Delhi District Court
Geeta Gandhi vs State (Nct Of Delhi) on 18 November, 2019
IN THE COURT OF SHRI SANDEEP YADAV
ADDL. SESSIONS JUDGE02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Revision No. 596/19
Geeta Gandhi
W/o Late Sh. Sushil Kumar Gandhi
R/o. C63, 2nd floor,
New Delhi110065.
.... Petitioner
Versus
1. State (NCT of Delhi).
2. Ashwani Kumar Malik
R/o. C63, Ground Floor,
Frends Colony (East)
New Delhi110065.
.... Respondents
Date of Institution : 13.08.2018
Date of Arguments : 26.09.2019
Date of Judgment : 18.11.2019
ORDER
1. The petitioner Geeta Gandhi is aggrieved by the order dated 05.05.2018 passed by Ld. CMM/South East District/Saket Court/Delhi whereunder it has been held that sufficient material has come on record to CR No.596/19 1/12 Geeta Gandhi vs. State frame the charge U/s/ 120B read with Section 420/467/471/474 IPC and for substantive offences U/s. 420/467/471/474 IPC read with Section 120B IPC against the petitioner.
2. Arguments addressed by Mr. Vaibhav Mahajan, Ld. Counsel for petitioner, Sh. L.D.Singh, Ld.Addl.PP for state/respondent No.1 and Mr. Sidharath Aggarwal, Ld. Counsel for respondent No.2 have been heard at length. Trial court record perused.
3. The genesis of this case lies in the complaint lodged by respondent No.2 Ashwani Kumar Malik against Sumit Gandhi and Geeta Gandhi pursuant to which the FIR bearing No. 138/12 U/s. 420/467/468 & 471 IPC was registered. The gist of the complaint may be briefly noted as under:
4. The complainant/respondent No.2 was the owner of first floor of property No. C63, Friends Colony (East) since December 1996 having purchased the same from Sh. Jaswant Singh Uppal. The possession of ground floor alongwith rear half of the terrace and garage in right side drive way was with the Uppal Family which was sold to respondent No.2 by way of agreement to sell dated 26.03.2009 and registered sale deed dated 01.05.2009. The peaceful and vacant possession of ground floor, rear half of the terrace and the garage on the right side drive way at the ground floor was handed over by the seller to the respondent No.2. Petitioner Geeta Gandhi has claimed that she is the owner of entire second floor of first half CR No.596/19 2/12 Geeta Gandhi vs. State terrace above the second floor, two car parking space in the drive way on the second floor, with one servant room over the garage on the right side drive way and garage room at the end of right side drive way on the ground floor. The petitioner supported her claim on the strength of the registered sale deed dated 10.08.2000 vide which she purchased the second floor of the above mentioned property alongwith garage from Jaswant Singh Uppal through her attorney Sumit Gandhi. According to respondent No.2 the sale deed dated 10.08.2000 is a forged document as Sh. Jaswant Singh Uppal on whose behalf attorney Sumit Gandhi executed the document had died on 05.02.2000 and thus, accused Sumit Gandhi had no right, title or interest to act as attorney of Mr. Jaswant Singh Uppal to execute the sale deed.
5. Emphasizing the second limb of alleged forgery, it was stated that in the General Power of Attorney dated 09.06.95 executed by Mr. Jaswant Singh Uppal in favour of Mr. Sumit Gandhi, there was no mention of garage portion on the second floor of the property and thus, Sumit Gandhi did not have authority to execute the sale deed date 10.08.2000 in favour of S.K.Gandhi and Geeta Gandhi regarding garage portion on the right side drive way on the ground floor of the property. In the will and collaboration agreement dated 09.06.1995 executed by Mr. Jaswant Singh Uppal in favour of petitioner Geeta Gandhi and Gandhi Architects, the right in the garage portion on the right side drive way on the right side property was not conveyed.
6. After registration of FIR the matter was investigated which CR No.596/19 3/12 Geeta Gandhi vs. State culminated in the chargesheet U/s. 420/467/468/471/120B IPC against the petitioner and other persons. It was concluded in the impugned order that Sumit Gandhi by executing the sale deed dated 10.08.2000 in respect of property which included garage portion at the end of right side drive way on the ground floor by virtue of General Power of Attorney executed by Mr. Jaswant Singh Uppal in his favour has made a false document within the definition of Section 464 IPC and has thus committed forgery. It was thus, concluded that a forged sale deed was executed by Sumit Gandhi in pursuance of a criminal conspiracy amongst the accused persons to cheat the complainant and consequently the impugned order on charge was passed.
7. The Impugned order is assailed on the ground that petitioner Geeta Gandhi is not the executant of the sale deed dated 10.08.2000 and hence cannot be accused of forging the sale deed or of entering into a conspiracy to forge the sale deed just because she is a beneficiary of sale deed. Reference was also made to Section 202 of Indian Contract Act, the contention being that the General Power of Attorney executed by Mr. Jaswant Singh Uppal in favour of Mr. S.K.Gandhi was irrevocable and will continue to have legal validity even after the death of Mr. Jaswant Singh Uppal. To establish that Mr. Sumit Gandhi had no guilty intention while executing the sale deed, it was submitted that after execution of General Power of Attorney, an agreement to sell dated 09.11.1998 was also executed by Mr. Jaswant Singh Uppal which mentions the garage portion at the end of right side drive way on the ground floor of property.
CR No.596/19 4/128. Mr. Sidharath Aggarwal, Ld. Counsel for respondent No.2 after giving a history of execution of various documents in respect of aforesaid property submitted that the petitioner is relying on a letter dated 17.07.1996 written by Mr. Jaswant Singh Uppal to M/s. Gandhi Architect wherein Mr. Jaswant Singh Uppal in lieu of the car parking space on the on the right side drive way at the ground floor allowed by M/s. Gandhi Architect Pvt. Ltd. relinquished his right in the covered garage in the right side drive way. Mr. Siharath Aggarwal submitted that this letter is not mentioned in the sale deed dated 31.12.1996 executed by Mr. Jaswant Singh Uppal in favour of Mrs. Subhasani Malik, the submission being that said letter is a forged document. Mr. Sidharath Aggarwal further submitted that Sumit Gandhi had no interest in the property and hence Section 202 of Contract will not be applicable. Mr. Sidharth Aggrwal, Ld. Counsel for respondent No.2 further submitted that if General Power of Attorney was irrevocable as contended by the petitioner, where was the need for Mr. Jaswant Singh Uppal to execute a Will in favour of Sumit Gandhi. It was lastly submitted that the evidence of the petitioner cannot be seen at the stage of charge as the same will have to be proved by her during trial.
9. The short point that has arisen in this revision petition for adjudication is as to whether Mr. Sumit Gandhi by executing a sale deed dated 10.08.2000 in respect of a property including garage portion at the end of right side drive way on the ground floor of the property has committed forgery while the General power of Attorney executed by CR No.596/19 5/12 Geeta Gandhi vs. State Mr.Jaswant Singh Uppal in favour of Sumit Gandhi did not mention the said garage portion. The second question for determination is as to whether the petitioner Sumit Gandhi has committed any offence of criminal conspiracy to commit forgery and to cheat the respondent No.2.
10. The offence of forgery is defined U/s. 463 IPC 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 Section 464 IPC a person is said to made a false document or false electronic record First Who dishonestly or fradulently
(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 (electronic signature) on any electronic record;
(d) makes any mark denoting the execution of a document or CR No.596/19 6/12 Geeta Gandhi vs. State the authenticity of the (electronic signature), with the intention of causing it to be believed that such document or part of document, electronic record or (electronic 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 SecondlyWho, 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 (electronic signature) either by himself or by any other person, whether such person be living or dead at the time of such alteration;"
10. Sumit Gandhi while executing the sale deed dated 10.08.2000 did not intend to believe that it was executed by some other person or by the authority of some other person. Sumit Gandhi signed the sale deed as Sumit Gandhi. The cases of making or executing a document with the intention of causing it to be believed that such document was made or executed by the authority of a person by whose authority the accused knew that it was not made or executed are illustrated by following two illustrations given below Section 464 IPC: "(b) A writes the word "accepted" on a piece of paper and signs it with Z's name, in order that B may afterwards write on the paper a bill of exchange drawn by B upon Z and negotiate the bill as though it had CR No.596/19 7/12 Geeta Gandhi vs. State been accepted by Z. A is guilty of forgery and if B, knowing the fact, draws the bill upon the paper pursuant to A's intention, B is also guilty of forgery.
(d) A purchases an estate sold under execution of a decree against B. B, after the seizure of the estate, in collusion with Z, executes a lease of the estate of Z at a nominal rent and for a long period and dates the lease six months prior to the seizure, with intent to defraud A, and to cause it to be believed that the lease was granted before the seizure. B, though he executes the lease in his own name, commits forgery by antedating it."
11. Thus, the act of Sumit Gupta in executing the sale deed in respect of a portion of the property (garage) which was not mentioned in the General Power of Attorney will not fall within the ambit of forgery as defined U/s. 463/464 IPC.
12. The controversy was set at rest by an authoritarian pronouncement by Hon'ble Supreme Court in (2009) 8 SCC 751 Mohd. Ibrahim and others vs. State of Bihar and others. It was held in para 16 & 17 as under:
"para 16. Thee 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 CR No.596/19 8/12 Geeta Gandhi vs. State 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 authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is now 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."
CR No.596/19 9/1213. Thus it is concluded that the sale deed dated 10.08.2000 is not a false document and therefore the petitioner could not have been charged U/s. 467/471/474 of IPC read with Section 120B IPC.
14. Coming to the charge U/s. 420 IPC the respondent No.2 is not a party to the sale deed dated 10.08.2000, therefore, he cannot complain of cheating. This issue was also clarified by Hon'ble Supreme Court in Mohd. Ibrahim (supra) which is as under: "20 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 coaccused."
"21. 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 CR No.596/19 10/12 Geeta Gandhi vs. State 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."
"23. When we say 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, we 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."
15. It is therefore, obvious that the petitioner could not have been charged U/s. 420 IPC read with Section 120B IPC. The obvious conclusion is that the impugned order dated 05.05.2018 suffers from illegality and CR No.596/19 11/12 Geeta Gandhi vs. State cannot be sustained. Accordingly, the impugned order dated 05.05.2018 is set aside and petitioner Geeta Gandhi is discharged in case FIR No. 138/12 of PS EOW.
Trial court record be sent back with copy of this order. File be consigned to Record Room.
Announced in open Court.
(Sandeep Yadav) ASJ02/South East District Saket Courts/New Delhi/18.11.2019 CR No.596/19 12/12 Geeta Gandhi vs. State