Rajasthan High Court - Jodhpur
Ishwar Singh & Ors vs State & Ors on 10 August, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1961 / 2013
1. Ishwar Singh s/o Ranjeet Singh, age 47 years,
2. Smt. Hem Kanwar widow of Ranjeet Singh, age 75 years,
Both b/c Rajput, r/o Village Deldar, Police Station Barloot, District
Sirohi.
3. Mahendra Singh s/o Berisal Singh age 48 years
4. Smt.Leela Kanwar w/o Mahendra Singh age 46 years,
Both b/c Rajput, r/o Village Bithu, Police Station, Rohat, District
Pali.
5. Jitendra Singh s/o Berisal Singh, age 44 years,
6. Smt.Neeru w/o Jitendra Singh, age 42 years, b/c Rajput, r/o
25, Umad Mills Society, Pali
(Accused).
----Petitioner
Versus
1. The State of Rajasthan.
2. Chain Singh s/o Ranjeet Singh.
3. Ganpat Singh s/o Mohan Singh, both b/c Rajput, r/o Village
Tapra, Police Station, Balotra, District Barmer (Complainants).
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.K.S.Rathore, Mr.Sheetal Kumbhat
For Respondent(s) : Mr.Mahesh Bora, Senior Advocate assisted by
Mr.Moti Singh
Mr.V.S.Rajpurohit PP for the State.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 08/08/2017 Pronounced on 10/08/2017
1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred for quashing FIR No.162 dated 08.08.2013 (2 of 17) [CRLMP-1961/2013] registered at Police Station, Industrial Area, Pali for the offences under Sections 420, 467, 468, 471 IPC.
2. A private complaint was filed by respondents No.1 & 2 before the learned Judicial Magistrate No.2, Pali on 06.08.2013 pertaining to agricultural lands situated in khasra No.126 measuring 0-4 Biswa and khasra No.127 measuring 214 bighas and 16 biswas in the agricultural boundary of Chak No.1 of Pali. The khatedari land was entered in the name of one Ranjeet Singh, father of respondent No.1 and grandfather of respondent No.2 in Jamabandi of Samwat Year 2008 to 2011. Initially, in the said Jamabandi, father's name of Ranjeet Singh was written as Jawar Singh, resident of Tapra, District Barmer. Subsequently, in Samwat Year 2011, the land was recorded in the name of Ranjeet Singh s/o Ajeet Singh. Ranjeet Singh s/o Jawar Singh was serving as Storekeeper in Jodhpur and came back to his Village Tapra, where he expired on 24.03.1993.
3. The issue pertains to the name of Ranjeet Singh, as apparently, there are two Ranjeet Singh; one son of Chiman Singh and another, son of Jawar Singh. The point of dispute in the father's name is that Jawar Singh's name also has alias Ajeet Singh and Chiman Singh's name also contains alias Ajeet Singh.
4. The complainant stated that the possession of the land was throughout with one Sardar Singh, who was working as Tehsildar in Pali, and who looked after the land in question, until he died in 1987. After the death of Sardar Singh, his sons, namely, Man Singh and Berisal Singh managed the land in question till 2011, and after the demise of Man Singh and Berisal (3 of 17) [CRLMP-1961/2013] Singh, their respective sons Devi Singh and Mahendra Singh managed the land in question. The allegation was that after the death of Ranjeet Singh s/o Jawar Singh, petitioner No.3-Mahendra Singh and petitioner No.5-Jitendra Singh have hatched a conspiracy and got the names of petitioner No.2-Smt.Hem Kanwar, Ishwar Singh and his late brother Jabar Singh entered in the revenue record by way of mutation No.2345 dated 20.03.2009. Ranjeet Singh, the ancestor of the present accused persons was belonging to Village Deldar and his father's name was Chiman Singh and his Death Certificate contains the father's name as Chiman Singh @ Ajeet Singh, resident of Village Deldar.
5. It was alleged that Ranjeet Singh s/o Chiman Singh had actually expired in 1983, however, was wrongly shown in the Death Certificate as to have expired in 1987, and thereafter, internal transaction within the family was done by the present petitioners.
6. The complaint was forwarded by the learned court below under sub-section (3) of Section 156 Cr.P.C. to the Police Station, Industrial Area, Pali, where FIR No.162 dated 08.08.2013 was registered for the offences under Sections 420, 467, 468 and 471 IPC.
7. Learned counsel for the petitioners submitted that following the ratio of the judgment rendered by the Hon'ble Supreme Court in Md. Ibrahim & Ors. Vs. State of Bihar & Anr., reported in 2010(1) SRJ 114, the offences under Sections 420, 467, 468 and 471 IPC were not made out.
(4 of 17) [CRLMP-1961/2013]
8. Learned counsel for the petitioners, at the outset, relied upon the following paras of the aforementioned precedent law in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra):-
"7. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. See: G. Sagar Suri v. State of U.P. : 2000 (2) SCC 636 and Indian Oil Corporation v. NEPC India Ltd. : 2006 (6) SCC 736. Let us examine the matter keeping the said principles in mind.
Sections 467 and 471 of the Penal Code
8. 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 Penal Code. Section 467 (in so far 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 (5 of 17) [CRLMP-1961/2013] to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 defines a forged document as a false document made by forgery.
9. 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 to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. 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 (6 of 17) [CRLMP-1961/2013] 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].
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.
(7 of 17) [CRLMP-1961/2013] 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.
10. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories:
10.1) 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.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) 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.
11. 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 practicing deception, or from a person not in control of his senses.
(8 of 17) [CRLMP-1961/2013]
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not (9 of 17) [CRLMP-1961/2013] 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.
Section 420 IPC
13. 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. 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).
14. 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 (10 of 17) [CRLMP-1961/2013] 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. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. 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."
9. Learned counsel for the petitioners also stated that the FIR itself did not constitute the offence, as the petitioners did not come within the purview of Sections 415 and 463 IPC, in view of the fact the petitioners have been depicted as the persons, who they are, and even if the petitioners are not the owners, then also, if they make such a sale, the petitioners shall not be liable to be (11 of 17) [CRLMP-1961/2013] prosecuted under Sections 420, 467, 468 and 471 IPC.
10. Learned counsel for the petitioners further stated that the definition of Section 415 IPC clearly show that there has to be an inducement between both the parties, whereas in the present case, there was no inducement factor between both the parties. Learned counsel for the petitioners further stated that the very definition of Section 463 IPC read with the judgment rendered in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra), clearly pointed out that the present petitioners, who have entered into the alleged controversy, as Ranjeet Singh s/o Chiman Singh @ Ajeet Singh was the actual owner and even if he was not the owner, then also as per the precedent law laid down in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra), the allegations did not constitute the offences under Sections 467, 468 and 471 IPC.
11. Learned counsel for the petitioners have also placed reliance on the precedent law laid down by the Rajasthan High Court in Nanu Ram Vs. State of Rajasthan, reported in 2004(2) Cr.L.R. (Raj.) 1343, whereby this Court has held that the mutation is a fiscal proceeding and does not vest any right in any party, and hence, cognizance taken in that case for the offences under Sections 420, 468, 471 and 120-B IPC was set aside.
12. Learned counsel for the petitioners have further placed reliance on the precedent law laid down by the Rajasthan High Court in Jaspal s/o Shyam Sunder & Anr. Vs. The State of Rajasthan & Anr., reported in 2004(1) Cr.L.R. (Raj.) 726, (12 of 17) [CRLMP-1961/2013] whereby this Court has held that since civil and revenue suits were pending with respect of the land in question therein between the same parties and genuineness of the alleged forged document is questioned in suits, therefore, cognizance taken against the petitioners therein was set aside.
13. Learned counsel for the petitioners have also placed reliance on the precedent law laid down by the Rajasthan High Court in Ganesh Dan Vs. State of Rajasthan & Anr., reported in 2012(4) Cr.L.R. (Raj.) 1984, wherein the signatures were not found to be forged, and thus, the FIR was quashed by this Court.
14. Learned counsel for the petitioners stated that Sardar Singh was the original owner, who kept the land in the name of Jawar Singh with a clear understanding that the land would vest in the descendants of Sardar Singh.
15. Learned counsel for the petitioners also stated that Ranjeet Singh s/o Chiman Singh @ Ajeet Singh was a family member on the in-laws side of Sardar Singh, and therefore, the title was correctly registered.
16. Learned Senior Counsel for the private respondents however, strongly refuted the submissions made by learned counsel for the petitioners and stated that the original owner of the land was Jawar Singh, and therefore, the son of Jawar Singh i.e.Ranjeet Singh ought to be the lawful owner of the land in question. The dispute arose when the first two generations have passed away and the value of the property increased, and thus, the third generation entered into the dispute arising out of their (13 of 17) [CRLMP-1961/2013] rival claims before various forums, including the civil and revenue courts.
17. Learned Senior Counsel for the private respondents submitted that the mutation entries categorically show the ownership of Jawar Singh, and therefore, Ranjeet Singh s/o Jawar Singh @ Ajeet Singh was the actual owner of the land in question.
18. In support of his submissions, learned Senior Counsel for the private respondents has placed reliance on the following precedent laws:-
(1) State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors., reported in (1992) Supp. 1 SCC 335.
(2) M/s. Medchl Chemicals & Pharma Pvt. Ltd. Vs. M/s. Biological E. Ltd. & Ors., reported in (2000) 3 SCC 269.
(3) T. Vengama Naidu Vs. T. Doraswamy Naidu & Ors., reported in 2007(2) WLC (SC) 101.
(4) Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy & Ors., reported in (2011) 12 SCC 437.
(5) Veer Prakash Sharma Vs. Anil Kumar Agarwal & Anr., reported in (2007) 7 SCC 373.
(6) Satish Mehra Vs. State of N.C.T. of Delhi & Anr., reported in (2013) 0 AIR (SC) 506.
(7) Yash Sharma & Ors. Vs. Mohan Dev Sharma & Anr., reported in 2013(3) WLC (Raj.) 641.
(8) Rama Prakash Bhargav Vs. State of Rajasthan & Anr., reported in 2013(4) WLC (Raj.) 451.
(9) Umesh Zadgaonkar & Ors. Vs. The State of Rajasthan & Anr., reported in 2013(3) WLC (Raj.) 666.
(10) Mahesh Choudhary Vs. State of Rajasthan, reported in 2008(1) WLC (Raj.) 458.
(11) Pratibha Vs. Rameshwari Devi & Ors., 2008(1) WLC (SC) Criminal 88.
(14 of 17) [CRLMP-1961/2013]
19. In the precedent law of State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. (supra), the Hon'ble Apex Court has laid down certain guidelines in relation to exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C.
20. Learned Senior Counsel for the private respondents also explained from para 12 of the judgment in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra) that if a person had been impersonated, then the execution of the documents would come within the purview of the offence under Section 463 IPC.
21. Learned Senior Counsel for the private respondents also pointed out that in the previous civil proceedings of ceiling, the land was defended by the family members of Jawar Singh. Learned Senior Counsel for the private respondents also pointed out that the relationship between Jawar Singh and Sardar Singh was that the wife of Jawar Singh was Muhboli Sister of Sardar Singh.
22. Learned Public Prosecutor has submitted that the first investigating officer proposed a final/closure report in the matter. Learned Public Prosecutor further submitted that the Assistant Public Prosecutor, whose opinion was sought, had opined that the FIR needs to be closed, in light of the judgment in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra).
23. Learned Public Prosecutor has pointed out that the second investigating officer had however, opined that the offence has been prima facie found to be made out, as the owner was the (15 of 17) [CRLMP-1961/2013] family of Jawar Singh and they had rightly used alias name Ajeet Singh, whereas Ranjeet Singh s/o Chiman Singh, resident of Deldar had apparently, no locus standi to be in the framework of the family. Learned Public Prosecutor further stated that the investigation report is a detailed one.
24. After hearing the learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that with two diverse opinions of the investigating officers and similarly contradicting opinion given by the Assistant Public Prosecutor, the investigating authority should have drawn more clarity, as to the fact whether Ranjeet Singh s/o Chiman Singh @ Ajeet Singh was the person, who executed the document. The investigation done so far, in the opinion of this Court, still is not conclusive in nature and needs further attention of the higher authorities, who could determine as to which of the investigations made earlier is correct.
25. Since the matter is partly dealt with, therefore, the precedent laws cited by learned Senior Counsel for the private respondents do not need any application in the present case, and the only interpretation has been drawn of the precedent law laid down by the Hon'ble Apex Court in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra) cited by learned counsel for the petitioners, para 12 of which is very clear, and thus, if proper investigation is made, the application of the precedent laws cited at the Bar shall automatically become clear.
26. In view of the above, this Court deems it appropriate to direct the respondents to get the investigation conducted by a (16 of 17) [CRLMP-1961/2013] higher authority, preferably in the rank of Additional Superintendent of Police, who shall determine from the documents on record, as to whether Ranjeet Singh s/o Chiman Singh @ Ajeet Singh had actually executed the documents in the name of Ranjeet Singh s/o Jawar Singh @ Ajeet Singh. If Ranjeet Singh s/o Chiman Singh @ Ajeet Singh was not the owner, but had executed the documents as himself, then of course, as per the precedent law laid down in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra), the criminal case against him cannot be carried on, as it could be an abuse of the process of law. But simultaneously, if Ranjeet Singh s/o Chiman Singh @ Ajeet Singh has impersonated himself to be Ranjeet Singh s/o Jawar Singh @ Ajeet Singh, then of course, investigation in the prima facie allegation and the criminal case could continue without any issues.
27. In fact, it is seen by this Court that multiple contradictions in the investigations have resulted into opaque space on the part of the investigation, which still does not clarify conclusively as to how Ranjeet Singh s/o Chiman Singh @ Ajeet Singh impersonated himself as Ranjeet Singh s/o Jawar Singh @ Ajeet Singh. If Ranjeet Singh s/o Chiman Singh @ Ajeet Singh had gone ahead to implant himself, so as to execute the documents, without having the ownership or right to do so, then obviously, it will be a case, which could be adjudicated only by the civil / revenue courts. However, if the prosecution finds that categorically there is impersonation and Ranjeet Singh s/o Chiman Singh @ Ajeet Singh has posed himself as owner and has posed himself as Ranjeet Singh s/o Jawar Singh @ Ajeet Singh, then the (17 of 17) [CRLMP-1961/2013] investigation can logically go on.
28. Thus, this Court also deems it appropriate to direct the respondents to carry out the investigation at an upgraded level afresh and determine the aforementioned issues, so that a final conclusion regarding the maintainability of the criminal proceedings can be made out. Since lot of delay is caused, since lodging of the FIR, therefore, it is expected that the investigation at the upgraded level shall be undertaken seriously and expeditiously with a clear chart of documents, so as to ascertain the position, in which Ranjeet Singh s/o Chiman Singh @ Ajeet Singh had executed the documents. It is also noted by this Court that throughout the possession has admittedly remained with the present accused-petitioners and this issue of continuous possession for a very long period, without being controverted by the complainant, is an issue, which also needs to have been investigated in depth. The Investigating Officer to be appointed in pursuance of this order is directed to take definite stand regarding both the contradictory investigations, which have taken place as well as the opinion furnished by the concerned Assistant Public Prosecutor with relation to the precedent law of Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra).
29. With the aforesaid observations and directions, the present misc. petition stands disposed of.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-