Rajasthan High Court - Jodhpur
Rupa Ram & Ors vs State & Anr on 16 August, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Petition No.3393/ 2015
1. Rupa Ram s/o Likhma Ram
2. Sushila Devi w/o Rupa Ram
3. Bhanwar Lal s/o Sohan Lal
4. Govind Ram s/o Sohan Lal
5. Suraj Mal s/o Sohan Lal
6. Magha Ram s/o Sohan Lal
7. Ram Chandra s/o Sohan Lal
All b/c Mali, r/o Ladnu Road, Raghunath Colony, Deedwana,
District Nagaur.
----Petitioners
Versus
1. The State of Rajasthan
2. Magha Ram s/o Likhma Ram, b/c Mali, r/o Jhalrabas,
Deedwana, District Nagaur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Jagmal Singh Choudhary, Senior Advocate
assisted by Mr.Pradeep Choudhary
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
Mr.Bhupendra Singh
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 11/08/2017 Pronounced on 16/08/2017
1. This criminal misc. petition under Section 482 Cr.P.C.
has been preferred for quashing FIR No.321/2015 dated 01.11.2015 registered at Police Station, Deedwana (Nagaur) for the offences under Sections 420, 467, 468 and 471 IPC.
(2 of 22)
2. The complainant on 01.11.2015 submitted a report before the SHO, Police Station, Deedwana alleging therein that his father Likhma Ram purchased a residential plot situated at Kadiya Bas, Patan Road from one Sohan Lal. All the parties in the FIR were the members of a joint family and the property partition had taken place between the family members. It was alleged in the complaint that the complainant constructed a boundary wall, room, water tanks etc. in the said plot, and obtained a water connection in his name. Sohan Lal divided the land bearing khasra No.2637 measuring 02 bighas 11 biswa in the shape of plots in his lifetime and sold out the same to different persons. The accused persons, namely, Rupa Ram, Sushila Devi, Bhanwar Lal, Govind Ram, Surajmal, Magha Ram and Ram Chandra entered into a criminal conspiracy and prepared the forge documents and sold out the complainant's plot to Smt.Sushila. Thereafter, the investigation was conducted.
3. Learned Senior Counsel for the petitioners submitted that the land bearing khasra No.2637 measuring 02 bighas 11 biswa situated at Kadiya Bas, Patan Road was recorded in khatedari of Sohan Lal, whereas on his expiring, the land was recorded in the name of Bhanwar Lal, Govind Ram, Suraj Mal, Magha Ram and Ram Chandra, all sons of Sohan Lal.
4. The aforementioned petitioners being the recorded khatedars, sold the aforesaid plot measuring 02 bighas 11 biswa to Sushila Devi w/o Rupa Ram through a registered sale deed dated 24.01.2013.
(3 of 22)
5. Learned Senior Counsel for the petitioners also submitted that the matter pertains to the family partition regarding the property in question. Moreover, petitioner No.2 had filed a civil suit regarding the property in question seeking injunction against complainant-Magha Ram, and thus, the impugned FIR was a consequence of that litigation. The sale deed was registered way back on 24.01.2013, but the FIR was lodged on 01.11.2015, after a delay of more than two and a half years, just after filing of the civil suit by petitioner-Sushila to resolve a civil dispute by criminal proceeding.
6. Learned Senior Counsel for the petitioners further submitted that the petitioners, on the face of it, did not commit any offence, so as to attract the provisions of Section 420, 467, 468 and 471 IPC.
7. In support of his submissions, learned Senior Counsel for the petitioners placed reliance on the judgment rendered by this Court in Gopal Singh & Ors. Vs. State of Rajasthan & Anr. (S.B.Criminal Misc. Petition No.658/2015 decided on 19.07.2017), wherein following order was passed:-
"1. The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of FIR No.430/2014 registered at Police Station Udaimandir, District Jodhpur and proceedings in furtherance thereto for offence under Section 420, 467, 471, 472/120-B of IPC.
2. The brief facts of the case are that on 08.10.2014, the respondent No.2 filed a complaint before the court of Additional Civil Judge cum Judicial Magistrate (JM) No.3, Jodhpur against the petitioners for alleged offences under Section 420, 467, 468, 471, 472 & 120-B (4 of 22) of IPC. It was alleged in the complaint that the petitioner No.1 & 2 were having land in Khasra No.195/3 measuring 6 bigha 7 biswa situated at village Narnadi, Tehsil Luni, District Jodhpur. There was an agreement to sale between the parties for the said land for RS. 1,45,000/- per bigha and out of which, a sum of Rs. 1,50,000/- was paid on 21.06.2014. The complainant was to be paid an amount of Rs. 9,20,755/-, out of which, he paid Rs. 7,10,000/- and the rest amount was due to be paid. The amount was to be paid within a period of one year from the signing of the agreement i.e. on 21.06.2004 for complying of the necessary terms of the agreement. The respondent No.2 alleged that he came to the petitioners to pay balance amount and requested him to get the land registered in their name then the petitioner No.1 told that there is dispute between the brothers and therefore, he did not take any action against the present petitioners. It is relevant to note here that no civil suit was filed between the parties regarding the compliance or consequences of the said agreement. It was only on 08.10.2014 that the respondent No.2 chose to file a complaint which was forwarded under Section 156(3) of Cr.P.C.
3. Learned counsel for the petitioner has pointed out that there was no dispute regarding land in question and merely with an intention to defeat the civil rights arisen between the parties. Out of the said agreement, the FIR has been lodged with a delay of more than 10 years i.e. the agreement was executed on 21.06.2004 and the FIR has been lodged on 08.10.2014. It is also stated that on the bare reading of the facts of the FIR, no offence is constituted as the FIR merely narrates the failure of the agreement which had occurred between the parties and there was a variation on the prices of the property therefore, the parties failed to comply with the final terms of the agreement.
(5 of 22)
4. Learned counsel for the petitioner has relied upon the judgment of Prem Kumar Vs. State of Rajasthan and another reported in Cri.L.J. 744, which reads as follows:
"3. The Appellant filed a petition Under Section 482 Code of Criminal Procedure seeking quashing of the proceedings by stating that the agreement to sell was executed by mother of the Appellant who had died but as the patta was not issued and the sale could not be completed, the complainant took the refund. Thereafter in 1991, the land was recorded in the name of the Appellant. The complainant remained silent for eleven years and even civil proceedings are barred by limitation.
4. The High Court rejected the petition with the observation that the Appellant being aware of the transaction of the year 1989 could not have sold the same property and thus, it could not be held that no cognizable offence was committed. The observations are as follows:
Undisputedly, the Petitioner Prem Kumar is a party to both the sale transaction. He was well aware of the fact threat the land in question has been sold to the complainant way back in the year 1989 as he himself had signed the documents. Thereafter this land has again been sold by the Petitioner Prem Kumar while concealing the factum of earlier sale. This Court is of the opinion that it would not be possible and just for this Court to hold that the F.I.R. impugned does not disclose any cognizable offence against the accused Prem Kumar.
5. Aggrieved by the order of the High Court, this appeal has been preferred. On 26th April, 2013, while issuing notice, this Court stayed further (6 of 22) proceedings. No one appears for the complainant in spite of service of notice. Learned Counsel for the Appellant submitted that even if all the allegations in the complaint are taken as correct, complaint has been filed in the year 2012 while the agreement to sell in question was executed in favour of the complainant on 16th March, 1989. The second sale took place in the year 1999. No suit for specific performance was filed for a period of more than 10 years. In these circumstances, the complaint was an abuse of court's process to enforce civil rights which had become illegally unenforceable.
6. From the above undisputed facts, it is apparent that the impugned complaint is clear abuse of court's process. It is not the case of the complainant that any proceedings were taken for the enforcement of the agreement to sell for a period of more than 10 years. In these circumstances, the criminal proceedings initiated by the complainant are clear abuse of the process of court. Accordingly, this appeal is allowed and proceedings against the Appellant are quashed.
5. Learned counsel for the petitioner further relied upon the judgment of Suresh Vs. Mahadevappa Shivappa Danannava and anr. reported in 2005(1) WLC (SC) Criminal 519, whereby the Hon'ble Apex Court has laid down the precedent law that a complaint was filed after a lapse of 11 years after the agreement to sale for violation of the same could not be entertained. The relevant portion of the judgment reads as under:
"10. We have also perused the Annexures P1-P3 which are copies of the pleadings/documents which form part of the records of the case in the High Court against whose order leave to appeal was sought for in this appeal. We have carefully perused the order passed by the High Court. The High (7 of 22) Court, in our opinion, has passed the order in a mechanical way without applying its mind. A perusal of the complaint would show that the entire dispute raised by the complainant is based on the alleged agreement to sell dated 25.12.1988 nearly 11 years prior to the filing of the private complaint on 17.05.1999. The existence of any such agreement or any advance taken has been specifically denied by the appellant by way of his reply dated 06.07.1996 in response to the legal notice dated 11.07.1996 sent by the complainant through his lawyer. For nearly 3 years from the date of reply, the complainant kept quiet before filing his complaint on 17.05.1999 before the Magistrate. It is stated that even as per the police report, no offence is made out against accused Nos. 2-4. Despite this, the Magistrate issued process against accused Nos. 2-4 as well which clearly shows the non-application of mind by the Magistrate. A perusal of the complaint would only reveal that the allegations as contained in the complaint are of civil nature and do not prima facie disclose commission of alleged criminal offence under Section 420 IPC. The Magistrate, in our opinion, has not considered the report filed by the police under Section 156(3) Cr.PC judicially. Irrespective of the opinion of the police, the Magistrate may or may not take cognizance under Section 190(1) of Cr.PC. In the instant case, as could be seen from the records, that the police has given a clean chit to accused Nos. 2-4. In our opinion, the Magistrate ought not to have taken cognizance of the alleged offence against the accused No. 1, the appellant herein and that the complaint has been made to harass the accused No. 1 to come to terms by resorting to criminal process.
(8 of 22)
11. As already noticed, the complaint was filed on 17.05.1999 after a lapse of 111/2 years and, therefore, the very private complaint filed by the respondent No. 1 is not at all maintainable at this distance of time. It is the specific case of accused No. 1 that he has not executed any agreement to sell or received any advance payment. In our view, the complaint does not disclose the ingredients of Section 415 of Cr.PC and, therefore, we have no hesitation to set aside the order passed by the Magistrate taking cognizance of the offence alleged. It is also not clearly proved that to hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. The order of the Magistrate and of the High Court requiring the accused No. 1 appellant herein to face trial would not be in the interest of justice. On the other hand, in our considered opinion, this is a fit case for setting aside the order of the Magistrate as confirmed by the High Court of issuance of process and the proceedings itself.
6. Learned counsel for the petitioner has also relied upon the judgment of Hridaya Ranjan Pd. Verma and others vs. State of Bihar & another reported in 2000 Cri.L.J. 2983, whereby the Hon'ble Apex Court has held that if a criminal prosecution was to take place arising out of breach of contract then the dishonest intention was to be shown at the beginning of the transaction i.e. at the time of making the promise. The relevant portion of the judgment reads as under:
"16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the (9 of 22) time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
17. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana and Ors. v. Bhajan Lal and Ors. (Supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in complaint. All that the respondent No. 2 has alleged against the appellants is that they did (10 of 22) not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent No. 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same."
7. Learned counsel for the petitioner further relied upon the judgment of Dalip Kaur & Ors. Vs. Jagnar Singh & Anr. reported in 2009 (4) RLW 3488 (SC), whereby the Hon'ble Apex Court has settled the law regarding criminal breach of trust and cheating whereby Hon'ble Apex Court has held that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of appellants by non- refunding the amount of advance the same would not constitute an offence of cheating. The relevant portion of the judgment reads as under:
"The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position (11 of 22) in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Indian Penal Code."
8. Learned Public Prosecutor submitted the status report reflecting the conclusion that prima-facie the offence has been made because the amount mentioned in the agreement was neither returned by the accused persons nor the agreement was executed. The status report thus, in sum and substance only reflects non-payment of the amount in accordance with the payment and non-compliance of the terms of the agreement and nothing beyond that. Learned Public Prosecutor however submitted that the investigation is complete.
9. Learned counsel for the respondent states that in fact he had waited for the long duration because the petitioner has assured after the dispute was resolved, the agreement would be executed.
10. Learned counsel for the respondent has relied upon the judgment of Het Ram & Ors. Vs. State of Rajasthan & Anr. reported in 2014(4) Cr.L.R. (Raj.) 2084, whereby the High Court has held that aggrieved party is entitled to avail civil and criminal remedy both. Reliance has also been placed on Manohar Singh Vs. State of Rajasthan & Anr. passed in Criminal Misc. Petition No.2938/2014 decided on 26.09.2016 whereby the High Court has held that since the investigation in the matter has materially progressed and prima-facie case has been made against the petitioner therefore, there was no requirement of any indulgence to be granted by this Court.
11. Learned counsel for the respondent also relied upon the judgment of Mohan Das & Ors. Vs. State of Rajasthan & Anr. passed in S.B. Criminal Misc. Petition No.2872/2014 decided on 20.11.2014, (12 of 22) whereby the Coordinate Bench of this Court has laid down that the preparation of false documents by the petitioner was an offence and therefore, it was not a case of some execution but it was a case there was a preparation of false documents, hence, the misc. petition was dismissed.
12. Learned counsel for the respondent also relied upon the judgment of Shabbir Shah Vs. State of Rajasthan & Anr. reported in 2014(2) Cr.L.R. (Raj.) 1038, whereby this Court has decided that if a person was deputed on account of promise to provide employment in gulf countries was an offence.
13. Reliance has also been placed on Vijayander Kumar & Ors. Vs. State of Rajasthan & Anr. reported in 2014 Cr.L.R. (SC) 286, whereby the Hon'ble Apex Court has held that availability of civil remedy cannot be a ground to quash the criminal proceedings and thus, the criminal proceedings ought to continue.
14. After hearing counsel for the parties and perusing the record of the case as well as precedent law cited at Bar, this Court is of the opinion that the total conclusion of the investigation which reflected in the status report is that an agreement had happened between both the parties and the parties could not take the agreement to the finality as the petitioners did not executed the agreement and also did not return the advance of Rs.7,10,000/- which he had got in lieu of agreement from the respondent No.2. Thus, the case of the prosecution seems to be that neither agreement has been completed and nor the amount taken in lieu of the agreement has been taken and both are squarely covered by the precedent law cited by learned counsel for the petitioner where the Hon'ble Apex Court has held that no suit for specific performance was filed by the complainant for more than 10 years, the complainant (13 of 22) was abuse of process of the court to enforce civil rights which had become unenforceable. Furthermore, the Hon'ble Apex Court in the precedent law cited by learned counsel for the petitioner also made it clear that in case of a person not returning the amount taken in lieu of the agreement then also he shall not be entitled to be prosecuted in the criminal proceedings. The precedent law cited by learned counsel for the petitioner is absolutely applicable in the present case and original agreement was signed between the parties on 21.06.2004 whereas after all no civil proceedings whatsoever took place between the parties and a FIR was filed on 08.10.2014 after a delay of more than 10 years. The legally enforceable agreement which could not be enforced by the civil litigation due to limitation. This Court takes note of argument of learned Public Prosecutor that the land was sold by the petitioner but complainant himself gave a specific reason in FIR that the agreement could not culminate into execution because the variation of the price in the immovable property which resulted into failure of the agreement. In light of such specific complaint on the face of it, it is apparent that the present FIR is nothing but abuse of process of law with the ill-intention of executing the contract which had virtually failed in light of the limitation law. The precedent law cited by learned Public Prosecutor as well as learned counsel for the respondent is not applicable in the present case as it is neither a case of employment where a person has been duped nor it is a case where prima-facie investigation has found some documents to be forged as it is reflected in the status report and no such document of forgery has been pointed out by the prosecution or the private respondent. Thus, the precedent law cited by learned counsel for the respondent would not apply in the present case and shall not impact upon the resulted of (14 of 22) the present petition.
15. In light of the aforesaid discussion, the present petition is allowed and the FIR No.430/2014 registered at Police Station Udaimandir, District Jodhpur and the further proceedings for the offences under Sections 420, 467, 468, 471, 472/120-B of IPC is quashed and set aside."
8. Learned Senior Counsel for the petitioners has further placed reliance on the precedent law laid down by the Hon'ble Apex Court in Md. Ibrahim & Ors. Vs. State of Bihar & Anr., reported in 2010(1) SRJ 114 and submitted that following the ratio of the said judgment, the offences under Sections 420, 467, 468 and 471 IPC were not made out. Relevant paras of the said judgment read as under:-
"7. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. See: G. Sagar Suri v. State of U.P. : 2000 (2) SCC 636 and Indian Oil Corporation v. NEPC India Ltd. : 2006 (6) SCC 736. Let us examine the matter keeping the said principles in mind.
(15 of 22) Sections 467 and 471 of the Penal Code
8. Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under Section 467 or Section 471 of Penal Code. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 defines a forged document as a false document made by forgery.
9. The term "forgery" used in these two sections is defined in Section 463. Whoever makes any false documents 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 express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. 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 (16 of 22) 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 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.
(17 of 22) [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.
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 practised upon him, know the contents of the document or the nature of (18 of 22) 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. 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, 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 (19 of 22) 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.
Section 420 IPC
13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, (20 of 22) alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
14. 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. 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. 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."
(21 of 22)
9. Thus, as per learned Senior Counsel for the petitioners, the maximum allegation, on the face of it, does not travel beyond the failure of the partition between the family members, which is a legally enforceable right and a civil litigation in respect thereof is pending.
10. Learned counsel for the respondent however, vehemently opposed the registered sale made by the accused persons in favour of Smt.Sushila and made a categorical submission that the property in question belongs to the complainant. Learned counsel for the respondent relied upon various documents to show the ownership of the complainant in respect of the plot in question.
11. After hearing the learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that the precedent law cited by learned Senior Counsel for the petitioners is squarely applicable to the facts of the present case, as it is apparent on the face of the FIR that it is nothing but an abuse of the process of law, lodged with an ill intention of resolving a civil dispute through the criminal proceeding.
12. In Md. Ibrahim & Ors. Vs. State of Bihar & Anr.
(supra), the Hon'ble Supreme Court has laid down a clear precedent law that a person even in his own name, knowing fully well that he is not the owner of the property sales it, then also he cannot be said to be committing the offences under Sections 420, 467, 471, 472/120-B IPC. The precedent law laid down by the (22 of 22) Hon'ble Apex Court in Md. Ibrahim & Ors. Vs. State of Bihar & Anr. (supra), as quoted hereinabove and as cited by the learned Senior Counsel for the petitioners is absolutely applicable to the facts of the present case.
13. Admittedly, the petitioners and the complainant are family members and were inheritors of a joint family property, of which partition had happened and the maximum allegation is that the property belonging to the complainant was sold out to Smt.Sushila, but nowhere the ingredients of Sections 415 and 463 Cr.P.C. have been made out, so as to entitle the complainant to continue with the impugned FIR.
14. In light of the aforesaid discussion as well as the precedent law cited by learned Senior Counsel for the petitioners, the present misc. petition is allowed and the impugned FIR No.321/2015 dated 01.11.2015 registered at Police Station, Deedwana (Nagaur) is quashed and set aside. The stay application also stands disposed of.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-