Rajasthan High Court - Jaipur
Ummed Jadam vs State Of Raj And Anr on 8 May, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 5537/2017
Ummed Jadam S/o Bhag Chand Jadam, R/o Pancholi Choraha,
Ramnagar, Ajmer.
----Petitioner
Versus
1. State Of Rajasthan Through Pp.
2. Paras Chand Lalwani S/o Late Laxmi Chand Lalwani, R/o
4/351, Lakham Kotadi, Ajmer.
----Respondents
For Petitioner(s) : Mr. J.P. Gupta
For Respondent(s) : Mr. Aladeen Khan, PP for State
Mr. Neeraj K. Tiwari, for respondent
No.2 HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Order 08/05/2018 Present petition has been filed under Section 482 Cr.P.C. praying that the order dated 19.2.2013 passed by the Additional Chief Judicial Magistrate No.1, Ajmer, whereby charges were framed against the petitioner for offences under Sections 420, 467, 468, 471, 120B IPC, be set aside alongwith the order dated 14.12.2016 passed by the Special Judge, SC/ST (Prevention of Atrocities Cases), Ajmer whereby order framing charges was affirmed in revision preferred by the accused petitioner.
In the present case, FIR was lodged by Paras Chand Lalwani, complainant-respondent No.2. In the FIR the complainant has stated that his brother Tara Chand Lalwani, his wife Premlata Lalwani and his son Vikas Lalwani at relevant time were owner in (2 of 7) [CRLMP-5537/2017] possession of six plots in Sant Kewalram Colony, Ramnagar Pancholi Chauraha, Ajmer. Total area of the plots was 3000 mtr. To cut the long story short, it is case of the complainant that one Jitendra Singh who was recorded as Khatedar had sold the above plots by way of registered sale deed in favour of family members of the complainant. It was further stated that the said purchase was not reflected in the revenue records and Jitendra Singh who was recorded Khatedar inspite of sale deeds executed continued to be shown as owner of the said plots being Khatedar in the revenue records. Jitendra Singh died. He was survived by his son Vijay Singh. Vijay Singh executed power of attorney in favour of one Chandra Singh.
On the basis of entries made in the revenue records, Chandra Singh being power of attorney of Vijay Singh son of Jitendra Singh, sold the land in dispute to the present petitioner Ummed Jadam. Petitioner had purchased the land on 6.4.2009 vide a registered sale deed. The complainant made a grievance that Vijay Singh through his attorney Chandra Singh was not competent to sell the land in dispute as the said land was already sold by Jitendra Singh, father of Vijay Singh, to the family members of Paras Chand Lalwani, complainant-respondent No.2.
Learned counsel for the accused-petitioner has submitted that in the present case, sale deed executed in favour of the petitioner is neither forged nor a fabricated document. Learned counsel contends that it is admitted fact that Chandra Singh being power of attorney of Vijay Singh son of Jitendra Singh, had sold the land in dispute and in the revenue records, Vijay Singh was recorded as the Khatedar of the property being son of Late Jitendra Singh, original Khatedar. Learned counsel submits that (3 of 7) [CRLMP-5537/2017] merely because of sale of land in dispute to family of Paras Chand Lalwani, which was not recorded in revenue records, the petitioner cannot be fastened with a criminal liability. It is urged that being bonafide purchaser, the petitioner checked the revenue records and thereafter purchased the land in dispute.
Learned counsel for the petitioner has relied upon Mohammed Ibrahim & Ors. v. State of Bihar & Anr., (2009) 8 SCC 751, wherein the Supreme Court has held as under:-
"7. The question that therefore arises for consideration is whether the material on record prima facie constitutes any offences against the accused. The contention of the appellant is that if the allegations made in the complaint and FIR, even if accepted to be true in entirety did not disclose the ingredients of any offence of forgery (sections 467 and 471) or cheating (Section 420) or insult (Section 504) or wrongful restraint (Section 341) or causing hurt (Section 323) and there was no other material to show any offence and therefore, their application ought to have been accepted.
8. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. See: G. Sagar Suri v. State of U.P. 2000 (2) SCC 636 and Indian Oil Corporation v. NEPC India Ltd. 2006 (6) SCC 736. Let us examine the matter keeping the said principles in mind.
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.
(4 of 7) [CRLMP-5537/2017]
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 practising deception, or from a person not in control of his senses.
15. 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.
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 bonafide 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.
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, (5 of 7) [CRLMP-5537/2017] 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.
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." Admittedly, in the present case neither any fraud has been committed nor, any forged document has been prepared. In fact, any person who is cheated is the present petitioner Ummed Jadam as he has paid sale consideration to Chandra Singh, power of attorney of Vijay Singh, even though Vijay Singh was not owner of (6 of 7) [CRLMP-5537/2017] the property as his father Jitendra Singh had already sold the property to the family members of Paras Chand Lalwani, complainant-respondent No.2.
In the case of Mohammed Ibrahim & Ors. (supra), in Paras 23 and 24, the Supreme Court further observed as under:-
"A clarification
23. 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 the 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.
24. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract."
Since title of family of Paras Chand Lalwani remained intact and sale deed by Chandra Singh, power of attorney of Vijay Singh, was void as there was no valid title in their favour, the petitioner has been cheated. Rights of ownership and possession of family members of Paras Chand Lalwani complainant-respondent No.2 in no way were affected because of sale deed by the person in favour of the petitioner who was not owner of the property and was not having title to sell the land.
Consequently, present petition is accepted and charges framed against the petitioner only vide order dated 19.2.2013 by the Court of Additional Chief Judicial Magistrate No.1, Ajmer, are set aside. Petitioner is discharged from Criminal Case (7 of 7) [CRLMP-5537/2017] No.486/2012 (212/2010), as a consequence thereof, the order passed by the revisional court below is also set aside.
(KANWALJIT SINGH AHLUWALIA),J Govind/