Madras High Court
J.Mullai vs State Rep. By on 7 September, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 07.09.2018
Reserved on : 30.08.2018
Pronounced on : 07.09.2018
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD).Nos.14827 of 2012 and
20186 of 2013
and
M.P(MD).Nos.1 of 2012 and 1 of 2013
J.Mullai ..Petitioner/A1 in
Crl.O.P.No.14827/12
P.Periyasamy ..Petitioner/A2 in
Crl.O.P.No.20186/13
Vs.
1.State rep. by
The Inspector of Police,
District Crime Branch,
Karur.
2.A.Panneerselvam ..Respondents in both
petitions
PRAYER: These Criminal Original Petition have been filed under Section 482 of
Criminal Procedure Code, to call for the records the records relating to
impugned FIR in crime No.17 of 2012 on the file of the Inspector of Police,
District Crime Branch, Karur and quash the same.
For Petitioners : Mr.T.Antony Arul Raj for petitioner
in Crl.O.P.No.20186/2013
Mr.V.Kathirvelu senior counsel
for Mr.A.N.Ramanathan
for petitioner in Crl.O.P.(MD) No.
14827/2012
For Respondents :Mr.P.G.Ohm Chairma Prabhu,
G.A.(Crl. Side) for R1
Mr.S.Ravi for R2
:ORDER
These quash petitions are filed to quash the first information report registered against the petitioners/A1 and A2 for the offences under Section 120(b), 465, 468 , 471 and 420 of I.P.C., alleging that A1 has filed a suit in O.S.No.54 of 2011 on the file of the District Court, Karur for declaration and recovery of possession as against 88 defendants, in which, the second respondent/defacto complainant is shown as D1. In the said suit proceedings, a photocopy of Inam Fair Register has been filed as document No.2, which is alleged to be a forged one. According to the second respondent/defacto complainant, one Sakthivel, who is working as Clerk in the office of the suit temple, in another suit, deposed that the said document was written by A2. Further the defacto complainant obtained information under the Right to Information Act from the Collector, which would show that the said document was not issued by the Collectorate and it is a forged one. On such complaint, the first respondent registered a case for the offences as stated above against the petitioners in both the petitions. Therefore, the petitioner filed individual applications for quashing the said first information report.
2.The learned senior counsel appearing for the petitioner in Crl.O.P.(MD) No.14827 of 2012 and the learned counsel appearing for the petitioner in Crl.O.P.(MD) No.20186 of 2013 submitted that the alleged document viz., xerox copy of Inam Fair Register has been filed along with the plaint and it is copied from the original register and nothing forged by the petitioner. The said document was also certified by the Collector, Karur District and it was not issued by Collectorate of Karur District. Further, the petitioner/A1, in the capacity of Assistant Commissioner/Executive Officer under the Hindu Religious and Charitable Endowment Board, filed the suit to recover the temple properties. In respect of said suit, there is no wrongful gain to the petitioner/A1 or wrongful loss to the department.
3.They would further submit that the present complaint has been lodged only to escape from the recovery proceedings of the temple property admeasuring 18.75 acres and 7.43 acres from the defacto complainant/second respondent herein. It is nothing but clear abuse of process of law. The petitioners are public servants appointed by the Government and while discharging their public duties in good faith, they cannot be penalised by way of criminal proceedings. Moreover, there is absolutely no necessity for them to commit forgery, falsification and to cheat the second respondent and personally they have no grievance against the second respondent herein.
4.They would further submit that even assuming that the alleged Inam Fair Register was not issued by the Collector of Karur District, it never be stated that it is a forged and fabricated one. It is seen from the records that both the documents produced by the petitioner as well as the second respondent are one and the same and the contentions are also one and the same. Therefore, the first information report is nothing but an abuse of process of law and it is liable to be quashed.
5.The learned Government Advocate (criminal side) appearing for the first respondent State would submit that the investigation is in initial stage and the investigation is going on and hence, the criminal original petitions are liable to be dismissed.
6.The learned counsel appearing for the second respondent would submit that the said Inam Fair Register was prepared by A2 and it is proved by the Clerk of the petitioners' office, who deposed in O.S.No.366 of 2009 on the file of the District Munsif, Karur. Therefore, the petitioners committed forgery and fabricated the said documents and they are liable to be prosecuted. Further, it is also proved by the information furnished under the Right to Information Act by the Collectorate of Karur District that the said Inam Fair Register was not issued by the Collectorate of Karur District. The second respondent would further submit that the plaint in O.S.No.54 of 2011 has been struck off and as such, the entire suit is filed without any merits. Further, the present case has been registered and the investigation is in the initial stage and at this juncture, it cannot be quashed and prayed for dismissal of the petitions.
7.Heard the learned senior counsel appearing for the petitioner in Crl.O.P.(MD) No.14827 of 2012 and the petitioner in Crl.O.P.(MD) No.20186 of 2013 and the learned Government Advocate (criminal side) appearing for the first respondent State and the learned counsel appearing for the second respondent/defacto complainant and also perused the materials available before this Court.
8.The petitioner/A1 is an Assistant Commissioner and Executive Officer of H.R. and C.E. department of Arulmighu Kalyana Venkatramanaswamy Temple, Thanthonimalai, Karur District. The Idol Sri Kalyana Pasupatheeswaraswamy, Sri Kalyana Pasupatheeswarasamy Devasthanam, Karur filed a suit in O.S.No.54 of 2011 on the file of the District Judge, Karur for declaration and recovery of its property from 88 defendants, in which, the second respondent was shown as 1st defendant. The petitioner, being an Executive Officer of the said temple, represented the plaintiff temple. Therefore, she has nothing to do with the plaint and its averments and the documents filed along with the suit. Moreover, the said suit was laid in the year 2011 and the alleged Inam Fair Register was obtained only on 20.05.2009. Admittedly, the petitioner joined as Executive Officer of the plaintiff temple only on 28.07.2011. Therefore, she has nothing to do with the said documents and only on instructions of temple administering committee, the suit has been laid in which the petitioner represented on behalf of the temple. As far as the second accused is concerned, while he was working as Executive Officer of the plaintiff temple, who had written the Inam Fair Register.
9.According to the second respondent, the second accused, who was working as Executive Officer of the plaintiff temple, had written and prepared the said Inam Fair Register and fabricated and on that basis only, the said has been laid. It is very curious to note that the second accused also retired from service as early as in the year 1996 itself. The said allegation made only on the basis of the evidence of one Sakthivel, who was a writer of the plaintiff temple, deposed to that effect that the said document was prepared by the second accused. Therefore, both the accused were not in service, at the time of alleged occurrence took place viz., on 20.05.2009, the date of certifying the document by the Collectorate Office, Karur District.
10.Further, it is seen from both the documents submitted by the plaintiff as well as the second respondent herein are one and the same and nothing was forged and fabricated by the petitioners herein. Further, the information furnished to the second respondent by the Collectorate of Karur District would also stated that the documents vide reference No.T.D.1560 was not issued from the office of the Collector, Karur District. The information never state that the document was forged or fabricated one. It is also seen from the Inam Fair Register produced by the second respondent, the contents are one and the same and nothing has been fabricated or forged by the petitioners.
11.Moreover, as stated above, the petitioners are representing on behalf of the temple. The petitioners discharged their duty in good faith and they have no personal vendetta or personal interest in the suit properties. It is clearly shows that only to escape from the proceedings of recovery of the temple property, the second respondent lodged a complaint that too against the petitioners on personal capacity. It is also curious to note that the suit has been laid against the second respondent and also totally against 88 persons. Except the second respondent, no other persons alleged that the said document was fabricated or forged one by the petitioners. Therefore, the present complaint is nothing but an abuse of process of law and it has no legs to stand further.
12.Further, it is seen from the allowing the rejection of plaint, it was allowed on the ground that the suit has been filed without due permission from the Commissioner of H.R. and C.E. Department, Therefore, it was allowed only on technical ground and not on merits. The said order has nothing to do with the present criminal case and in any way would not support the case of the second respondent. Moreover, as against the said order, the plaintiff temple also filed appeal suit before this Court and it is pending in A.S.(MD) SR.No.25270 and 25271 of 2018. Further, the petitioner/A1 never filed the suit and the alleged document on her personal capacity and both the petitioners have no wrongful gain or wrongful loss to anybody. Moreover, the petitioner/A1 has been joined as Assistant Commissioner/Executive Officer of the temple only on 07.07.2011. The alleged document admittedly according to the second respondent was forged and fabricated on 20.05.2009.
13.The ingredients of offences under Section 463, 468, 471 and 420 of I.P.C. are as follows:
?463. Forgery ?Whoever makes any false documents or part of a document 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.
468. Forgery for purpose of cheating ? Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document ? 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.
420. Cheating and dishonestly inducing delivery of property ? Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.?
14.It is relevant to cite the judgment of this Court reported in 2011(1)MWN (Cr.) 128 ? R.Lakshminarayanan V. D.Gurumurthy, wherein this Court has held as follows:
?11.The only allegation against the petitioners is that they have hatched a Criminal conspiracy during the year 1999 to defraud the respondent. In Mohd.Ibrahim V. State of Biharm 2009(3) SCC (Crl.) 929, the Supreme Court has dealt in detail on the provisions of Sections 467, 471 and 420 of IPC, the Apex Court has held as follows:
?16.here 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, 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. ?
Further, in the decision reported in (2011) 2 MLJ (Crl.) 365 (SC) ? V.P.Shrivastava V. Indian Explosives Ltd., the Apex Court has held as follows:
?34.In the instant case, there is nothing in the complaint which may even suggest remotely that the IEL had entrusted any property to the appellants or that the appellants had dominion over any of the properties of the IEL, which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 of the IPC, punishable under Section 406 IPC.
35.Having come to the conclusion that no prima facie case had been made out against the appellants in respect of the alleged offences under Sections 420 and 406 IPC, the question of alleged conspiracy between the appellants does not arise. Nevertheless, in order to bring home the charge of conspiracy within the ambit of Section 120B of the IPC, it is necessary to establish that there was an agreement between the appellants for doing an unlawful act.
The complaint lacks any such substance.?
Further, in the decision reported in (2010) 1 MLJ (Crl.) 1095 (SC) ? Devendra V. State of U.P., the Hon'ble Apex Court has held as follows:
?15.`Cheating' has been defined in Section 415 of the Indian Penal Code to mean:
"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 9 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 and Anr. [(2009) 3 SCC 78], this Court opined:
"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 intention at the time of making 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 absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal Code can be said to have been made out."
10 It is, therefore, evident that a misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating, although in some cases, an intention to cheat may develop at a later stage of formation of the contract.
17.In Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr.[(2000) 4 SCC 168], this Court held:
"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.
15. 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 to 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 11 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 Corporation v. NEPC India Ltd. and Ors. (2006) 6 SCC 736, Veer Prakash Sharma v. Anil Kumar Agarwal and Anr. 2007 (9) SCALE 502, V.Y. Jose (supra) and Ravindra Kumar Madhanlal Goenka & Anr. v. M/s. Rugmini Ram Raghav Spinners & Anr. 2009 (6) SCALE 162] 23.
18.Section 463 of the Indian 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 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. to 26. ................
27. Mr. Das submits that a wrong committed on the part of a person may be a civil wrong or a criminal wrong although an act of omission or commission on the part of a person may give rise to both civil action and criminal action. A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.
28.Furthermore, in a case of this nature where even, according to Mr. Das, no case has been made out for taking cognizance of an offence under Section 420 of the Indian Penal Code, it was obligatory on the part of the learned Chief Judicial Magistrate to apply his mind to the contents of the chargesheet. Such application of mind on his part should have been reflected from the order. [See State of Karnataka and Anr. v. Pastor P. Raju (2006) 6 SCC 728 and Pawan Kumar Sharma v. State of Uttaranchal, Criminal Appeal No. 1692 of 2007 decided on 10th December, 2007].
29.We, however, must place on record that we have not entered into the merit of the dispute as the civil suit is pending. The same has to be determined in accordance with law. We would request the court concerned to consider the desirability of the disposing of civil suit as expeditiously as possible. The appeal is allowed with the aforementioned directions.? Further, the Hon'ble Apex Court in the judgment reported in (2010) 1 MLJ (Crl) 840(SC), has held as follows:
?18. The last offence which is alleged against the appellant is Section 471 IPC. This section is not applicable in the case of the appellant for the simple reason that we have already found that there was no dishonest intention on the part of the appellant nor had she acted fraudulently. This Section applies only in case of the use of a forged document as a genuine document. Since we have found that there is no element of forgery at all, there would be no question of there being any valid allegation against the appellant.?
15.It is seen from the above, the ingredients of any of the offence as alleged by the prosecution would not made against the petitioner. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In the absence of such culpable intention, no offence under Section 420 of the Indian Penal Code been made out against the petitioner. Insofar as the allegation of forgery, the petitioner admittedly did not commit any forgery on his purchase. While making of a false document so as to support any claim over title would constitute forgery. What would amount to making of a false document is specified in Section 464 of I.P.C., to execute a document with the intention of causing it to be believed that such document interalia was made by the authority of a person by whom or by whose authority he knows that it was not made.
16.Reading of the above would show that no ingredients of the said offences would attract against the petitioners and no offence made out against them. Further, the offence under Section 120(B) of I.P.C. is only conspiracy. As stated in earlier paragraphs, there is absolutely no plan among the petitioners to do the said crime. Since, the second accused was admittedly retired from service even in the year 1996 and the first accused joined in the said post only on 07.07.2011. Therefore, no offences are made out against the petitioners and the first information in crime No.17 of 2012 on the file of the first respondent police is liable to be quashed.
17.In view of the above, these criminal original petitions are allowed and the first information in crime No.17 of 2012 on the file of the first respondent police registered against the petitioners is quashed.
Consequently, connected miscellaneous petitions are closed.
To
1.The Inspector of Police, District Crime Branch, Karur.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.