Madras High Court
Loordhusamy vs The State Rep. By on 8 August, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.10299 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2022
CORAM:
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
CRL.O.P.No.10299 of 2022
and Crl.M.P.Nos.6105 & 6106 of 2022
1.Loordhusamy
2.N.Raju
3.R.Karunanidhi
4.Rathinavel ... Petitioners
Vs.
1.The State Rep. by
Inspector of Police
Central Crime Branch
The prevention of Land Grabbing
Team No-XVIII, Egmore, Chennai
Crime No.391 of 2012
2.M.Selvi ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.,
to call for the records and quash the charge sheet filed in C.C.No.16 of
2022, pending on the file of the learned L.G.II, M.M. Court Allikulam,
Chennai.
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Crl.O.P.No.10299 of 2022
For Petitioners : Mr.S.Selvaraj
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor for R1
R2 – No Appearance
ORDER
This Criminal Original Petition is filed under Section 482 Cr.P.C.
to call for the records in C.C.No.16 of 2022, for the offence under Sections 120(B), 419, 467, 468, 471, 420 and 506(i) I.P.C., pending on the file of the learned Land Grabbing II, M.M. Court, Allikulam, Chennai and quash the same.
2.The petitioners herein are A9, A10, A14 and A17. A9 and A14 are the purchasers of the property, A10 is the witness to the document and A17 is the land broker.
3.The crux of the prosecution case is that in Survey No.54/1 and 54/2 in respect of Plot No.26A, measuring to an extent of 1200 sq. ft. was purchased by the defacto complainant through the Power Agent called Page No.2 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022 Hema Kumar in the year 1997. Thereafter, A4 has obtained Power of Attorney on 31.10.2002 from some of the co-owners. According to the prosecution, pursuant to the above Power of Attorney, Plot No.26 was changed to 26A and Plot No.28 was changed to 28A and sold it to the 1st and 3rd petitioner, thereby all the persons have been prosecuted.
4.Learned counsel for the petitioners would submit that the petitioners' possess title in pursuant to the final decree proceedings passed in O.S.No.431 of 1955. According to him, Survey Nos.54/1 and 54/2 measuring totally to an extent of 66 cents were allotted to one Selvammal. Selvammal had three children viz. one son and two daughters, and the two daughters have granted Power of Attorney in favour of their brother on 21.08.1992. Pursuant to the same, the property has been sold and the petitioners claim title from that. He further submitted that no documents have been filed on the side of the defacto complainant and even in the revenue records it does not show any of the name of predecessor of defacto complainant. Hence submitted that continuation of prosecution is nothing but an abuse of process of law.
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5.Despite the service of notice and the name of the defacto complainant printed in the cause list, none represented on her behalf to prosecute the matter.
6.Learned Additional Public Prosecutor would submit that according to the prosecution the plot No.26 is changed to 26A and Plot No.28 is changed to 28A and sold the property. Normally, when the final report indicate materials which requires appreciation of evidence, this Court will not interfere, but when the Civil dispute is given a criminal colour, the prosecution cannot be continued.
7.Heard the learned counsel on either side. This Court perused all the materials placed on record.
8.The very allegation in the final report indicates dispute with regard to the title as rightly pointed out. The learned counsel for the petitioners submitted that in the final decree proceedings passed in O.S.No.431 of 1955, the said properties have been allotted to one Page No.4 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022 Selvammal in Survey No.54/1 and 54/ and the legal representatives of Selvammal also have right over the property and A4 obtained Power of Attorney from them. The revenue records and the statement of the Tahsildhar also clearly indicates the Survey Numbers as 54/1 and 54/2.
The only allegation of the prosecution is that the plot No.26A and 28A is not found in the revenue records. Now the contention of the prosecution is that 26A and 28A have been created and the properties have been sold fraudulently.
9.It is relevant to note that the original Survey Number of the area is 54/1 and 54/2 which was the subject matter of the final decree proceedings and 66 cents have been allotted to Selvammal as per the final decree proceedings available in the typed set. Merely because some entries are not found in the revenue records, it cannot be the ground to hold that the falsification of records or forgery and such act never amounts to forgery.
10. In this regard, the Hon'ble Apex Court has held in Mohammed Page No.5 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022 Ibrahim and other Vs. State of Bihar and another reported in [2009] 8 Supreme Court Cases 751 as follows :
17. The allegations in the complaint do not also made out the ingredients of an offence under section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace. The allegation in the complainant is that when he enquired with accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to appellants 1 and 2, it cannot be said to amount to an "insult with intent to provoke breach of peace". The statement attributed to accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by first appellant in favour of the second appellant.
Section 464 IPC deals with making of false and the same 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;Page No.6 of 12
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(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 unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know Page No.7 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022 the contents of the document or electronic record or the nature of the alteration.
[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. 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.Page No.8 of 12
https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022 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 practiced 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.
12.Considering the above judgment, it is clear that none of the allegations and materials unearthed by the prosecution to show that there was falsification of the record or that any cheating has taken place when Page No.9 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022 the person has bonafidely executed the document. Such an act will never fall within an ambit of any of the Sections framed by the prosecution.
The 1st and 3rd petitioners herein are the purchasers, the 2nd petitioner is the witness to the document and the 4th petitioner is the land broker and they cannot be clothed with criminal liability. Hence, this Court finds that allowing the petitioners to face the ordeal of trial is nothing but an abuse of process law.
13.In the result, this Criminal Original Petition stands allowed accordingly. The Final report filed in C.C.No.16 of 2022, for the offence under Sections 120(B), 419, 467, 468, 471, 420 and 506(i) I.P.C. pending on the file of the learned Land Grabbing II, M.M. Court, Allikulam, Chennai with regard to the petitioners alone is quashed. The trial Court shall proceed with the trial in respect of other accused expeditiously.
Consequently, the connected miscellaneous petitions are closed.
08.08.2022 kas To Page No.10 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022
1.Inspector of Police Central Crime Branch The prevention of Land Grabbing Team No-XVIII, Egmore, Chennai
2.The Public Prosecutor High Court of Madras Chennai 600 104 N.SATHISH KUMAR, J.
kas Page No.11 of 12 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10299 of 2022 CRL.O.P.No.10299 of 2022 and Crl.M.P.Nos.6105 & 6106 of 2022 08.08.2022 Page No.12 of 12 https://www.mhc.tn.gov.in/judis