Madras High Court
Ramakrishnan vs The Inspector Of Police on 28 June, 1982
Crl.O.P.(MD) No.9208 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 10.08.2022
Pronounced on: 17.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.O.P.(MD) No.9208 of 2021
and
Crl.M.P(MD) No.4714 of 2021
Ramakrishnan ...Petitioner
vs
1. The Inspector of Police
District Crime Branch
Madurai District
2. Balasubramanian ..Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
this Court to call for the entire records pertaining to the FIR in Crime No.8 of
2021 pending of the file of the Inspector of Police, District Crime Branch,
Madurai District and quash the same,
For Petitioner : Mr.R.Anand
for Mr.RL.Dhilipan Pandian
For Respondents : Mr.E.Antony Sahaya Prabahar
No.1 Additional Public Prosecutor
No.2 :Mr.B.Brijeshkishore
1/20
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.9208 of 2021
ORDER
This Criminal Original Petition has been filed to quash the First Information Report in Crime No. 8 of 2021 on the file of the first respondent police.
2. The learned counsel for the petitioner would submit that the petitioner, aged about 67 years, is an accused in a case registered in Crime No. 8 of 2021 for the offences punishable under Sections 465, 467, 468, 471 and 420 of IPC on 20.04.2021. The petitioner and the defacto complainant are brothers. The subject matter of property in S.Nos.61/5A, 11/4A1, 11/4A2 in Maruthangudi Village, Kallikudi Taluk, Madurai District admeasuring to an extent of 1 Acre 16 cents, 13 cents, 98 cents respectively orginanlly owned by their grand father.
After him, their father succeeded. Their father died on 02.03.2008 and mother died on 05.03.2017. The defacto complainant Balasubramanian was working at United India Insurance Company as Vigilance Officer. The petitioner/accused being the brother of defacto complainant, cultivated his lands. The petitioner by influencing his mother and forging documents obtained property in his name. Hence, the defacto complainant lodged the complaint on 20.04.2021.
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3. The learned counsel further submitted that the offence as stated in the complaint is not made out and the petitioner has not committed any offence as stated in the complaint. The property situated in S.Nos.11/4A1, 11/4A2 at Maruthangudi Village, Kallikudi Taluk, Madurai District to an extent of 1 acre had been sold by their father Ramaiah Thevar when the defacto complainant was minor, for himself and on behalf of his minor son to her daughter Maruthaiammal and Krishnan Thevar by way of sale deed dated 28.06.1982.
Subsequently, the above said Maruthaiammal executed a registered sale deed on 04.02.2004 in favour of the petitioner herein and he is in possession of the same in pursuance of the above said sale deed. He did not forge any document. He further submitted that the property in S.No.61/5A at Maruthangudi Village Kallukudi Taluk , Madurai District measuring 1.16 cents was given to the petitioner by his mother Muthammal by way of settlement deed dated 08.08.2012, therefore, the petitioner had not created any false documents. For attracting the offence of forgery, making of false documents are essential. The alleged sale deed and the settlement deed were executed by the petitioner’s sister and mother and this petitioner did not make any false document.
Therefore, no case is made out to attract the offence under Section 465 of IPC and further the offence under Section 420 of IPC being a consequential one it 3/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 also cannot be sustained. Remaining provisions of IPC as stated in the First Information Report is also not attracted, hence, continuation of investigation would amount to misuse of criminal process. It is purely civil in nature.
4. To support his arguments the learned counsel placed reliance on the judgment of the Hon'ble Apex Court in the case of Sheila Sebastian vs R.Jawaharaj and Ors reported in Manu/SC/0542/2018 and also the Judgement of the Hon'ble Apex Court in the case of Md.Ibrahim and Ors vs State of Bihar and Ors reported in 2009(8) SCC 751.
5. The learned counsel further submitted that the defacto complainant had issued legal notice through his counsel on 13.03.2021 seeking partition of 1/7th share in the property. After issuing legal notice and demanding partition of the propery, in order to give a criminal colour to the civil dispute by misusing his position as a Vigilance Officer at United India Insurance gave a complaint to the respondent police and registered a case for the above said crime and it is a clear abuse of his power and therefore, the case registed in Crime No. 8 of 2021 for the offences punishable under Sections 465, 467, 468, 471 and 420 of IPC on 20.04.2021 has to be quashed 4/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021
6. The learned Additional Public Prosecutor would submit that the case is under investigation and objected to quash the same.
7. The learned counsel appearing for the second respondent/defacto complainant objected to quash the First Information Report and submitted that the investigation is pending. Prima facie there are sufficient allegations for making a criminal offence. The petitioner created documents in favour of him and thereby benefitted. Therefore, there is no reason to quash the First Information Report at the initial stage of enquiry and pleaded to dismiss the same. He further submitted that the inherent power in a matter of quashing of First Information Report has to be exercised spraingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. To support his argument he placed reliance on the judgment of this Court in the case of Neeharika Infrastructure Pvt Ltd vs. State of Maharastra and Others reported in 2021 SCC Online SC 315 and another case in State of Haryana vs.Ch.Bhajan Lal (AIR) 1992 SC 604) 5/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021
8. I have considered the submission of the learned counsel appearing for the petitioner, second respondent/defacto complainant and the learned Additional Public Prosecutor appearing for the respondent police.
9. The fact reveals that the petitioner and the defacto complainant are brothers and the subject property in S.Nos.61/5A, 11/4A1, 11/4A2 in Maruthangudi Village, Kallikudi Taluk, Madurai District were owned by their father Ramaiah thevar as ancestral property. This fact is not disputed. Further father Ramaiah Thevar died on 02.03.2008 and mother died on 05.03.2017 were also not disputed. Now the averments in the complaint is that after the death of his father and mother the properties were not partitioned as on date.
Since the petitioner is working at Central Government United India Insurance as Vigilance Officer, the properties are left under the control of his brother Ramakrishnan. By utililizing the above circumstances he had forged documents and changed the revenue documents patta, chitta and other documents. Hence, complaint is given and based on that complaint a case has been registered in Crime No. 8 of 2021 for the offences under Sections 465, 467, 468, 474, 420 ofIPC on 20.04.2021.
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10. On perusal of the available records, the fact reveals that the defacto complainant had issued an Advocate notice to the petitioner and other legal heirs demanding partition of 1/7th share in the disputed property on 13.07.2021.
The relevant portion of the said notice is reproduced as follows:
“That the schedule mentioned properties originally and ancestrally belonged to one Ramaiya Thevar. The abovee Ramaiya Thevar had a wife namely Muthammal. Ramaiya Thevar through his wife Muthammal had got 2 sons and 5 daughters by name Balasubramanian (My client herein), Ramakrishnan, Maruthaiammal, Jakkammal, Dhanalakshmi, Packiyathai and Alagu namely No.1 to 6 among you. The above said Ramaiya Thevar was in possession and enjoyment of schedule mentioned properties.
2. While facts being so, Ramaiya "Thevar died on 02.03.2008.
After the d e m i s e o f R a m a i y a T h e v a r h i s ‘ w i f e M u t h a m m a l along with his legal heirs namely my client along with No.1 to 6 among you have joint right over the s chedule mentioned properties. Subsequently after the demise of Muthammal my client along - with No.1 to 6 became entitled to the schedule mentioned properties and they have joint right as well as they are in joint possession and enjoyment of the same. No. 1 and 2 among you proclaimed in the Village that they have absolute right over the schedule mentioned properties. My 7/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 client was simply amused and shell shocked by the proclamation on the part of No. I and. 2 among you. My client immediately verified the records relates to the schedule mentioned properties and shocked to know that number of void transactions were executed regarding the schedule mentioned, properties. The father of my client by name Ramaiya Thevar for himself as well as on behalf of his sons Balasubramanian (My client herein) and Ramakrishnan (No.2 among you) seems to have executed a registered sale deed on 28.06.1982 in favour of No.1 a m o n g you by name Maruthaiammal and her husband Krishna T h e v a r re g a rd i n g t h e 1 s t i t e m o f t h e s c h e d u l e m e n t i o n e d p ro p e r t y c o m p r i s e d i n S . N o . 11 / 4 A h a v i n g a n e x t e n t o r 1 A c re 1 c e n t . M y c l i e n t o b t a i n e d t h e re g i s t r a t i o n c o p y o f t h e re g i s t e re d s a l e d e e d d a t e d 2 8 . 0 6 . 1 9 8 2 b e f o re t h e concerned Sub-Registrar Office and on perusal of the same my client was shocked to know that the sale deed d a t e d 2 8 . 0 6 . 1 9 8 2 w a s e x e c u t e d b y m y client's father Ramaiya Thevar for himself as well as on behalf of his minor son Ba lasu braman ia n (My cl ient herei n). Ac tua lly on the date of exec ut ion of t he sale deed da ted
28. 06.19 82 my c lien t is major as per the records stands in the name of my clie nt. My cli ent had became ma jor eve n on 09. 07.19 81 itse lf sin ce the dat e o f birt h of my cl ien t is
07. 05.19 63 as per the rec ords sta nds i n his name. Hence the abo ve Ramai ya Thevar ha d no lega l rig ht to exec ute the al lege d sale deed d ated 28.06. 198 2 on be hal f o f his so 8/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 calle d min or son Bal asubram an ian The a lle ged sa le deed dated 28.0 6.19 82 is a sham an d nominal document since the 1st item of the schedule mentioned property is ancestral in nature. Hence the aboke Ramaiya Thevar along with his Ramakrishnan had no absolute right to execute the alleged sale deed dated 28.16.1982 in favour of No.1 among you namely Maruthaiammal and her husband Krishna Thevar in respect of the first item of bind my client in anyway.
3. My client further instructed to say that No.1 among you by name Maruthaiammal seems to have executed a registered sale deed on 04.02.2004 in favour of No.2 among you by name Ramakrishnan regarding the properties in S.No. 11/4A -1 having an extent of 3 cents and S.No.11/4A2 having an extent of 98 cents (Totalling to 1 Acre 1 cent). No.1 among you had no absolute right to execute the alleged sale deed dated 04.02.2004 in favour of No.2 among you over the first item of the schedule' mentioned 'property: On the guise of the . alleged sale deed dated 04.02.2004 no.2 among you cannot claim absolute right over the 1st item of the schedule mentioned property. The alleged sale clecd will not bind my client in anyway.
4. My client further instructed to say that my client's mother Muthammal seems to have executed a registered gift settlement deed on 08.08.2012 in favour of No.2 among you regarding the property in S.No.61/5A having an extent of 1 Acre 9/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 16 cents. Since the 2nd item of the schedule menthined property is also ancestral in nature, the above said Muthammal had no iota of right to execute the alleged gift settlement deed dated 08.08.2012 in favour of No.2 among you in respect of the 2nd item of the schedule mentioned property. The alleged gift settlement deed dated 08.08.2012 will not confer any absolute right in favour of No.2 among you over the 2nd item of the schedule mentioned property. Moreover the alleged gift settlement deed will not bind my client anyway. All the above mentioned sale deeds, gift settlement deed never came into force and acted upon. My client along-with No.1 to 6 among you arc in continuous joint possession and enjoyment of the schedule mentioned properties. It is pertinent to point out that in both the sale deeds and gift settlement deed as mentioned above properties as mentioned as ancestral in nature. Moreover the alleged sale deeds and gift settlement deed were executed between the family members of Ramaiya Thcvar including No.1 tiz, 2 among you. Hence it will presume that the sale deeds and gift settlement deed were . created as per whims and fancies of No.1 and 2 among you along with the husband of No.1 namely Krishna Thevar and the father of my client namely Ramaiya Thevar. No.3 to 6 among you colluding with No.1 and 2 among you regarding their illegal activities. Now all of you colluded together and on the guise of void sa l e d ee d s an d g i f t s ettlem e n t de e d o f t e n at t e mp t e d to a l i e na t e an d e nc u mb er the sc he d u le m en t i o ne d pro p er t i es . S i nc e t he s ch ed u l e m ent i o ne d p ro p er t i es a re a nc es t ra l and jo i n t f am i l y 10/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 prop er t i es c on s is t i n g of m y c l i en t a l o n g w i t h No :1 to 6 amo n g yo u , m y cl i e n t, is h av i n g h is l eg i t i m a te 1 / 7 t h s hare . My c l ie n t re qu e st e d t o n o .1 to 6 a mo n g y ou t o div ide t h e s ch ed u l e m en t i o ne d pro pe r t ie s a nd a l lo t my c lie nt 's 1/ 7 t h s ha re. Bu t no . 1 n o 6 a mo n g y o u d ra g ge d o n from t i me to t i me a nd o f f ere d so me l am e ex cu se s.
More o ve r no .1 t o 6 am o ng y o u c o l l ud e d t og e t he r are tak ing a l l ou t e f f or t s t o a l i en a t e an d en c um b er t he s ched u l e me n t i on e d pro pe r t ie s .My c l i en t f e e ls no m ore s afe r t o k ee p th e sc he d u le m en t i o n ed p ro p er t i es i n j o in t .
Hence th is l ega l not ice issued to a ll of you an d no.1 to 6 amo ng you are hereby req uested t o come and eff ect par ti ti on of the sched ule men ti oned pro pert ies and al lot my cli ent's bo naf ide 1 /7 t h share as well as no 1 to 6 am ong you are here by direc ted to can cel the void sa le deeds & gift sett leme nt dee d execu ted in f avour No.I an d 2 am ong you regardin g the schedu le men ti oned proper tiesw ith in 10 days from of rece ip ts of not ice on or fa ilu re my cl ien t wil l be constra ine d to take lega l ac tio n bef ore com pete nt fourm and in such even t, you al l he ld l iab le for cost and conse queces there on”
11. The above said legal notice issued by the defacto complainant is not disputed now. From the above notice, the following facts are coming into light:
11/20https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 a. A portion of the disputed properties was sold by their father Ramaiah thevar in favour of Maruthaiammal and his husband Krishnan Thevar by way of registered sale deed on 28.06.1982, when the defacto complainant was minor.
b. Thereafter, the above said Maruthaymmal and her husband Krishnan Thevar sold the property to the petitioner by way of registered sale ded on 04.02.2004.
c. With regard to another disputed property the mother Muthammal gave it to the petitioner by way of registered settlement deed dated 08.08.2012 and the above fact is not disputed by the defacto complainant.
12. Now the allegations in the complaint seems to be false one because the petitioner /accused has not made any false document in favour of him with regard to the disputed property and he got it by way of sale deed dated 04.02.2004 and by way of registered settlement deed dated 08.08.2012 and it clearly exposes the fact that he did not make any false document in his favour.
13. In view of the above principle stated by the Hon’ble Apex Court in Sheila Sebastian (supra) for invoking the penal provision under Section 465 of 12/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 IPC making of false document is essential. In this case, the petitioner/accused did not make any false document and therefore, no case is made out under Section 465 of IPC, hence the offence under Section 420 of IPC being a consequential one equally cannot be sustained. For the other offences under Sections 467, 468, 471 of IPC, there is no materials available and there is no allegation at all. The principle stated by the Hon’ble Apex Court in Shelia Sebastian (supra) is reproduced hereunder for better appreciation:
“19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery Under Section 463, Indian Penal Code. Therefore, we can safely deduce that Section defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction Under Section 465, first it has to be proved that forgery was committed Under Section 463, implying that ingredients Under Section should also be satisfied. Therefore unless and until! ingredients Under Section 463 are satisfied a person cannot be convicted Under Section 465 by solely relying on the ingredients of Section , as the offence of forgery would remain incomplete.13/20
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20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in the caseMd. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 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 a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses.”
22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467,IPC) and using of forged document as genuine (Section 471,IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463,IPC depends upon creation of a document as defined under Section , IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount 14/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 to commission of offences punishable under Sections 467and 471,IPC even if title of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed that:
“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 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 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 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 of the Code. If what is executed is not a 15/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471of the Code are attracted."
24.In Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:
“A person is said to make a false document or record 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.
The second criteria 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 criteria of the said section is also not applicable to the present case.
The third and final condition of Section 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 16/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section further clarifies that, for constituting an offence under Section it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
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 in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute 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 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”.
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14. In the present case on hand the petitioner had not made any false document. He had purchased the property from his sister by way of sale deed and obtained the property from his mother by way of settlement deed as stated above. Therefore, the allegations in the First Information Report and also the materials accompanied in the First Information Report does not disclose the cognizable offence and there is no reason or material for permitting the investigating officer to investigate the case further. The averments in the FIR do not disclose the crime of any offence and make out the case against the accused.
15. Further the ratio laid down by the Hon’ble Supreme Court in the case of State of Haryana vs.Ch.Bhajan Lal (AIR) 1992 SC 604) is applicable to the present case on hand. If the defacto complainant have any share over the property after issuing legal notice he need not file a criminal case against his own brother, instead of filing a partition suit and to set aside the sale deed executed by his sister and settlement deed executed by his mother. The criminal proceedings is maliciously instituted with ulterior motive by using his post as Vigilance Officer in the United India Insurance Company. The arguments stated by the learned counsel for the petitioner is having force.
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16. In the instant case the allegations made in the complaint do not constitute any offence. Therefore, by applying the principles of the ratio laid down by the Hon’ble Supreme Court in the case of State of Haryana vs.Ch.Bhajan Lal (AIR) 1992 SC 604) this First Information Report needs to be quashed.
17. In view of the same, this Criminal Original Petition stands allowed and as a sequel, the proceedings in Crime No.8 of 2021 on the file of the first respondent police respondent police, is hereby quashed. Consequently connected miscellaneous petition is also closed.
17 .08.2022 Internet:Yes Index:Yes/No aav To
1. The Inspector of Police District Crime Branch Madurai District.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
19/20https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.9208 of 2021 V.SIVAGNANAM, J.
aav Crl.O.P.(MD) No.9208 of 2021 17.08.2022 20/20 https://www.mhc.tn.gov.in/judis