Rajendra Prasad Gupta & Ors. vs State Of Jharkhand & Ors. on 8 January, 2013

[Cites 9, Cited by 2]

Jharkhand High Court

Rajendra Prasad Gupta & Ors. vs State Of Jharkhand & Ors. on 8 January, 2013

This application has been filed for quashing of the order dated 1.3.2005, passed in P.C.R. Case No. 249 of 2004, whereby and whereunder, the then Additional Chief Judicial Magistrate, Rajmahal took cognizance of the offences punishable under Sections 120B, 420, 467 and 368 of Indian Penal Code against the petitioners and others including Nirmal Kedia (accused no. 9) and Piyush Kedia (accused no. 8).

According to the case of the complainant as it appears from the complaint petition, certain piece of land had been purchased/acquired by the complainant from one Baijnath Kedia either in his name or in his brother's name, but same land was sold by Nirmal Kedia (accused no. 9), son of Baijnath Kedia, and Piyush Kedia (accused no. 8), grand-son of Baijnath Kedia, to these petitioners though the land after being sold by Baijnath Kedia never belongs to them.

On such allegation, complaint bearing P.C.R. Case No. 249 of 2004 was instituted in which cognizance of the offences punishable under Sections 120B, 420, 467 and 368 of Indian Penal Code was taken against the petitioners and others including Nirmal Kedia (accused no. 9) and Piyush Kedia (accused no. 8). That order is under challenge.

Mr. Rajeeva Sharma, learned counsel appearing for the petitioners, submits that accepting the entire allegation made in the complaint to be true, no offence whatsoever is made out either under Section 420 or under Sections 467 and 368 of Indian Penal Code against the petitioners and that the order taking cognizance has already been quashed by this Court so far as accused namely, Nirmal Kedia and Piyush Kedia, are concerned, for the reason that the case of the complainant lies within the realm of civil dispute.

Having heard learned counsel for the parties and on perusal of the records, it does appear that Nirmal Kedia and Piyush Kedia, claiming themselves to be the owner of the land, had sold the land, which, according to the complainant, belongs to them, to these petitioners. In such situation, no offence of forgery is made out in view of the decision rendered by the Hon'ble Supreme Court in a case of Mohammed Ibrahim and others Vs. State of Bihar and another [(2009) 8 SCC 751] = [2009 (4) JLJR (SC) 75], wherein their Lordships after having regard to the provision as contained in Section 470 as well as other provisions relating to forgery observed 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:

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, execution of such document cannot be said to be a false document in terms of Section 464 of Indian Penal Code and if it is not a false document, then the question of committing offence under Sections 467 and 468 of IPC does not arise.

So far as the offence of cheating is concerned, it is not the case of the complainant that any of the accused persons including the petitioners tried to deceive him either by making a false or misleading representation or by any other action or omission, nor it is his case that he was fraudulently or dishonestly induced 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. Thus, no offence either under Section 420 or even under Sections 467 and 468 of Indian Penal Code is made out.

Accordingly, the entire criminal proceeding of P.C.R. Case No. 249 of 2004, including the order dated 1.3.2005, taking cognizance of the offences punishable under Sections 120B, 420, 467 and 368 of Indian Penal Code against the petitioners, is hereby quashed.

In the result, this application is allowed.

(R.R. Prasad, J.) AKT

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Jharkhand High Court