Deo Kumar Pawan ? Deo Kumar Singh & Ors vs State Of Jharkhand on 23 November, 2017

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Jharkhand High Court

Deo Kumar Pawan ? Deo Kumar Singh & Ors vs State Of Jharkhand on 23 November, 2017

2. Instant petition has been filed for quashing the order dated 23.04.2010 passed by Sub-Divisional Judicial Magistrate, Chatra taking cognizance against the petitioners under Sections 419, 420, 467, 468 and 120(B) of the Indian Penal Code.

3. The short fact as would appear from the complaint petition is that complainant Raghu Nandan Singh(Paswan) son of Late Basudeo Singh filed a complaint case against accused-petitioners which was registered as Complaint Case No.201 of 2009 in which it was alleged that complainant and accused no.1 and 2 as well as witness no.1 are members of same ancestral family. A land under Khata no.41, Plot no.104, area 30 acre 50 decimal under Mouza Godwali, P.S. Hunterganj was recorded in the name of the complainant at the time of his father and accordingly government rent-receipts were also being issued. During the lifetime of the father of the complainant he before the village Punches partitioned his moveable and immoveable properties between the four brothers and all were coming into possession of their respective shares of land. These facts were also accepted by accused no.1 in his sale deed no.4028 dated 11.07.2001 which relates to Khata no.41, Plot no.104 area 8 decimal.

4. The further case is that accused nos.1 and 2 having knowledge of entire circumstances, by making conspiracy sold the land belonging to the brother of complainant who is witness no.1 to accused nos.3 and 4 by registered sale deed no.3725 dated 25.06.2009 and misappropriated the entire consideration amount. After getting the knowledge, complainant approached the Registration Office, 2 Chatra and obtained certified copy of it and found the incident correct and thereafter filed this complaint petition with a prayer to award punishment to the accused persons.

5. Accordingly, after recording the inquiry witnesses the court of Sub- Divisional Judicial Magistrate, Chatra took cognizance of the offence under Sections 419, 420, 467, 468 and 120(B) of the Indian Penal Code against all the accused persons and ordered for filing requisites for issuance of summons.

6. Learned counsel appearing on the behalf of the petitioners submitted that admittedly petitioner nos.1 and 2 and O.P. No.2 herein are brothers belonging to same family. He further submitted that as per allegation petitioner no.1 has sold land in favour of accused nos.3, 4 and 5 but no such documents have been annexed with the complaint petition. He further submitted that the cognizance is bad in law as the transaction relating to transfer of land is a matter to be decided by a civil court of competent jurisdiction. No case under the sections of Indian Penal Code is made out, therefore, the order taking cognizance is bad in law. He also submitted that no fraud or misrepresentation was made before the court as the transfer of land was effected with the correct recitals. If there is no false document as defined in Sections 464 offences under Sections 467 and 471 of the Indian Penal Code are not made out, therefore mere execution of a sale deed by claiming that property being sold was executant's property, did not fall under the category of offence committed under Sections 467 and 471 of the Indian Penal Code. He relied on a decision in the case of Mohammed Ibrahim and Others vs. State of Bihar and Another reported in (2009) 8 SCC 751 where it has been held that 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. He further relied on a decision of Rajendra Prasad Gupta and Ors. vs. The State of Jharkhand and Anr. reported in 2014(1) JLJR 159(HC) and submitted that it is not the case of the complainant that any of the accused persons tried to deceive him either by making a false or misleading representation or by any other action or omission or that he was fraudulently or dishonestly induced to deliver any property or to consent to the retention therof, if he were not so deceived, thus, 3 no offence either u/s 420 or u/s 467 or u/s 468 made out and hence order taking cognizance can be quashed. He further relied on a decision relating to Madho Mahto & Ors. versus State of Jharkhand & Anr. reported in 2005(1) East Cr. C 272(Jhr) on the point that since it is a case of civil nature so no case under the sections of Indian Penal Code is made out. He also submitted that the court of Sub-Divisional Judicial Magistrate, Chatra without any application of mind took cognizance although he was not having competent jurisdiction to decide the right, title and interest of the complainant. Lastly he submitted that no documents were annexed with the complaint petition to show that by sale of these lands the complainant was deceived and no such prayer has been made in the prayer portion.

7. Learned counsel for the O.P. No.2 submitted that it is admitted position that complainant and O.P. Nos.1 and 2 are brothers and belong to same family but after partition by the father of the complainant the residential house of complainant was situated on the land which was fraudulently sold by the accused persons and entire consideration amount was misappropriated without the knowledge of the complainant. He further submitted that after getting the knowledge he obtained the certified copy of the deed of conveyance and immediately approached the court for getting proper relief. He also submitted that the land in question which was fraudulently transferred by the accused persons was registered in the name of complainant. The other details like sale deed number and date of execution were also provided in the complaint petition. The court after recording inquiry witnesses found prima facie case against accused persons and has rightly taken cognizance under the aforesaid Sections.

8. Learned A.P.P. appearing on behalf of the State submitted that civil and criminal cases could run together, if the criminal intention is such then the accused persons cannot escape from their criminal liability.

9. Considering the above pleadings of the parties as well as the cases cited herein, it appears that in the case of Mohammed Ibrahim(supra) the Hon'ble Supreme Court has held that:-

"8. This Court has time and again drawn attention to the growing tendency of the 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 4 pressurise parties to settle civil disputes. But at the same time, 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."

It has further been held that 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. It has also been held that the first category of false documents, it is not sufficient that the document has been made/executed dishonestly or fraudulently. There is the further requirement that the document should have been made with the intention of causing it to be believed that such document was made/executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. The basic ingredients of the offences that there should be forgery as defined in Section 463 and forgery in turn depends upon creation of a false document as defined in Section 464. The Hon'ble Supreme Court further held that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences under Sections 467 and 471 even if title to property did not vest in the executant. 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.

10. Reliance has also been placed in the case of Rajendra Prasad Gupta (supra) where it has been held that:-

"7. .......... 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 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 first category of "false document", 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.

When a document is executed by a person claiming a property which is not his, he is not claiming that he is 5 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".

11. In the case of Madho Mahto(supra) it has been held that:-

"6. From perusal of complaint petition, it appears that the allegation, as made in the complaint petition, relates to deciding the fact whether the complainant is the rightful owners of the land in question or petitioners, who have been made accused in the complaint Case No.81/2000, are the rightful owner of the land in dispute and whether Mahto and Balchand Mahto rightly executed the sale deed in favour of other petitioners or not and this is a fact or matter, which can be decided by a civil Court of competent jurisdiction and not by a criminal Court, because it has not been seen whether any forgery has been committed or not but it has to be seen that who are the rightful owners of the land in question and further that so called sale deed has not been brought on record to show that any such sale deed has been executed and, therefore, it is out and out a case of civil nature, in which right, title and interest of the parties are involved and this can be decided by a civil Court of competent jurisdiction only"

12. Here in this case also no document or sale deed in question were attached with the complaint petition. Believing all these documents it can safely be held that the Magistrate has not taken proper care while taking cognizance in the matter. The court has also to see that if the matter is essentially and purely civil in nature then criminal courts should ensure that proceedings before it are not being used for settling scores or to pressurise parties to settle civil disputes.

13. Therefore, under such circumstances entire criminal proceeding of Complaint Case No.201 of 2009 including the order dated 23.04.2010 taking cognizance of the offence under Sections 419, 420, 467, 468 and 120(B) of the Indian Penal Code against the petitioners are quashed.

14. In the result, instant criminal miscellaneous petition is allowed.

(B.B. Mangalmurti, J.) R.P./A.F.R.

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Jharkhand High Court