Madhya Pradesh High Court
Abid Hussain vs The State Of Madhya Pradesh on 2 August, 2018
1 MCRC-3857-2018
The High Court Of Madhya Pradesh
MCRC-3857-2018
(ABID HUSSAIN Vs THE STATE OF MADHYA PRADESH)
5
Indore, Dated : 02-08-2018
Shri Virendra Sharma, learned counsel for the applicants.
Shri Vishal Sanotiya, learned P.P for the respondent no.1/State.
None present for the respondent no.2.
This petition has been filed for quashment of the FIR of Crime No. 44/2014 registered under section 420, 465, 467, 468, 120B, 201 of the IPC at police station Mahakal, District Ujjain on the ground that from the avernment of the FIR no offence is made out against the applicants.
In the police station Mahakal, District Ujjain, Crime No. 44/2014 has been registered on 21/01/2014 on the basis of written complaint made by respondent no.2 Abdul Hassain stating that he is owner of the land bearing Survey No.115 situated in District Ujjain and accused persons are owner of land bearing Survey No.115/1 situated in District Ujjain but the applicants/accused persons have sold out the land bearing Survey No.115 showing to be Survey No.115/1 to one Ayub Khan, S/o Yakub Khan and executed registered sale deed on 11/10/2012. Accordingly, the applicants/accused persons have committed offence of cheating, forgery and thereafter on completion of the investigation, the charge sheet has been filed.
On behalf of the applicants, it is submitted that the applicants have not received any money from the complainant and not committed offence of cheating with the respondent no.2. So far the allegation with regard to commission of offence of forgery is concerned, the applicant has put their signature on the sale deed stating their names on the sale deed. The allegations is that the avernments are false in the sale deed with regard to the title of the land but mere false allegation in any document is not sufficient to deem the document to be forged. The definition of forged document has been given in section 463, 464 of the IPC. In this case there is no ingredients of aforesaid offence in the FIR. Hence, prima facie there is no avernment of the offence with regard to commission of the cognizable offence. Therefore, in the eyes of law, there is no FIR and the same deserve to be quashed and when the FIR does not disclose commission of the cognizable offence, the police has no right to investigate the matter and all proceedings based on such FIR is insignificant and can’t be continued and deserve to be set aside. In this regard learned counsel for the applicant has placed reliance on the judgment of the Hon’ble Apex Court in the case of Mohammed Ibrahim & others Vs. State of Bihar & another (2009)8 SCC 751 stating that the facts of the present case and the facts of the aforesaid case dealt by the Hon’ble Apex Court are same. Hence, the petition be allowed.
Learned P.P for the respondent/State opposed the contention of the learned counsel 2 MCRC-3857-2018 for the applicant but unable to show any legal provision or judgment in support of the prosecution stand.
The Hon’ble Apex Court in the case of Mohammed Ibrahim (supra) has dealt with all the aspects which has been raised in this case and the facts are also similar and has categorically held that only purchaser is entitled to prosecute the seller for commission of the offence of cheating and observed as under in para 20 to 22 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 co-accused.
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 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.
22. 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.
That further the Hon’ble Apex Court has dealt with the ingredients of sections 464, 467, 471 and relevant paras are 12 to 17, which is reproduced as under:-
12. 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 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 3 MCRC-3857-2018 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]."
13. The condition precedent for an offence under section 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. 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.
14. An analysis of section 464 of 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 practicing deception, or from a person not in control of his senses.
15. 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, 4 MCRC-3857-2018 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 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.
In view of the law laid down by the Hon’ble Apex Court, it is clear that in the FIR there is no averment with regard to commission of the offence by the applicants punishable under section 420, 465, 467, 468 of IPC as neither they have committed cheating with the complainant or forged any document which comes under purview of valuable security. Therefore, this petition is allowed and the FIR is quashed and subsequent other proceeding are also deemed to be quashed. Accordingly, this petition is disposed of.
Certified copy as per rules.
(J. P. GUPTA) JUDGE Tarun Digitally signed by TARUN KUMAR SALUNKE Date: 2018.08.02 16:04:20 +05'30'