Jharkhand High Court
Jamila Khatoon vs The State Of Jharkhand on 12 September, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 583 of 2022
1.Jamila Khatoon
2.Shekh Maniruddin Ansari .... .. ... Petitioner(s)
Versus
1.The State of Jharkhand.
2.Manwar Ansari .. ... ...Opp. Party(s)
...........
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........
For the Petitioner(s) : Mr. Avishek Prasad, Advocate
For the State : Mr. Satish Prasad, APP
For the Opp. No.2 : Mr. S. Eqbal, Advocate
Mr. Haroon Rasheed, Advocate
......
11/ 12.09.2023. Heard, learned counsel for the parties.
1. The instant Cr. M. P. has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 09.06.2021 passed by Judicial Magistrate, 1st Class, Ranchi, in Thakurgaon P.S. Case No.35 of 2020 (arising out of Complaint Case No.2512 of 2020) whereby and whereunder cognizance has been taken under Sections 467, 468, 471, 420/34 IPC.
2. As per the case of the complainant, it is alleged that Schedule -I property was jointly purchased by one Sk. Rahman Ansari, Sk. Salamat Ansari and Sk. Karimuddin Ansari from one Bindu Kumari @ Bindu Singh by virtue of a registered sale-deed executed on 07.02.1972 whereas Schedule II is part of the Plot No.1282 which was purchased exclusively by Sk. Salamat Ansari (father of the complainant). After the said purchase, the land, in question, was duly mutated in the name of the purchasers.
3. Complainant is the brother of petitioner No.22, and the main allegation made in the complaint petition is that he along with his wife (Petitioners 2 &1) knew fully well that the schedule-II property was joint family property exclusively purchased by the father of the complainant and Petitioner no.2. Despite the said knowledge, Petitioner no.2 executed the sale deed with respect to it in favour of Petitioner no.1. The sale deed was executed under criminal conspiracy by taking a power-of-attorney executed by son of Sk. Karimuddin Ansari who was one of the owners of schedule-I property which is northern side of Schedule-2 property and had no right to sell the property of schedule II.
4. On the basis of the complaint, the police case was registered and after investigation, charge-sheet has been submitted against the petitioners and cognizance has been taken. Aggrieved by the order taking cognizance, the instant Cr.M.P. has been filed.
25. It is submitted by learned counsel for the petitioners that it is purely a civil dispute, but with some oblique motive, the instant criminal prosecution has been launched.
6. It is further submitted that even if the allegation is assumed to be true, no offence of cheating or forgery will be made out on the basis of averment made in the complaint petition. The admitted position is that Sk. Salamat Ansari was the exclusive owner of Schedule -II property which has been sold by his son, Maniruddin Ansari to his wife, Jamila Khatoon. Whether he sold the land beyond his share or not is a question which cannot be determined in a criminal case. There has been no impersonation or no document has been forged to make out the offence of forgery. If the vendor, namely, Maniruddin Ansari had no right to sell the property, the only person who can be said to have been cheated shall be the purchasers, but not the complainant.
7. Learned APP for the State assisted by learned counsel for the O.P. No.2 has opposed the quashing petition. It is submitted that the accused no.1 (petitioner no.2) had not sold the land as the share-holder, but as the power of attorney holder of Alimunddin Ansari, S/o Karimuddin Ansari who had no right, title or interest over the Schedule -II property to execute the power of attorney.
8. After having considered the rival submissions advanced on behalf of both the sides and considering the materials on record, it is apparent that the gravamen of allegation levelled by the complainant against his brother is that he had sold the property without partition of the joint family property. The property was exclusively purchased by the father and one of the brother had no right to sell the same to his wife.
9. This court is of the view that the dispute is predominantly civil in nature in which even if the allegations are accepted to be true, no offence will be made out. If it is accepted that the petitioner had no right to sell the property without partition, no title will transfer in view of the principle of nemo debt non quod habet. No one can transfer a better title than he has. A person who purchases such a right can only file a suit for partition to carve out the share but will not acquire any right, title merely on the basis of the said sale. In this settled position of law, such a transfer will not amount to cause any wrongful loss to the complainant. The only party in such case aggrieved and be said to have been defrauded will be the purchaser if the seller has sold the property without any valid title. It has been held in Mohd. Ibrahim v. State of Bihar & Anr., (2009) 8 SCC 751
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 3 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.
10. The offence of the forgery shall also not be made out as it is not stated what document has been forged. By executing a sale deed without any title to the property will not make out an offence of forgery. Section 464 seeks to define a false document. The two elements which upon a document the character of a false document are these. It must be a document dishonestly or fraudulently made and it should have been made with intention of causing a belief that it was made or executed by or by the authority of a person who did not make or execute it and with knowledge that it was not so made or executed. It has been held in Mohd. Ibrahim (supra).
11. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
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.
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.
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.
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 practising deception, or from a person not in control of his senses.
Under the aforesaid facts and circumstance and for the reasons discussed above the order taking cognizance and the entire criminal proceeding arising therefrom is quashed.
Criminal miscellaneous petition is allowed.
(Gautam Kumar Choudhary, J.) Sandeep/ Uploaded.