Allahabad High Court
Munna Lal And 2 Others vs State Of U.P. And Another on 1 August, 2019
Author: Rajul Bhargava
Bench: Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 66 Case :- APPLICATION U/S 482 No. - 8408 of 2017 Applicant :- Munna Lal And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shiv Nath Singh,Satyam Singh Counsel for Opposite Party :- G.A.,Keshari Nandan Singh Hon'ble Rajul Bhargava,J.
1. Supplementary affidavit filed by learned counsel for the applicants is taken on record.
2. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of Complaint Case No.3610 of 2016 (Chaman Kumar Satyarthi v. Shiv Kumar and others), pending in the court of Additional Chief Metropolitan Magistrate, Court No.3, Kanpur Nagar as well as summoning order dated 12.8.2016.
3. Heard Sri Shiv Nath Singh, learned Senior Advocate assisted by Sri D.P.S. Chauhan, learned counsel for the applicants, Sri Keshari Nandan Singh, learned counsel for opposite party no.2 as well as learned A.G.A. for the State and perused the record.
4. In brief, the background of the case is that the opposite party no.2 moved an application under Section 156(3) Cr.P.C. before the C.M.M., Kanpur Nagar for lodging of F.I.R. against the applicants and two others, however, the same was treated as a complaint case by the Magistrate. It is alleged in the application that the cousin brother of opposite party no.2 and his wife Smt. Kamla Devi executed a sale deed of a joint property, a part of which belongs to his father by a registered sale deed on 18.12.2013 and besides their own share also sold 48 square yards of the land belonging to his father and, thus, committed forgery. It is further stated that the applicants who are the vendees of the aforesaid sale deed after hatching conspiracy committed forgery by executing unregistered sale deed of a part of House No.35 belonging to his father on which eight shops existed and thereafter extended threats to the tenants of the aforesaid shops and also attempted to get the tenants evicted from the same. In the aforesaid manner, the applicants and other co-accused have committed cheating and forgery and they are intended to take illegal possession over the rented shops belonging to his father. After recording statements under Sections 200 and 202 Cr.P.C. of the witnesses, the Magistrate summoned the applicants and other co-accused under Sections 419, 420, 468, 471 I.P.C. The applicants have challenged the impugned complaint and the summoning order on the ground that even if the entire allegations contained in the complaint and in the statements recorded under Sections 200 and 202 Cr.P.C. are accepted to be true on its face value, neither any offence of cheating nor of forgery is made out.
5. Before submitting legal submissions, learned Senior Advocate has submitted brief facts of the case in order to understand the entire controversy between the applicants and opposite party no.2. In para 9 of the affidavit, it is stated that the disputed House No.35 belonged to one Smt. Mohaniya and after her death the same devolved on her sons namely Heera Lal an Sunder Lal. The opposite party no.2, Chaman Kumar Satyarthi is the son of Sunder Lal, whereas, non-applicant, Shiv Kumar is the son of Heera Lal and both the brothers had half shares in the aforesaid house. The non-applicant, Shiv Kumar executed a sale deed of his share in favour of applicant no.3, Smt. Manorama. The applicant no.1, Munna Lal and his son, Sunny were contesting the cases on behalf of Smt. Manorama. It is categorically stated that the applicant nos. 1 and 2 had nothing to do with the property, except, they were pleading the cases of Smt. Manorama in the Rent Control Act and other matters.
6. Learned counsel for opposite party no.2 has argued that in fact, prima facie, offences of cheating and forgery are made out against the applicants and other co-accused, inasmuch as, the non-applicant, Shiv Kumar knowing fully well that he is the owner of only half of the share of House No.35, yet with a wrongful intention in order to make wrongful gain to himself and wrongful loss to opposite party no.2 executed a sale deed more than that of his share on which eight shops existed and the rent was being collected by his father. He further submits that the applicants in collusion with other co-accused had also instituted proceedings before the Rent Control Court claiming themselves to be owner of the shop and by misrepresentation and playing fraud upon the court got certain orders from the Rent Control Court. Learned counsel has also given details of the manner in which the applicants on the basis of forged unregistered sale deed of eight shops belonging to his father attempted to obtain eviction of the tenants. He further argues that it is well settled that even if the dispute between the parties is partly civil in nature and also contains the ingredients of criminal nature and if it is so, they can also be tried by criminal courts. In the present case as the offence of cheating and forgery is, prima facie, established, therefore, the submission of learned counsel for the applicants cannot be accepted that the present proceedings instituted on complaint are not maintainable. Thus, the application is bereft of any merits and the same is liable to be dismissed.
7. Learned Senior Advocate has argued that there is no dispute that non-applicant, Shiv Kumar has inherited the share of his father Heera Lal and also had a joint ownership in House No.35 along with opposite party no.2. Even if, for the sake of argument, the averments made in the complaint are assumed to be true that non-applicant, Shiv Kumar executed registered sale deed in favour of Smt. Manorama more than that of his share measuring 48 square yards on which certain shops existed, then neither offence of cheating nor forgery on the part of the accused is attracted. There is no evidence of hatching any conspiracy against the applicant no.3 who is in fact a bona fide purchaser for consideration.
8. Therefore, the question arises for consideration is whether the material on record, prima facie, constitute any offence against the accused. The contention of learned counsel for the applicants is that if the allegations made in the complaint and in the statements in support thereof, even if accepted to be true in entirety does not disclose the ingredients of any offence of forgery under Sections 467, 468, 471 or cheating under Section 420 I.P.C. At the very outset, I may record that the Hon'ble Apex Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. Reference may be made to the judgment rendered by the Hon'ble Apex Court in G. Sagar Suri v. State of U.P. (2000) SCC 636 and Indian Oil Corporation v. NEPC India Ltd. (2006) 6 SCC 736.
9. According to applicants, the sale deed executed by non-applicant, Shiv Kumar obviously does not fall in any of the category of making of false documents, even for the sake of arguments it is accepted that he has executed a sale deed of the joint property more than of his share i.e. 48 square yards and then the applicants/vendees attempted to get the tenants evicted on the basis of the aforesaid sale deed. In the present case, it is not disputed by opposite party no.2 that non-applicant, Shiv Kumar has not acted as an impostor of opposite party no.2 or his father but he executed the sale deed in his capacity as the owner of the property.
10. 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 alternation; 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.
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 it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]." (emphasis supplied)
11. The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the non-applicant, Shiv Kumar, in executing and registering the sale deed purporting to sell a part of the 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.
12. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
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 authorized 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.
13. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant-opposite party no.2 that the execution of sale deed by Shiv Kumar who was in no way connected with a part of joint property, amounted to committing forgery of the documents with the intention of wrongful gain to himself in collusion with the applicants would bring the case under the first category.
14. 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 authorized 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.
15. 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 a part of which he is not the owner as alleged 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.
16. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
17. 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).
18. 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 i.e. applicants.
19. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the non-applicant by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
20. 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.
A clarification
21. When it is stated 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, it should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.
22. In the light of aforesaid, the averments made in the complaint if assumed to be true do not make any offence under Section 419, 420, 468, 471 I.P.C. and, therefore, the continuance of the proceedings arising out of the impugned complaint is nothing but an abuse of process of court and, thus, in the exercise of inherent power, I deem it fit to quash the impugned complaint and the summoning order.
23. Considering the overall facts and circumstances of the case and taking the entire allegations made in the complaint and in the statements recorded under Sections 200 and 202 Cr.P.C., this Court is satisfied that, prima facie, commission of cognizable offence is not made out against the applicants and non-applicant, Shiv Kumar and his wife Smt. Kamla Devi.
24. Accordingly, the complaint and the proceedings arising therefrom including the summoning order are hereby quashed.
The present application under Section 482 Cr.P.C. is, accordingly, allowed.
Order Date :- 1.8.2019 Vikas