Allahabad High Court
Phoolchand Gupta And Another vs State Of U.P. And Another on 14 January, 2016
Author: Bharat Bhushan
Bench: Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 55 Case :- APPLICATION U/S 482 No. - 46027 of 2013 Applicant :- Phoolchand Gupta And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Khurshed Alam Counsel for Opposite Party :- Govt. Advocate,Ajay Yadav Hon'ble Bharat Bhushan,J.
1. Heard Sri Khurshed Alam, learned counsel for the applicants, learned A.G.A. on behalf of State and Sri I.N. Singh, learned counsel on behalf of opposite party no. 2.
2. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the Charge Sheet No. 186 of 2010 dated 19.5.2010 as well as proceedings of Case Crime No. 1461 of 2007, under Sections 419, 420, 467, 468, 471, 474 and 120-B of the Indian Penal Code (in short 'I.P.C.'), P.S. Kotwali, District Deoria.
3. It appears that informant Ramji Prasad Yadav lodged F.I.R. against his former wife/co-accused Ms. Sushila Devi, applicants Phoolchand Gupta and Raju Kumar Gupta alleging that he had constructed a house in the name of his former wife Ms. Shushila Devi with his own funds. Subsequently, they obtained divorce from the court. Meanwhile opposite party no. 2 Ramji Prasad Yadav filed Original Civil Suit No.17 of 1989 for declaration of his title over the house in dispute. It appears that he obtained a favourable decree dated 5.9.1989 on the basis of compromise. A mutation was also obtained by informant.
4. Ms. Sushila Devi also initiated a Suit No.306 of 1995 for cancellation of the earlier compromise decree and for declaration of her ownership. The suit was dismissed in the year 2007. Thereafter A Civil Appeal was filed on behalf of Ms.Sushila Devi, former wife of the informant, which was allowed in the year 2008. It is alleged that before the appellate judgment, Smt. Sushila Devi sold the disputed house in favour of both the applicants on 17.7.2007.
5. The informant claims that the house in question belongs to him, subsequent to the compromise decree of civil court (however, the decree has been set aside by the appellate court in the year 2008). He further claims that his name has been mutated in municipal record as well as ownership has also been disclosed in income tax return.
6. Allegations are that Ms. Sushila Devi, former wife of the informant sold the disputed property unauthorizedly to the applicants without having any title over it and that; applicants in collusion with Ms. Sushila Devi bought the disputed property in order to grab it. Though informant claims the possession over the disputed property even today. This F.I.R. was investigated and thereafter Final Report No.01/2008 was submitted in Case Crime No.1461 of 2007.
7. A further investigation was initiated under Section 173 (8) Cr.P.C. on the direction of senior Police Officer. The statements of additional witnesss, namely, Sant Gopal Mani, Sri Jai Shri and Sri Nityanand Tiwari were recorded and thereafter a charge sheet under Sections 419, 420, 467, 468, 471, 474 and 120-B I.P.C., P.S. Kotwali, District Deoria was submitted. It is this charge sheet and subsequent proceedings which are under challenge before this Court.
8. Learned counsel for applicants has submitted that dispute is especially about the title over the property in dispute and that; a civil dispute has deliberately been converted into the criminal offence. Initially the property was in the name of Ms. Sushila Devi, the vendor. Subsequently on account of manipulated compromise decree, the ownership has been transferred in the name of her former husband informant, Ramji Prasad Yadav. He further claims that even that order has been set aside by the appellate court in appellate verdict in the year 2008. However it has been pointed out by the counsel for the opposite party no. 2 that even that appellate order is under challenge in Second appeal before this Court which is still pending.
9. On the other hand, learned counsel for respondent no. 2 has argued that false papers were prepared by vendor Ms. Sushila Devi in collusion with applicants and thereafter used for claiming the title over he property in dispute. Further submission is that, the question of title as decided by the Appellate Court in the year 2008 cannot be used for defending her action for the simple reason that property had been sold prior to that verdict.
10. A bare perusal of the record would reveal that both informant as well as vendor Ms. Sushila Devi were husband and wife prior to their divorce. It is also evident that initially the property was constructed in the name of vendor Ms. Sushila Devi. The claimant claims title over the property on the ground of subsequent compromise decree over the property in dispute. The matter is still pending before the High Court. Second claim is that applicants despite knowing that vendor does not possess any title over the property in dispute bought the property.
11. Sections 467, 468, 471 and 474 IPC.
Forgery is sine-qua-non of offences under sections 467, 468 and 471 IPC. Forgery is defined in Section 463 I.P.C. which envisages preparation of false documents or false 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, or to cause any person to 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. Meaning thereby that the preparation of false document or false electronic record or part thereof is condition precedent for offence of forgery. Making of false document is defined under Section 464 I.P.C. A bare perusal of Section 464 I.P.C. would demonstrate that a person is said to have made a false document if; (a) he executed a document claiming to be someone else or authorized by someone else; or (b) he altered and tempered a document; or (c) he obtained a document by practicing deception or from a person not in control of this faculties.
12. Coming back to the facts of the case, it is apparent that the dispute belongs to the title over the property. Co-accused Ms. Sushila Devi sold this property to the applicants. Ms. Sushila Devi did not impersonate or altered or tempered any document or played any deception on the complaint. There was a dispute regarding title over the property. That dispute cannot be adjudicated by the criminal court. It has to be decided by civil court. There is no allegation on record that execution of sale deed by Ms. Sushila Devi in favour of applicants involved forgery of documents or making a false document. The sale deed was indeed executed by Ms. Sushila Devi claiming to be Sushila Devi. It is apparently clear that even if a person executes a document transferring property, disclosing such property as his own, even if there is a dispute regarding ownership of the property, it cannot be termed as forgery. Neither Ms. Sushila Devi nor applicants impersonated anybody. If Ms. Sushila Devi was selling property to the purchaser of her choice, there was no question of forgery. Even if any property is sold by a person claiming ownership which is not his/her without impersonating or claiming or falsely claiming that he or she has been authorized by someone else, the execution of such documents cannot be termed false document within the meaning of Section 464 I.P.C. If false documents are not prepared obviously provisions under Section 467, 468, 471 and 474 I.P.C. are not attracted.
13. Sections 419, 420 IPC To constitute an offence under sections 419, 420 IPC, the allegations must disclose ingredients of cheating as defined under Section 415 IPC. Section 415 talks of fraudulent or dishonest inducement to the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces a person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived. Meaning thereby that there must be not only be cheating but accused should also have been dishonestly induced the person deceived to deliver any property to any person or to make alter or or destroy wholly or in part a valuable security or anything signed or sealed which is capable of being converted into a valuable property. Valuable security is defined under section-30 IPC.
14. In the present case, sale-deed was executed transferring a property claiming ownership thereof. If any deception has been played upon purchaser of the property then the vendee of the property can bring criminal action against the vendor. But a stranger or other persons claiming ownership of the property cannot bring criminal action against the purchase of the property.
15. Section 120-B I.P.C. provides punishment of criminal conspiracy. Criminal conspiracy entails that when two or more persons agreed to do, or cause to be done an illegal act or an act which is not illegal by illegal means, such agreement is designated a criminal conspiracy.
When such criminal conspiracy is committed in order to commit an offence within the meaning of Section 120-B I.P.C. then such conspiracy is punishable. If we peruse the facts of the case, there was no agreement between the parties to commit any offence under the Act. It has already been held that the ingredients of Sections 467, 468, 471, 474, 419 and 420 I.P.C. are not made out. There is no allegation much less evidence to demonstrate that applicants purchased the property as a part of conspiracy. Fact of the matter is that if title of vendor is dislodged by the criminal courts then the applicants will in fact become victim of this transaction. There is nothing on record to demonstrate that the applicants committed any offence or was there any intention to commit offence punishable under the Act. Therefore, the charge of conspiracy against the applicants cannot succeed.
17. The Application under Section 482 Cr.P.C. is allowed and Charge Sheet No. 186 of 2010 in Case Crime No. 1461 of 2007, under Sections 419, 420, 467, 468, 471, 474 and 120-B of the Indian Penal Code (in short 'I.P.C.'), P.s. Kotwali, District Deoria and subsequent criminal proceedings are hereby quashed.
Order Date :- 14.1.2016 Meenu