Om Prakash vs State Of Himachal Pradesh & Others on 26 February, 2024

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Himachal Pradesh High Court

Om Prakash vs State Of Himachal Pradesh & Others on 26 February, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 293 of 2020 Reserved on: 09.01.2024 .

Date of Decision: 26th February, 2024 Om Prakash ....Petitioner Versus State of Himachal Pradesh & others.

....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?

For the Petitioner : Mr. B.P. Sharma, Senior Advocate with Mr. Arun Kumar, Advocate.

For the Respondents : Mr. R.P. Singh, Deputy Advocate General, for the respondent No.1- State.

Mr. R.K. Bawa. Senior Advocate with Mr. Ajay Kumar Sharma, Advocate, for respondents No. 2 and 3.

Rakesh Kainthla, Judge Informant, respondent No.3, a Director of respondent No.2 made a complaint to the police for the commission of offences punishable under Sections 420, 465, 467, 471 and 120-B of IPC. It was asserted that the informant is a Director of a Company manufacturing Pharmaceutical products under the Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 2 name and style of M/s Cure Healthcare Pharmaceuticals Private Ltd. at Village Raipur, P.O. Deothi Tehsil and District Solan, H.P. Accused Om Prakash (present petitioner) is owner in possession .

of the land measuring Khata Khatauni No. 4/4 min, Khasra No. 191/111/88 measuring 21-2 bighas situated at Mauza Raipur Pargana Bonchali, Tehsil and District Solan, HP. The complainant executed a Lease Deed of the land measuring 2 Bighas 2 Biswas being part of Khasra No. 191/111/88 adjoining the land bearing Khasra No. 191/111/88/1 measuring 1 Bigha, 1 Biswa, which was already under lease with the Company executed by Tirath Ram and Nand Lal Sharma on 28.11.2013 before the sub-Registrar Solan, H.P. Lease Deed No. 761 /2017 dated 24.4.2017, was duly registered with the Sub Registrar Solan, for 31 years till 10.11.2048 on the monthly rent of ₹21,000/-. It was agreed that there would be an increase of the lease money to the extent of 10% after every three years of the lease period. The possession was already transferred and the rent was being paid to Om Prakash. Om Prakash in connivance with one Akash son of Rajinder Singh, Resident of A-1, 103, Hill View Apartment, Baddi, Tehsil Baddi, District Solan, H.P. executed the cancellation deed. Akash represented himself as an authorized representative of the ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 3 Company, whereas he had no such authority. He cheated the Company by conspiring with the accused. Akash is not an employee of the Company and he could not have signed any paper .

or document on behalf of the Company. The owner wanted to eject the Company illegally from the premises despite the receipt of the lease amount and the Cancellation Deed was executed to achieve this purpose. The owner threatened the Company to vacate the premises. The informant made enquiries from the Office of the Sub Registrar Solan and found that the lease was cancelled. No intimation of cancellation of the Lease Deed was given to the Company. The Company had to suffer due to the illegal cancellation of the Lease Deed. The police registered F.I.R. No. 26 of 2019 at Police Station Sadar, District Solan, H.P. and conducted the investigation.

2. The petitioner filed the present petition seeking for quashing of F.I.R. No. 26 of 2019 and the consequent proceedings arising out of the same. It was asserted that the petitioner is an agriculturist. He is an owner in possession of land measuring 19 Bighas, 12 Biswas, situated in Mauza Raipur, Tehsil & District Solan, H.P. comprised in Khata Khatoni No. 4 Min/4, Khasra No. 191/111/18. A structure of 4 storeyed building was handed over to ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 4 the Company vide Rent Agreement dated 11.09.2015, for a monthly rent of ₹25,000/-. Akash Jinta, Vishal Mittal and R.R. Paul approached the petitioner in April 2017 and represented .

themselves to be the Officers of the Company. They got a Lease Deed drafted on 24.04.2017, in which a lease of 3 Bighas, and 3 Biswas of land was executed in favour of the Company for 31 years at the monthly rent of ₹21000/-. 2 Bighas, 2 Biswas of land was leased since 1 Bigha 1 biswa land with four-storeyed construction was already leased in favour of the Company on a monthly rent of ₹ 25000/-. There was no need to create any additional Lease Deed of 2 Bighas, 2 Biswas of land that too by reducing the rent. It was mentioned in condition No.8 that the lessee would obtain permission from the Government under the H.P. Tenancy and Land Reforms Act. Akash Jinta came to the petitioner and told him on 3.12.2018, that the Company could not obtain permission to get the land on the lease; therefore, the Lease Deed dated 24.04.2017, registered with the Sub Registrar, Solan was to be cancelled. The Company and its two Directors filed a Civil Suit for declaration against the petitioner. Chaggan Lal, Director of the Company, filed an F.I.R. against the petitioner and other persons. A false story was propounded in the Civil Suit and the F.I.R. The dispute ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 5 between the parties is civil. The Company and its Directors are compelling the petitioner to hand over the land. The allegations contained in the F.I.R. do not make a case for the commission of .

offences punishable under Sections 420, 465, 467, 471 and 120-B of IPC. There is no mens rea. Hence, it is prayed that the present petition be allowed, F.I.R. and consequent proceedings arising out of the F.I.R. be quashed.

3. The State filed a reply to the petition reproducing the contents of the F.I.R. It was asserted that various documents were taken in possession during the investigation. It was found that the Lease Deed was executed between Om Prakash, Tirth Ram and Nand Lal Sharma, vide registration No. 155 in favour of M/S Curehealth Pharmaceuticals Pvt Ltd. Om Prakash and Tirth Ram are brothers. Om Prakash signed the Lease Deed as Lessorand Tirth Ram signed the deed as Lessee being one of the Directors of M/S Curehealth Pharmaceutical Pvt Ltd. Om Prakash and Tirth Ram cancelled the Lease Deed on 10.09.2015, vide Cancellation Deed No. 153. A rent Agreement dated 30.03.2017 was executed between Tirth Ram and Om Prakash for a rent of ₹21,000/-per month. Om Prakash again executed a Lease Deed with Akash Jinta on 24.04.2017. Akash Jinta signed the Lease Deed representing ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 6 himself as the authorized signatory of M/S Curehealth Pharmaceutical Pvt Ltd. A reference was made to the Lease deed dated 28.11.2013, which was already cancelled on 10.09.2015. Only .

Tirth Ram and Nand Lal were authorized to sign the documents on behalf of the Company vide resolution dated 30.05.2015. This resolution was passed after the execution of the Lease Deed by Akash Jinta. Tirth Ram resigned from the post of Director on 05.06.2017. Jai Pal Mittal through his Power of Attorney Vishal Mittal and Managing Director Jitender Dua signed one Memorandum of Understanding (MOU) inducting Devi Dayal and Yashpalas partners. Akash Jinta cancelled the Lease Deed No. 2582/2018 on 03.12.2018. He had represented himself as an authorized signatory of M/S Curehealth Pharmaceuticals Pvt Ltd.

Om Prakash, Tirth Ram and Nand Lal started the Company under the name and style of M/S Curehealth Pharmaceuticals Pvt Ltd.

Om Prakash gave his land to Tirth Ram. Tirth Ram and Nand Lal obtained a loan of Rupees Nine Crores from Dena Bank, Solan.

Jitender Dua, Chaggan Lal and Anil Kumar joined as Directors.

Tirth Ram and Nand Lal resigned in the year 2017. Akash Jinta was not legally authorized by any Director to sign the documents as an authorized signatory. Stamp duty on the Lease Deed was ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 7 paid by Tirth Ram. Om Prakash, Tirth Ram and Akash Jinta in connivance with each other acted unlawfully to cause the loss to the complainant. Therefore, it was prayed that the present .

petition be dismissed.

4. Respondents No. 2 and 3 filed a separate reply making preliminary submissions regarding the lack of maintainability and the complaint disclosing the commission of cognizable offences. The contents of the petition were denied on merits. It was asserted that respondent No.2 is a Company registered under the Companies Act, which deals in the business of manufacturing Pharmaceutical products under the name and style of M/S Curehealth Pharmaceutical Pvt Ltd. The Lease Deed dated 24.04.2017 was executed as per the law by the parties including the petitioner. It was admitted that a Civil Suit was filed by respondents No. 2 and 3. The petitioner concocted a false story to save himself from the lease amount to be paid to the petitioner as per the agreement. There is sufficient material on record to prosecute the petitioner. The pendency of the Civil Suit has nothing to do with the commission of the crime. Hence, it was prayed that the present petition be dismissed.

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5. Separate Rejoinders denying the contents of the replies and affirming those of the petition were filed.

6. I have heard Mr B.P. Sharma, learned Senior Counsel assisted by Mr Arun Kumar, learned counsel for the petitioner, Mr R.P.Singh, learned Deputy Advocate General for respondent No.1 and Mr R.K.Bawa, Senior learned Counsel assisted by Ajay Kumar Sharma, learned counsel for respondents No. 2 and 3.

7. Mr. B.P. Sharma, learned Senior Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He was cheated because the rent was reduced from ₹ 25,000/- to ₹ 21,000/-, and the leased area was increased.

The petitioner had dealt with Akash Jinta earlier and he had no means of knowing that the authority of Ankash Jinta was revoked.

Therefore, he prayed that the present petition be allowed and F.I.R. be quashed.

8. Mr. R.P.Singh learned Deputy Advocate General for respondent No.1/State submitted that Akash Jinta had no authority on behalf of the Company, yet he represented himself as its authorized signatory. He executed a Cancellation Deed ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 9 harming the Company; therefore, he prayed that the present petition be dismissed.

9. Mr. R.K. Bawa, learned Senior Counsel for respondents No. 2 and 3 submitted that Akash Jinta represented himself as the authorized signatory of the Company, whereas he had no authority to represent the Company. Thus, he impersonated himself as the authorized signatory of the company and executed r to a false Cancellation Deed to cause harm to the Company.

Allegations in the F.I.R. constitute the commission of cognisable offences and the same should not be quashed. Therefore, he prayed that the present petition be dismissed.

10. I have given considerable thought to the submissions at the bar and have gone through the records carefully.

11. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765:

(2023) 7 SCC 711 wherein it was observed at page 716:-

17. The principles to be borne in mind aboutthe quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to every precedent is unnecessary.

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However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander [Amit .

Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) "27. ...27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed to consider whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.

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27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar .

is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith predominantly give rise to and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material based on which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

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27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence .

was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the chargesheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debitojustitiaei.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."

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12. Similar isthe judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603, wherein it was observed:-

.

26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the .

accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 15 FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."(emphasis supplied) .

13. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed:

10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of the trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 16 the accused for which the accused is required to be tried or not".

14. This position was reiterated in Abhishek v. State of M.P. .

2023 SCC OnLine SC 1083 wherein it was observed:

12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined.

In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint.

15. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 17 F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.

16. It was specifically stated in the F.I.R. No. 26 of 2019 (Annexure P-5) that the Company had executed Lease Deed No. 2272/2013 dated 18.11.2013 and Lease Deed dated 761 of 2017, dated 24.04.2017. It was denied in paras 1 and 2 of the reply on merits filed by respondents No. 2 and 3 that the Lease Deed dated 24.04.2017, was executed by misrepresentation on behalf of respondent No.2-Company. It was asserted that the lease deed was executed as per the law by the parties including the petitioner.

All facts were within the knowledge of the petitioner at the time of execution of the Lease Deed. Thus, it is apparent that the Lease Deed dated 24.04.2017 is not in dispute. This Lease Deed (Annexure P-2) was executed between Om Prakash and M/S Curehealth Pharmaceutical Pvt Ltd through its authorized representative Akash son of Sh. Rajinder Singh, resident of A-1, 103, Hill View Apartments, Baddi, Tehsil Baddi, District Solan, H.P. The disputed cancellation Deed (Annexure P-3) was also executed between Om Prakash and M/S Curehealth Pharmaceuticals Pvt Ltd. through its authorized person Akash ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 18 son of Sh. Rajinder Singh, resident of A-1, 103, Hill View Apartments, Baddi, Tehsil Baddi, District Solan, H.P. Thus, it is apparent that both the Deeds one on which the complainant is .

relying and the Cancellation Deed which the complainant is disputing were executed by Aakash son of Rajinder Singh.

17. The State has filed a reply asserting that a resolution authorising Tirth Ram and Nand Lal to sign on behalf of the Company was passed on 30.05.2015. This was done after the execution of the Lease Deed by Aakash Jinta. The Cancellation Deed (Annexure P-3) was executed on 03.12.2018 and Aakash Jinta has no authority to execute the cancellation deed because the authority was revoked by passing the resolution, nominating Tirth Ram and Nand Lal as the only person authorized to sign on behalf of the Company. Nothing has been asserted either in the F.I.R. or in the reply that this resolution was brought to the notice of the petitioner. Therefore, the plea of the petitioner, that he was dealingwith Aakash Jinta, who had executed the Lease Deed and told him specifically that the Lease Deed was to be cancelled because the permission was not granted by the State had to be accepted as correct.

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18. The F.I.R. was filed for the commission of offences punishable under Sections 420, 465, 467, 471, and 120-B IPC. It was submitted that the representation made by Akash Jinta that .

he was an authorized agent of the Company was falseand amounted to impersonation. Further, he had no authority to execute the Cancellation Deed and the documents executed by him were forged. These submissions cannot be accepted. In Devendra v. State of U.P., (2009) 7 SCC 495, a sale deed was executed by a co-

sharer claiming title over the property which he did not have. It was laid down by the Hon'ble Supreme Court that no representation was made to the other owners and the representation, if any, was made to the purchaser. In these circumstances, the ingredients of the cheating were not satisfied.

It was observed:-

14. It was, however, submitted that because ofthe execution of a deed of sale claiming title over the property, which the appellants were not entitled to, the respondent complainant had been cheated. It is difficult to accept the said contention. The appellants had not made any representation to Respondent 2. No contract and/or transaction had been entered into by and between the complainant and the appellants.

15. "Cheating" has been defined in Section 415 of the Penal Code to mean:

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"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 retain 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'."

16. In V.Y. Jose v. State of Gujarat [(2009) 3 SCC 78 : (2009) 1 SCC (Cri) 996] this Court opined: (SCC p. 83, para 14) "14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:

(i) deception of a person either by making a false or misleading representation or by other action or omission;

(ii) fraudulently or dishonestly inducing any person to deliver any property, or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intentions at the time of making a promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making the initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out."

It is, therefore, evident that a misrepresentation from the very beginning is a sine qua non for the constitution of an offence of cheating, although in some cases, an intention ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 21 to cheat may develop at a later stage of the formation of the contract.17. In Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786] this Court held: (SCC pp. 176-77, paras 14-15) .

"14. On a reading of the section, it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

r15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

[See also Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] (SCC p. 758, para 35), Vir Prakash Sharma v. Anil Kumar Agarwal [(2007) 7 SCC 373 :

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(2007) 3 SCC (Cri) 370 : (2007) 9 Scale 502] (SCC pp. 376-

77, para 12), V.Y. Jose [(2009) 3 SCC 78 : (2009) 1 SCC (Cri) 996] and Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd. [(2009) 11 SCC 529 : (2009) 6 .

Scale 162] ]

19. It was further held that a document showing that the seller had 1/3rd share in the joint property although he had no such share does not constitute forgery. It was observed:-

18. Section 463 of the Penal Code reads as under:

"463. Forgery.--Whoever makes any false 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, 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."

According to Mr Das, making of a false document so as to support any claim over title would constitute forgery within the meaning of the said provision and as a document was created for the purpose of showing one-third share in the joint property by the appellants although they were not entitled to therefor, they must be held to have committed an offence.

19. Making of any false document, in view of the definition of "forgery" is the sine qua non therefor. What would amount to the making of a false document is specified in Section 464 thereof. What is, therefore, necessary is to execute a document with the intention of causing it to be believed that such document inter alia was made by the authority of a person by whom or by whose authority he knows that it was not made.

20. The appellants are the owners of the property. They have executed a sale deed. Execution of the deed of sale is not ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 23 denied. If somebody is aggrieved by the false assertions made in the said sale deed, it would be the vendees and not the co-sharers. The appellants have not been alleged to be guilty of creating any false document.

20. Similarly, it was held in Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751, that execution of the sale deed by a person by describing himself as an owner does not amount to forgery. It was observed:-

9. 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 the Penal Code.

10. Section 467 (insofar 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.

11. 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. Whoever makes any false documents with intent to cause damage or injury to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into an express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.

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12. 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 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 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.

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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 they occur were substituted by the words 'electronic signature' by Amendment Act 10 of 2009.]"

(emphasis supplied)

13. The condition precedent for an offence under Sections 467 and 471 is a 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 the 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 ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 26 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 the 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 the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the 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 the owner's behalf. When a person executes a document conveying a property describing it as his, there are ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 27 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 the 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, execution of such a 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.

21. It was further held in Mohd. Ibrahim's case (supra), that a Sale Deed executed conveying a property not owned by the seller may amount to cheating to the purchaser but not to any other person. It was observed:-

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:

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(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 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 ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 29 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 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.

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 a 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.

25. In Vimla (Dr.) v. Delhi Admn. [AIR 1963 SC 1572] This Court explained the meaning of the expression "defraud" thus: (AIR pp. 1576-77, para 14) "14. ... the expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 30 body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare .

cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."

The above definition was in essence reiterated in State of U.P. v. Ranjit Singh [(1999) 2 SCC 617: 1999 SCC (Cri) 293].

26. The Penal Code however defines "fraudulently", an adjective form of the word "fraud" in Section 25, as follows:

"25. 'Fraudulently'.--A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."

27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Section 24 as follows:

"24. 'Dishonestly'.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'."

28 [Ed.: Para 28 corrected vide Official Corrigendum No. F.3/Ed.B.J./149/2009 dated 6-10-2009.]. To "defraud" or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:

(i) Fraudulent removal or concealment of property (Sections 206, 421 and 424).

(ii) Fraudulent claim to property to prevent seizure (Section 207).

(iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210).

(iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243).

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(v) Fraudulent alteration/diminishing weight of the coin (Sections 246 to 253).

(vi) Fraudulent acts relating to stamps (Sections 255 to 261).

.

(vii) Fraudulent use of false instrument/weight/measure (Sections 264 to 266).

(viii) Cheating (Sections 415 to 420).

(ix) Fraudulent prevention of debt being available to creditors (Section 422).

(x) Fraudulent execution of deed of transfer containing false statement of consideration (Section

423).

(xi) Forgery making or executing a false document (Sections 463 to 471 and 474).

(xii) Fraudulent cancellation/destruction of valuable security, etc. (Section 477).

(xiii) Fraudulently going through the marriage ceremony (Section 496).

It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law unless that fraudulent act is specified to be an offence under the Code or other law."

22. In Mir Nagvi Askari Vs CBI 2009 (15) SCC 643 the accused was charged with making false entries in the record of the bank. It was laid down by the Hon'ble Supreme Court that making wrong entries by itself will not attract criminal liability unless it is proved that the document was false within the meaning of Section 464 of IPC. It was observed:-

"[229] A person is said to make a false document or record ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 32 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 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.

[230] The second criterion 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 criterion of the said section is also not applicable to the present case.

[231] 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 for the making of a false document.

[232] The learned Special Judge, therefore, in our opinion, erred in holding that the accused had prepared a false document, which clearly, having regard to the provisions of the law, could not have been done.

[233] Further, the offence of forgery deals with the making of a false document with the specific intentions enumerated therein. The said section has been reproduced below.

"463. Forgery.--Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury], to the public or any person, or to support any claim or title, or to cause any person to part with property, or to ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 33 enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

[234] However, since we have already held that the .

commission of the said offence has not been convincingly established, the accused could not have been convicted for the offence of forgery. The definition of "false document"

is a part of the definition of "forgery". Both must be read together. [Dr. Vimla v. Delhi Administration, 1963 Supp2 SCR 585]".

23. It was further held that in the absence of the document being forged a person cannot be convicted of the commission of an offence punishable under Section 471 of IPC. It was observed:-

"[235] Accordingly, the accused could not have been tried for an offence under Section 467 which deals with forgery of valuable securities, will etc. or Section 471, i.e., using as genuine a forged document or Section 477-A, i.e., falsification of accounts. The conviction of the accused for the said offences is accordingly set aside".

24. This question was also considered in Sheila Sebastian versus RJawaharaj &Anr ETC. 2018 (7) SCC 581 and it was held that unless the ingredients of Section 464 of IPC are satisfied a person cannot be convicted of the commission of an offence punishable under Section 465 of IPC. It was observed:-

"[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 at hand, there is no finding recorded by the trial Court that the ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 34 respondents have made any false document or part of the document/record to execute the 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 the 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 same".

25. It was laid down in Bandekar Bros. (P) Ltd. v. Prasad Vassudev Keni, (2020) 20 SCC 1 : (2022) 1 SCC (Cri) 626: 2020 SCC OnLine SC 707, that making false debit notes to claim the amount mentioned in them will not amount to forgery as is understood in law. It was observed:

"50. Section 463 IPC speaks of "forgery" as being the making of a "false document" or "false electronic record", or a part thereof, to do the various things that are stated in that section. Unless a person is said to make a false document or electronic record, Section 463 does not get attracted at all. The making of a "false document" is then dealt with in Section 464 IPC. On the facts of the present case, we are not concerned with the categories of false documents identified under the heads "Secondly" and "Thirdly" of Section 464. Shri Mishra states that the making of the debit notes by the respondents in order to falsely claim amounts owing to them would fall within the "First" category under Section 464.

51. The "First" category of Section 464 makes it clear that anyone who 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 or by the ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 35 authority of a person by whom or by whose authority he knows that it was not made, can be said to make a false document. Several judgments of this Court have held that assuming dishonesty or fraud, the second ingredient of the .

"First" category of Section 464 is that the document itself must be made by or by the authority of a person by whom or by whose authority the person who creates the forgery knows that it was not made. If the second ingredient is found missing, the offence of forgery is not made out at all. Thus, in Devendra v. State of U.P. [Devendra v. State of U.P., (2009) 7 SCC 495 : (2009) 3 SCC (Civ) 190 : (2009) 3 SCC (Cri) 461], this Court set out the following facts : (SCC p. 499, paras 5-6) "5. On or about 22-8-1997, a sale deed was executed by Appellants 1 and 2 in favour of Appellants 3 and 4.

On 24-8-2005, a suit was filed by Respondent 2 and others for cancelling the aforesaid deed of sale dated 22-8-1997, which was registered as Civil Suit No. 382 of 2005. The said suit is still pending in the Court of the learned Civil Judge (Junior Division), Ghaziabad. In the said suit, however, it was averred that Solhu had four sons whereas in Suit No. 135 of 1982, it was stated that Solhu had five sons. The appellants filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure before the Court of the Deputy District Magistrate (First Class), Ghaziabad praying for dismissal of Suit No. 135 of 1982. An application for impleadment was also filed by the appellants in Civil Miscellaneous Writ Petition No. 17667 of 1985.

6. On or about 21-9-2005, Respondent 2 filed an application in Police Station Kavinagar, Ghaziabad wherein the City Magistrate by an order dated 17-9- 2005 passed an order to hear the complainant and register a first information report. Thereafter, Respondent 2 filed a first information report at Police Station Sahni Gate on 21-9-2005. The appellants filed an application for quashing the said first information ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 36 report before the High Court. It was marked as Criminal Miscellaneous Writ Petition No. 10568 of 2005."

52. This Court held that the sale deed executed did not .

constitute a "false document" under Section 464 IPC as follows : (Devendra case [Devendra v. State of U.P., (2009) 7 SCC 495 : (2009) 3 SCC (Civ) 190 : (2009) 3 SCC (Cri) 461], SCC pp. 502-503, paras 18-20) "18. Section 463 of the Penal Code reads as under:

'463. Forgery.--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or 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.' According to Mr Das, making a false document so as to support any claim over title would constitute forgery within the meaning of the said provision and as a document was created for the purpose of showing one-third share in the joint property by the appellants although they were not entitled to therefor, they must be held to have committed an offence.

19. Making of any false document, in view of the definition of "forgery" is the sine qua non therefor.

What would amount to the making of a false document is specified in Section 464 thereof. What is, therefore, necessary is to execute a document with the intention of causing it to be believed that such document inter alia was made by the authority of a person by whom or by whose authority he knows that it was not made.

20. The appellants are the owners of the property. They have executed a sale deed. Execution of the deed ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 37 of sale is not denied. If somebody is aggrieved by the false assertions made in the said sale deed, it would be the vendees and not the co-sharers. The appellants have not been alleged to be guilty of creating any false .

document."

53. In Mohd. Ibrahim v State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929], it was held that the execution of a sale deed by somebody in his own name qua property which is not his does not constitute making a "false document" under Section 464 IPC, because he does not impersonate the owner or falsely claim to be authorised or empowered by the owner to execute the deed on the owner's behalf. The Court held :

(SCC pp. 756-57, paras 13-17) "13. The condition precedent for an offence under Sections 467 and 471 is a 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 the 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 ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 38 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; (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 with a document; or (iii) he obtained a document by practising 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 the owner's behalf. When a person executes a document conveying a property describing it as his, there are two ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 39 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 the 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.

26. In the present case, there is no whisper in the F.I.R.

that authority in favour of Akash was revoked by passing a resolution by the Board of Directors. This fact was only mentioned in the reply filed by the State. There is no whisper that the revocation was conveyed to the petitioner. It was only asserted that Akash was not authorized by the Company to do anything on behalf of the Company and if he had cancelled the Lease Deed he had cheated by misrepresentation. It was further asserted that ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 40 Akash had no authority to execute any document on behalf of the Company because he is neither an employee of the Company nor has any authority to execute the documents. If these allegations .

are accepted as correct and the reply filed by the State is taken out of consideration, the complainant cannot have any grievance.

Akash did not have any authority as per the complainant on behalf of the Company; therefore, he had no authority to execute the Lease Deed dated 24.04.2017. Thus, the Lease Deed, as per the averments, in the F.I.R. was without any authority, whose cancellation will not make any difference because a document executed without any authority has no existence. Hence, the whole case of the complainant projected in the F.I.R. if accepted as correct does not give rise to any criminal liability.

27. Reliance was also placed upon the status report submitted by the police, however, this status report/reply is silent regarding the knowledge of the present petitioner about the revocation of the authority and in the absence of such averment, the present petitioner cannot be held criminally liable.

28. It was asserted that the stamp duty of the Lease Deed was paid by Tirath Ram, which means that Om Prakash, Tirath ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 41 Ram and Akash Jinta were acting in connivance with each other. It is an admitted case that Tirath Ram was the Director of the Company. Hence, any payment made by him will be in the .

capacity of the Director, which clearly shows that Akash was acting on behalf of the Company having authority from one of the Directors to do so. Thus, this fact will not assist the respondents.

29. It was submitted that Tirath Ram and petitioner Om r to Prakash are brothers and the petitioner would have been aware of the resolution dated 30.05.2015. Firstly, there is no such averment and in the absence of the same, this submission cannot be accepted. Secondly, the copy of the resolution has not been placed on record to show that the petitioner was made aware of the passing of the resolution; therefore, not much advantage can be derived from this fact.

30. As per facts established on record that the Company had initially acted through Akash to get the Lease Deed executed and the Company again acted through Akash for cancellation of the Lease Deed. Therefore, in these circumstances, the criminal liability of the petitioner cannot be made out when he was dealing with the very person with whom he had dealt earlier.

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31. It was submitted on behalf of the Company that the judgments in Mohd. Ibrahim (supra)and Devendra's cases (supra) do not apply to the present case because there was a dispute .

between the co-owners in the cited judgments. This submission cannot be accepted. The Hon'ble Supreme Court was dealing with the proposition of law that if a person not being an owner executes the Sale Deed of the property by representing himself as owner whether forgery was committed or not. It was held that no forgery would be committed in these circumstances. It was further held that the purchaser can complain about cheating but no other person can make such a complaint because the representation was made to him and not to any other person.

Therefore, the submission that these judgments do not apply to the present case cannot be accepted.

32. It was submitted that the Company had suffered a loss because the Lease Deed executed in its favour was cancelled. Even this submission cannot be accepted. If Akash had no authority, as submitted, any Lease Deed/Cancellation will not affect the rights of the Company. Therefore, it cannot be accepted that the Company has suffered any loss by execution of the Cancellation Deed.

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33. It was submitted that the allegations in the FIR constitute the civil dispute and the informant had tried to change the same into a criminal dispute. Professor Glanville Williams .

explained in his celebrated book Learning the Law (Tenth Edition Steven and Sons) that the facts by themselves cannot determine civil or criminal liability. The same set of facts may give rise to criminal or civil liability. The distinction between the two is not the nature of the act but the nature of proceedings that are taken to seek the redressal. It was observed:

"The distinction between a crime and a civil wrong, thoughcapable of giving rise to some difficult legal problems, is in essencequite simple. The first thing to understand is that the distinctiondoes not reside in the nature of the wrongful act itself. This canquite simply be proved by pointing out that the same act may beboth a crime and a civil wrong. Occasionally at a bus station, thereis someone who makes a living by looking after people'simpediment a while they are shopping. If I entrust my bag to such a person, and he runs off with it, he commits the crime of theft and also two civil wrongs--the tort of conversion and a breach of his contract with me to keep the bag safe. The result is that two sorts of legal proceedings can be taken against him; a prosecution for the crime, and a civil action for the tort and the breach of contract. (Of course, the plaintiff in the latter action will not get damages twice over merely because he has two causes of action; he will get only one set of damages.) To take another illustration, if a railway signalman, to dumb forgetfulness a prey, fails to pull the lever at the right moment, and a fatal accident occurs on the line, his ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 44 carelessness may be regarded as sufficiently gross to amount to the crime of manslaughter, and it is also the tort of negligence towards the victims of the accident and their dependents and a breach of his contract with the Railway .

Executive to take due care in his work. It will be noticed that this time, the right of action in tort and the right of action in a contract are vested in different persons. These examples show that the distinction between a crime and civil wrong cannot be stated as depending upon what is done, because what is done may be the same in each case. The true distinction resides, therefore, not in the nature of the wrongful act but in the legal consequences that may follow. If the wrongfulact is capable of being followed by what are called criminal proceedings, that means that it is regarded as a crime (otherwise called an offence). If it is capable of being followed by civil proceedings that means that it is regarded as a civil wrong. If it is capable of being followed by both, it is both a crime and a civil wrong.

Criminal and civil proceedings are (in the normal case) easily distinguishable: the procedure is different, the outcome is different, and the terminology is different.

34. The Hon'ble Supreme Court also held in Randheer Singh v. State of U.P., (2021) 14 SCC 626: 2021 SCC OnLine SC 942, that a given set of facts may make out a civil wrong as well as the criminal offence and merely because the civil remedies available is no ground to quash the criminal proceedings. It was observed:

"34. The given set of facts may make out a civil wrong as well as a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the chargesheet so far as this appellant is concerned. The other accused Rajan Kumar has died."

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35. This position was reiterated in V.R. Dalal v. Yougendra Naranji Thakkar, (2008) 15 SCC 625, wherein it was observed:-

.

13. It may be true that in the event the court finds that the dispute between the parties is civil in nature, it may not allow the criminal proceedings to go on. But, no law, in our opinion, as such can be laid down as in a given case both civil suit and criminal complaint would be maintainable although the cause of action for both the proceedings is the same.

36. Hence, the F.I.R. cannot be quashed on the ground that the same discloses the civil liability because the Civil and Criminal liability can arise simultaneously.

37. Thus, the plea of the petitioner that the contents of the F.I.R. even if taken to be correct do not constitute the commission of any cognizable offence has to be accepted as correct. Hence, the continuation of the proceedings against the present petitioner will constitute an abuse of the process of the Court and harassment of the petitioner, which is not permissible.

38. No other point was urged

39. In view of the above, the present petition is allowed and F.I.R. No. 26 of 2019 dated 06.02.2019, registered at Police Station Solan Sadar, H.P., for the commission of offences punishable under Sections 420, 465, 467, 471 and 120-B is ordered to be ::: Downloaded on - 27/02/2024 20:30:12 :::CIS 46 quashed. Consequent to the quashing of FIR, criminal proceedings pending/initiated against the petitioner-accused in pursuance thereto, are also quashed.

40. Petition stands disposed of in the above terms, so also pending applications, if any.

41. Parties are permitted to produce a copy of this judgment, downloaded from the webpage of the High Court of Himachal Pradesh before the authorities concerned, and the said authorities shall not insist on the production of a certified copy but if required, may verify passing of the order from Website of the High Court.

(Rakesh Kainthla) Judge 26th Feburary, 2024.

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Om Prakash vs State Of Himachal Pradesh & Others on 26 February, 2024