Rajasthan High Court - Jodhpur
Ganesh Dan vs State & Anr on 19 March, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
:::
JUDGMENT
:::
S.B. Criminal Misc. Petition No.2654/2011
Ganesh Dan. vs. State of Rajasthan & Anr.
Date of Judgment :: 19 March, 2012.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr.Mahesh Bora, Sr.Adv. Mr.Vinod Sharma, for petitioners.
Mr.KK Rawal, PP, for the respondent State.
Mr.Vineet Jain, for the respondent no.2.
...
BY THE COURT :
REPORTABLE Heard learned counsel for the parties.
The present misc. petition has been preferred by the petitioner seeking quashing of F.I.R. No.66/2011 registered against him at P.S. Jamsar, District Bikaner for the offences under Sections 420, 467, 468, 471 and 120B IPC.
Succinctly stated the facts necessary for the disposal of the instant misc. petition are that the respondent no.2 submitted a complaint to the S.P., Bikaner alleging inter alia that he was having possession of the pattasud land and house at the Village Khara. Patta has been issued by Gram Panchayat, Khara. It was alleged that originally the land was the khatedari land of one Roop Singh and his heirs but thereafter, the State Government acquired the same and 2 the payment of compensation was also received by the khatedars of the land and thereafter, the land was marked as Abadi land of Gram Panchayat, Khara. Gram Panchayat, Khara also issued the pattas to the persons in possession of the lands in question including the complainant. It has been further alleged that accused Rugh Singh and Hadman Singh both sons of Roop Singh owing to rise in land prices started having an evil eye on the property which was already acquired and the pattas whereof had thereafter been issued.
Conniving with certain other property dealers, they created an ante-dated forged agreement of the date 21.2.2007. It was further alleged that the stamp was purchased by one Premji in the name of Ganesh Dan and then a forged agreement was executed on the said stamp for selling the land measuring 38250 sq. yards in an earlier date whereas the land which was sold was abadi land of Khara and that the villagers of Khara were already having possession of the land in question. It was further alleged that the seller and Ganesh Dan connived together for purchasing the said land at ridiculously low price for the purpose of depriving the original owners from the enjoyment of the land in question.
On the basis of the said complaint, FIR No.66/2011 has been registered at P.S. Jamsar which is subject matter of challenge in the instant petition filed on behalf of petitioner Ganesh Dan, alleged purchaser of the property in question.
3Assailing the impugned FIR, learned Sr.Adv.
Mr.Mahesh Bora assisted by learned counsel Mr.Vinod Sharma for the petitioner submitted that in this case even if the allegation of the prosecution is taken to be true, then also ex-facie, there is no material to show that the petitioner committed any offence whatsoever. It is submitted that neither the petitioner gave any inducement to the complainant nor the petitioner has forged any document because admittedly none of the signatures on the sale deed in question have been found to be fraudulently/ falsely appended. It is further submitted that the transaction entered into between the sellers and purchasers does not constitute any act of fraud as defined under Section 415 IPC. It is further submitted that merely by making allegedly wrong connotations in the document, no offence of fraud can be said to be made out and that it is trite law that the seller does not pass on better title then he has. Thus, it is submitted that neither the petitioner has cheated the complainant nor has he created any forged document so as to permit the continuation of the F.I.R. qua the petitioner. Thus, it is prayed that the impugned F.I.R.
qua the petitioner deserves to be quashed. Reliance in support of the arguments has been placed on the judgment of the Hon'ble Apex Court delivered in the case of Mohd.
Ibrahim & Ors. VS. State of Bihar & Anr. reported in 2009 Cr.L.R. (SC) 746 and on the judgment of this Court 4 delivered in the case of Sawai Singh Sankhla & Ors. Vs. State of Rajasthan & Anr. (SB Criminal Misc. Petition No.1491/2011) & other connected cases decided on 25.8.2011.
Learned PP and the learned counsel for the respondent no.2 have submitted that ex-facie the F.I.R. does disclose the ingredients of cheating and forgery and the same should not be interfered with by this Court in exercise of its powers under Section 482 Cr.P.C.
I have given my thoughtful consideration to the arguments advanced at bar and perused the impugned FIR as well as case diary.
From a perusal of the case diary and the FIR impugned, it becomes apparent that none of the signatures appended on the documents are forged admittedly. The sellers Rugh Singh and Hadman Singh claiming the property to be theirs have executed an agreement to sell their property to the present petitioner. The provisions of Contract Act are clear to the effect that a seller does not pass on a better right/title than what he has. Thus, even if Rugh Singh and Hadman Singh made an agreement for selling the property said to be that of the complainant, then obviously the purchaser can only receive that much of the interest/title or rights over the property which the sellers have. It is not the case of the prosecution that the petitioner Ganesh Dan induced the complainant to part with 5 money or valuable security and thus, cheated him. The allegations of the complainant thus even if accepted to be true at their highest, do not constitute the offence of cheating at least by petitioner Ganesh Dan. Furthermore, as has already been discussed above, all the signatures on the documents are admittedly of the persons who are alleged to have signed the same. Though there is an allegation in the FIR that the document was ante-timed but as per the statements of the notary who attested the agreement namely, Mohan Modi, he has admitted that he attested the document on the date which is mentioned in the document.
Thus, so far as the execution of transaction by the petitioner is concerned, the same is beyond any doubt. It may be that the seller might have procured the stamp in an illegal manner and the sellers thus are liable to be prosecuted for the acts which they performed. None of the acts done by the petitioner can be said to be either the acts of cheating or preparing a forged document or conspiring with the same.
The Hon'ble Apex Court in the case of Mohd. Ibrahim (supra) has held as under :-
"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 6 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 as 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 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 7 such person be living or dead at the time of such alteration; or Thirdly.- Who dishonestly or fraudulently causes any person to sign, seal, executed 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.
(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 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.
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 frudulently 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.8
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 by 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 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 bona fide 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 9 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.
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, 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.
10But 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.
A clarification
15. 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. The term 'fraud' is not defined in the Code. The dictionary definition of 'fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines 'fraud' with reference to a party to a contract. In Dr. Vimla v. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression 'defraud' thus "The expression "defraud" involves two 11 elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
The above definition was in essence reiterated in State of UP v. Ranjit Singh- 1999 (2) SCC 617 : (1999 AIR SCW 863).
16. The Penal Code however defines 'fraudulently', an adjective form of the word 'fraud', in Section 25, as follows :
"A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". The term "fraudulently"
is mostly used with the term "dishonestly" which is defined in Section 24 as follows :
"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (Sec. 206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (Sec. 207)
(iii) Fraudulent suffering or obtaining a decree (Sec. 208 and 210)
(iv) Fraudulent possession /delivery of counterfeit coin (Sec. 239, 240, 242 and
243).
(v) Fraudulent alteration/diminishing weight of coin (Sec. 246 to 253)
(vi) Fraudulent acts relating to stamps (Sec. 261-261)
(vii) Fraudulent use of false instruments/weight /measure (Sec. 264 to
266) 12
(viii) Cheating (Sec. 415 to 420)
(ix) Fraudulent prevention of debt being available to creditors (Sec. 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (Sec. 423).
(xi) Forgery making or executing a false document (Sec. 463 to 471 and 474)
(xii) Fraudulent cancellation /destruction of valuable security etc. (Sec. 477)
(xiii) Fraudulently going through marriage ceremony (Sec. 496).
It follows therefore that by merely alleging or showing that a person acted frudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law."
Accordingly, this Court is of the opinion that the F.I.R.
impugned in so far as it relates to the petitioner, does not disclose the cause to proceed against the petitioner.
The upshot of the above discussion is that the present misc. petition deserves to be accepted and is hereby allowed and the proceedings of F.I.R. No.66/2011 registered at P.S. Jamsar, District Bikaner and all subsequent investigation pursuant thereto to the extent of the petitioner only are hereby quashed.
It is made clear that the impugned F.I.R. qua the sellers and any other person who may be found responsible by the investigating agency shall be continued to be investigated.
Stay petition also stands disposed of.
(SANDEEP MEHTA), J.
S.Phophaliya