned order was passed after considering all the facts and circumstances of the present case including the testimonies of complainant's witnesses. He argued that Ld. Magistrate rightly observed that there is no sufficient material on record to proceed further against the proposed accused for the offence alleged against him by the revisionist in the present case. He further argued that allegations as leveled by revisionist is frivolous in nature and as such, no offence is made out against the respondents. He submitted that the present revision petition is misconceived and therefore same is liable to be dismissed.
6A. None appeared on behalf of remaining respondents.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.04.11
12:34:07 +0530
7. I have heard arguments and perused the record.
8. Before proceeding further, it would apt to recall the note of caution that was voiced by the Apex Court in M/s. Pepsi Foods vs. Special Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128. The Apex Court held that summoning of an accused in a Criminal case is a serious matter. The relevant observations at para 26 of the judgment is reproduced hereunder:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
9. Similar are the observations of Apex Court in a recent judgment titled as Ravindranatha Bajpe Vs Mangalore Special Economic Zone Ltd., LL 2021 SC 505, Case no. CrA 1047-1048/2021, decided on 27.09.2021.
10. The factual matrix as alleged by revisionist for the sake of convenience is being summarized as under:-
Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 8 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:34:19 +0530 "(i) On 07.06.1999 vide agreement to sell Ex. CW2, power of attorney and possession letter, ground floor of property No. D-111, Defence Colony was purchased by M/s G.N. Builders from Sh. Vipin Handa;
(ii) On 12.12.2000, the front portion of the property was agreed to be sold by M/s G.N. Builders to Smt. Honey Sharma vide agreement to sell Mark-A;
(iii) On 09.12.2000, two cheques Ex. CW1/4 and Ex.
CW1/5 given by Smt. Honey Sharma (as part of the sale consideration of the front portion) in favour of M/s G.N. Builders got dishonoured vide cheque return memos Ex. PW1/6 and Ex. PW1/7 dated 15.12.2000;
(iv) On 11.01.2001, vide telegram, agreement to sell was cancelled by M/s G.N. Builders with Smt. Honey Sharma;
(v) Vide agreement to sell Mark-B dated 29.04.2001, the rear portion of the ground floor of the property was agreed to be sold by M/s G.N. Builders to Sh. Vipin Sharma i.e. husband of Smt. Honey Sharma;
(vi) On 18.07.2001, letter Ex. CW1/10 was issued by Sh. Vipin Sharma to adjust the amount given by Honey Sharma as advance with respect to back portion of the ground floor of the property.
(vii) On 18.01.2002, letter Ex. CW1/8 was issued by Honey Sharma to adjust the amount given by her with respect to back portion of the ground floor of the property and by letter Ex. CW1/9, Vipin Sharma also endorsed the same fact.
(viii) M/s G.N. Builders through its Director Sh. G.S. Chawla executed the sale deed in favour of Vipin Sharma with respect to back portion of the property in question;
(ix) M/s G.N. Builders continues to be the owner of front portion, ground floor of the said property. However despite the same, respondent Honey Sharma entered into an agreement to sell dated 08.09.2004 with respondent Sh. Babbar Chopra, thereby agreeing to sell the front portion;
(x) A suit for specific performance of contract was filed between Smt. Honey Sharma and Sh. Babbar Chopra which was decreed ex-parte in favour of respondent Babbar Chopra, however the same could not be executed as the title was not perfect;
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ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2023.04.11 12:34:31
+0530
(xi) That on 30.11.2011, Sh. Vipin Handa executed the sale deed of the front and rear portion of the property in the name of Smt. Honey Sharma;
(xii) Smt. Honey Sharma transferred the front portion vide sale deed dated 09.12.2011 Ex. CW5/1 in favour of respondent No.4 M/s Manik Builders."
(xiii) On 23.03.2012, complainant wrote a complaint Ex. CW1/12 to EOW Cell for the fraud committed by Honey Sharma, Vipin Sharma, M/s Manik Builders and Babbar Chopra.
11. Therefore, the case of the complainant/revisionist at best is that despite not being the owner of front portion, ground floor of the property in question, respondent Honey Sharma transferred the same to respondent M/s Manik Builders. However, in my considered view, that by itself would not bring the sale documents within ambit of false document as defined under Section 464 IPC. Merely because vide said document, the respondent Honey Sharma transferred the front portion of the property in question to other accused i.e. M/s Manik Builders, it cannot be said that any false/forged document was created.
12. Similarly, transaction between respondent Vipin Handa and Honey Sharma thereby transferring both front and rear portion in her favour would not bring the said transaction within ambit of making of false document as defined u/s 464 IPC.
13. Reliance is placed upon the judgment of Muthammal vs. S. Thangam, Crl. O.P (MD) No. 6423 of 2016 and Crl. M.P. (MD) Nos. 3192 of 2016, passed by Hon'ble Madras High Court on 05.10.2018. Relevant portion of the judgement is reproduced as under:-
Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 10 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:34:41 +0530 "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 Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 11 of 19 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:34:50 +0530 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 Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 12 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:35:00 +0530 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 Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 13 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:35:11 +0530 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, Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 14 of 19 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:35:21 +0530 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 Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 15 of 19 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:35:30 +0530 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 Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 16 of 19 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:35:39 +0530 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 someone 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".
14. Though the revisionist alleges the offence of cheating, however admittedly no inducement was ever made to her by any of the respondents. By the alleged transactions between respondents, it cannot be said the revisionist was induced in any manner by any of the respondents to do or omit to do anything which she would not have done but for such inducement. Therefore, the essential ingredients of cheating are missing in the instant case.
15. In my view, the matter is purely civil in nature, to which a criminal colour is sought to be given. Even if all the allegations of revisionist are taken true on its face value, then also no offence is disclosed in the instant case. The remedy of revisionist, if any, lies with civil court.
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16. Even, Superior Courts have time and again deprecated the initiation of false criminal proceedings in cases having the elements of civil dispute. The quick relief offered by a criminal prosecution as opposed to a civil dispute incentivizes the litigant to initiate false and vexatious proceedings. Moreover, in a country suffering the scourge of world's largest backlog of cases, litigants often view criminal proceedings as a tool to pressurize and obtain a favourable settlement from other side. The Hon'ble Apex Court in G. Sagar Suri Vs State of UP, Crl Appeal No.91/2000, date of decision 28.01.2000 has categorically observed as under :-
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under section 482 Cr.P.C. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice".
17. Further, in case titled as M/s Indian Oil Corporation VS M/s NEPC India Ltd & Ors, in Appeal (Crl) No. 834/2002 date of judgment 20.07.2006, Hon'ble Apex court has observed as under:-
"While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 18 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:35:59 +0530 offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
18. In view of the settled position of law, I am of the considered view that no case for summoning of any of the respondents is made out. Ld. Counsel for revisionist has failed to point out any patent illegality/ infirmity or jurisdictional error in the impugned order and therefore present petition is liable to be dismissed.
19. With these observations, it is held that there is no patent illegality, impropriety or jurisdictional error in the impugned order. The instant revision petition stands dismissed accordingly.
20. TCR be sent back to Ld Trial Court along with copy of this judgment.
21. Revision file be consigned to Record Room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.04.11 12:36:20 +0530 Announced in the open (ANUJ AGRAWAL) Court on 11th April, 2023 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 900/2018 Manpreet Kaur Chawla Vs Honey Sharma & Ors. Page No. 19 of 19