Jharkhand High Court
Naresh Kumar vs State Of Jharkhand Through S.P on 5 April, 2013
Author: R.R.Prasad
Bench: R.R.Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.Cr. No. 497 of 2010
Naresh Kumar.... ............. Petitioner
Versus
State of Jharkhand through S.P. Vigilance, Ranchi......Opp. Party
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Coram: Hon'ble Mr. Justice R.R.Prasad
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For the Petitioner : Mr. Sujit Narayan Prasad, Advocate
For the Vigilance : Mr. Shailesh, Advocate
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10./05.04.2013Heard the learned counsel appearing for the petitioner and the learned counsel for the Vigilance.
This application has been filed for quashing of the entire criminal proceeding of Vigilance Case No. 33 of 2002 (Special Case No. 38 of 2002) registered under Sections 420/423/424/467/468/469/471/477/ 201/120 B/109 of the Indian Penal Code and also under Section 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 as well as the order dated 18/11/2009, whereby and whereunder cognizance of the offence punishable under Sections 420 /423 /424/ 467/ 468/ 469/ 471/ 477 / 201 /120B /109 of the Indian Penal Code and also under Section 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, has been taken against the petitioner.
The facts, giving rise to this application, are that certain land measuring total area of 10.95 acres, appertaining to Khata No. 360, Plot No. 1260 situated at MouzaHundru was recorded in record of right as Gairmazurwa Land. Out of the said land measuring 10.95 acres Jamabandi with respect to land measuring 3.12 acres was opened in the name of Chandan Sao S/o Samu Sao and Bharat Sao. Much thereafter, one rent receipt was issued in the year 1968 in favour of Chandan Sao and Bharat Sao, who, subsequently, sold the land to Mahavir Kashi, the then Secretary of Jai Bhawani Cooperative Society in the year 198889, whose name was mutated in the records of right by the then Circle Officer Sri J.N.Singh. Immediately thereafter, the Secretary of Jai Bhawani Cooperative Society sold the land to the Members of the Society. After purchasing the land, the Members of the Society made applications for mutating the land in their favour. Acting upon those applications, mutation cases were registered as 1970/198889, 1969/8889, 2288/8990, 2291/8990 and 2405/8990 and then order was passed for mutating the names of the Members of the Society against the lands purchased by them.
Since the land initially had been recorded as Gairmazurwa Land, transfers of said land to different persons were considered to be illegal and, therefore, a case was lodged by the Inspector, Vigilance against several persons including this petitioner on the allegation that all those persons have committed offence of forgery, cheating and misappropriation etc. Upon submission of the chargesheet, cognizance of the offences, as aforesaid, was taken against the petitioner vide order dated 18/11/2009, which is under challenge.
Learned counsel for the petitioner submits that though initially the land was recorded as Gairmazurwa Land rent receipts with respect to that land were issued in favour of Chandan Sao, when Jamabandi was opened in his name and the name was recorded in RegisterII. Thereafter he transferred the land to Mahavir Kashi, the then Secretary of Jai Bhawani Cooperative Society, who, in turn, sold the land to different persons whose names were mutated by this petitioner against the land sold to them as the name of the vendor was there from before in Register II and thereby the petitioner cannot be said to have committed any offence either of cheating, forgery or misappropriation nor they can be said to have committed offence of criminal misconduct and thereby the petitioner cannot be held responsible for commission of any offence either under the Indian Penal Code or under the Prevention of Corruption Act.
It was further submitted that how the petitioner can be instrumental in getting the rent receipts issued in the name of Chandan Sao when he was not in picture at all at that time. It was further submitted that the petitioner after noticing that the land has been recorded in the name of Secretary of Jai Bhawani Coopoerative Society, got the names of transferees, to whom lands were sold by the Secretary of Cooperative Society, mutated against the land purchased by them and thereby, the petitioner has not committed any offence under which cognizance of the offences has been taken and, therefore, the order taking cognizance is fit to be quashed.
As against this, Mr. Shailesh learned counsel appearing for the Vigilance, submits that admittedly the land, in question was recorded as Gair Mazurua Land which land had never been settled to Samu Sao still Samu Sao managed to get the rent receipts issued in his favour against that land and then in connivance with the Government officials, he got his name mutated against the land, in question. After his death, his sonChandan Sao inherited the property. He also in connivance with the Government officials by illegal means got that land mutated in his name. The same is the case with the subsequent transferees against whose name, the land was mutated by this petitioner though the petitioner under a Circular had been restrained from opening jamabandi without having approval of the S.D.O. In the circumstances, the question does arise as to whether the allegation made in the F.I.R. does constitute the offence of cheating, forgery, misappropriation or even the offence under the Prevention of Corruption Act?
It need not to be recorded in detail the manner in which the land was transferred to the petitioner except the fact that the petitioner who at the relevant point of time was the Circle Officer got the names of the transferees to whom land had been sold by the Secretary of the Cooperative Society mutated against the land sold to them on account of the fact the name of transferor had already been recorded in Register II and under these circumstances, how the petitioner can be said to have committed offence of forgery. In this regard, I may refer to a decision rendered in a case of "Mohammed Ibrahim and Ors. vs. State of Bihar and Anr. {(2009) 8 SCC 751} = {2009 (4) JLJR (SC) 75}", wherein their Lordships after having regard to the provision contained in Section 470 of the I.P.C. as well as other provisions relating to forgery did observe as follows : "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."
The Court has further observed that analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories as follows:
" 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. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a documents in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
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 be reason of:
(a) unsoundness of mind; (b) intoxication; or (c) deception practiced 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 statement', if
(i) he made or executed a document claiming to be someone else or authorized by some one 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.
The sale deeds executed by the first appellant clearly and obviously do not fall under the second and third categories of "false statement". 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 the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the fist 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 authorized 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 document", 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 authorized 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 us 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."
Thus, it has been categorically held that when a document is executed by a person claiming a property though it is not his property but when he is not claiming that he is authorized by someone else or he is someone else, execution of such document cannot be said to be a false document in terms of Section 464 of the Indian Penal Code and if it is not a false document, then the question of committing an offence under Sections 467, 468 and 471 does not arise.
The ratio laid down in the aforesaid case equally applies in this case as the transferor, who always claimed the properties as his own, can never be said to have committed offence of forgery by transferring the land through sale deed to different persons in whose names land was mutated by this petitioner and thereby the question of committing offence of forgery by this petitioner never arises.
Going further in the matter, one can hardly conceive as to how offence under Sections 423 and 424 of IPC is made out when there has been no case of dishonest or fraudulent execution of deed of transfer containing false statement of consideration nor it is the case of dishonest or fraudulent removal of concealment of the property.
Likewise in the facts and circumstances of the case, when the petitioner having been found that the name of the transferor has already been recorded in Register II got the names of the transferees who had purchased the land from the Secretary whose name had already been recorded in Register II mutated against the land purchased, the petitioner can never be said to have committed offence of cheating as defined under Section 415 of Indian Penal Code punishable under Section 420 of Indian Penal Code.
Further in the facts and circumstances, in absence of any factual fact constituting offence under Section 13(I)(d) of the Prevention of Corruption Act, the petitioner cannot be said to have committed offence under Section 13(1)d of the Prevention of Corruption Act.
Under the circumstances, entire criminal proceeding of Vigilance Case No. 25 of 2000 (Special Case No. 12 of 2000) including the order dated 18/11/2009, taking cognizance, is hereby quashed, so far the petitioner is concerned.
In the result, this application stands allowed.
(R.R.Prasad, J) Mukund/cp.3