Madras High Court
Nagaraj vs The State Represented By
Author: P.N. Prakash
Bench: P.N. Prakash
Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 31.07.2019
DELIVERED ON: 29.08.2019
CORAM:
THE HON'BLE MR. JUSTICE P.N. PRAKASH
Crl.R.C. No.28 of 2016 and Crl.A. Nos. 89 & 143 of 2018
Crl.M.P. Nos.3477 & 2059 of 2018 and Crl.M.P. Nos.4896 & 4897 of 2019
Crl.R.C. No.28 of 2016:
Nagaraj Petitioner
vs.
1 The State represented by:
the Inspector of Police
DCB, Dharmapuri
(Cr. No.4 of 2017)
2 K.S. Jagannathan Respondents
(R2 impleaded as per order dated
02.02.2018 passed in Crl.M.P. No.1884 of
2016 in Crl.R.C. No.28 of 2016)
Crl.A. No.89 of 2018:
K.S. Jagannathan Appellant
vs.
1 Nagaraj
2 Manickam
3 Mecheriyammal
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Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018
4 State represented by
the Inspector of Police
District Crime Branch
Dharmapuri
(Cr. No.4 of 2007) Respondents
Crl.A. No.143 of 2018:
K.S. Jagannathan Appellant
vs.
1 Rajangam
2 P. Manivannan
3 Sivam
4 State represented by
the Inspector of Police
District Crime Branch
Dharmapuri
(Cr. No.4 of 2007) Respondents
Criminal Revision filed under Section 397 r/w Section 401 Cr.P.C.
seeking to call for the records and set aside the judgment and order dated
16.10.2015 in Crl.A. No.19 of 2014 on the file of the Additional District and
Sessions Judge, Dharmapuri, partly confirming the judgment and order
dated 05.05.2014 passed in C.C. No.46 of 2008 on the file of the Judicial
Magistrate Court No.I, Dharmapuri.
Criminal Appeals filed under Section 378 Cr.P.C. seeking to set aside
the judgments and orders dated 16.10.2015 passed in Crl.A. Nos. 19 and 20
of 2014 respectively on the file of the District and Sessions Court,
Dharmapuri and confirm the judgment and order dated 05.05.2014 passed
in C.C. No.46 of 2008 of the Judicial Magistrate Court No.I, Dharmapuri.
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Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018
Crl.R.C. No.28 of 2016:
For petitioner Mr. K. Srinivasan
For R1 Mrs. P. Kritika Kamal, Govt. Advocate (Crl. Side)
For R2 Mr. V. Paarthiban
for Mr. A. Ilaya Perumal
Crl.A.No.89 of 2018:
For appellant Mr. V. Paarthiban
for Mr. A. Ilaya Perumal
For RR 1-3 Mr. C.R. Malarvannan
For R4 Mrs. P. Kritika Kamal, Govt. Advocate (Crl. Side)
Crl.A. No.143 of 2018:
For appellant Mr. V. Paarthiban
for Mr. A. Ilaya Perumal
For RR 1-3 M/s. Rajarathinam & Thirumalai
For R4 Mrs. P. Kritika Kamal, Govt. Advocate (Crl. Side)
COMMON JUDGMENT
In view of the commonality of issues, the three cases at hand, viz., one criminal revision and two criminal appeals, are considered and decided by this common judgment.
2 For the sake of convenience and clarity, the parties are referred to by their respective names.
3 The facts, in brief, leading to the filing of the three cases are as under:
3.1 The issue involved in these cases revolves around 25 acres of land in Adhiyamankottai Village in Survey No.867/2 belonging to one Varadammal. The said property was purchased by one T.S. Srinivasan, S/o http://www.judis.nic.in 3/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 Varadammal in bits and pieces vide sale deed dated 17.12.1980 (Ex.P.6), settlement deed dated 22.04.1999 (Ex.P.7) and sale deed dated 21.10.1999 (Ex.P.14). Srinivasan died on 14.11.1999, pursuant to which, his mother Vardammal became entitled to the said property.
3.2 Jagannathan (P.W.1/de facto complainant) is the son-in-law of Srinivasan. Varadammal had given him a registered power of attorney (Ex.P.1) to handle the litigations relating to the said property. It appears that after the demise of Srinivasan, the family of Varadammal had shifted away from the village.
3.3 Nagaraj (A1), a heavyweight in the village, was the Panchayat President of the village from 2006 – 2011 and was also the President of the local cooperative society. Nagaraj (A1) submitted an application dated 17.09.1999 (Ex.P.3) to Rajangam (A5), Tahsildar of the Taluk, wherein, he has stated that the land in S. No.867/2 is his ancestral property and that in the joint patta no.2120, the name of his father Narayanan and his brother Manickam (A3) alone figure; there was an oral partition amongst the family brothers, pursuant to which, each one has been allotted a share in the said property and therefore, the property may be sub-divided and patta be issued in their respective names.
http://www.judis.nic.in 4/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 3.4 The said application was forwarded to Manivannan (A6), V.A.O., and Sivam (A7), Firka Surveyor, for their report. Manivannan (A6), V.A.O., and Sivam (A7), Firka Surveyor, gave a report based on the statements recorded by them from Nagaraj (A1), his brother Manickam (A3) and their mother Mecheriyammal (A4). The three statements were marked as Exs.P.8,9 and 10 respectively. In the said three statements, all of them have stated that the property in S. No.867/2 is their ancestral property and that they had entered into an oral partition, pursuant to which, they have divided the property. Manickam (A3) and Mecheriyammal (A4) have stated that they have no objection in the issuance of patta in favour of Nagaraj (A1).
3.5 On the strength of these statements, Manivannan (A6), V.A.O. submitted a report (Ex.P.11) and Sivam (A7), Firka Surveyor, submitted a report (Ex.P.12) to Rajangam (A5), Tahsildar, recommending issuance of separate patta for Nagaraj (A1). These reports were submitted on 19.11.1999 to Rajangam (A5), Tahsildar, who, in turn, passed an order dated 30.11.1999 (Ex.P.4) sub-dividing the land in S.No.867/2 into S. Nos.867/2A and 867/2B and granted patta for 3.30.5 hectares in S. No.867/2B in the name of Nagaraj (A1).
3.6 On coming to know of this, Jagannathan (de facto complainant) filed an application before Prakasam (P.W.4), R.D.O., stating that Nagaraj http://www.judis.nic.in 5/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 (A1) had no title to the property and that the Revenue officials had colluded to give patta in his favour.
3.7 Prakasam (P.W.4), R.D.O., issued notice to Nagaraj (A1) who entered appearance through his advocate Mr.P.V. Ravi. After conducting a thorough enquiry, Prakasam (P.W.4), R.D.O., by order dated 03.10.2005, (Ex.P.5) held that Nagaraj (A1) had no title to the property and that Rajangam (A5) did not have the authority to effect mutation in an UDR scheme and ultimately, cancelled the order dated 30.11.1999 (Ex.P.4) passed by Rajangam (A5) granting patta in favour of Nagaraj (A1). In the said order, 30 days' time was given to Nagaraj (A1) to appeal against the said order before the District Revenue Officer, Dharmapuri District, which, Nagaraj (A1) did not avail.
3.8 While so, Jagannathan (P.W.1/de facto complainant) filed a petition under Section 156(3) Cr.P.C. before the Judicial Magistrate No.I, Dharmapuri, alleging that Nagaraj (A1), his brothers Lakshmanan (absconding) and Manickam (A3) and their mother Mecheriyammal (A4), had colluded with the Revenue officials to create records as if the land in question belongs to them and obtained patta by impersonation.
3.9 On the orders of the Magistrate, the first respondent police registered a case in Cr. No.4 of 2007 and after completing the investigation, http://www.judis.nic.in 6/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 filed final report in C.C. No.46 of 2008 before the Judicial Magistrate No.I, Dharmapuri against 7 accused, viz., Nagaraj (A1), Lakshmanan (A2 in abscondence), Manickam (A3), Mecheriyammal (A4), Rajangam (A5), Manivannan (A6) and Sivam (A7).
3.10 Since Lakshmanan (A2) was in abscondence, the case was split up against him and proceeded against Nagaraj (A1), Manickam (A3), Mecheriyammal (A4), Rajangam (A5), Manivannan (A6) and Sivam (A7).
3.11 The Trial Court framed charges against the accused, as under, and when questioned, the accused pleaded not guilty.
Provision of law under which
Name of accused & rank
charged
Nagaraj (A1) Ss. 419, 468, 471 and 420 r/w 120-B
IPC
Lakshmanan (A2 in abscondence) Ss. 468, 471 and 420 r/w 120-B IPC Manickam (A3) Mecheriyammal (A4) Rajangam (A5) Manivannan (A6) Sivam (A7) 3.12 To prove its case, the prosecution examined 6 witnesses and marked 27 exhibits.
3.13 When the accused were questioned about the incriminating circumstances appearing against them under Section 313 Cr.P.C., they http://www.judis.nic.in 7/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 denied the same. Nagaraj (A1) examined himself as D.W.1 and marked Exs.D.1 to D.13.
3.14 The Trial Court, after considering the evidence on record and on hearing either side, convicted and sentenced A1 and A3 to A7 in C.C. No.46 of 2008 on 05.05.2014 as under:
Provision under which Name of accused & rank Sentence convicted Nagaraj (A1) S.419 IPC 3 years rigorous imprisonment and fine of Rs.5,000/-, in default to undergo one month simple imprisonment.
S.468 IPC -do- S.471 IPC 2 years rigorous imprisonment and fine of Rs.2,000/-, in default to undergo one month simple imprisonment. Manickam (A3) (i) 468 IPC 3 years rigorous Mecheriyammal (A4) imprisonment and fine of Rajangam (A5) Rs.5,000/-, in default to Manivannan (A6) undergo one month Sivam (A7) simple imprisonment (ii) 471 IPC 2 years rigorous imprisonment and fine of Rs.2,000/-, in default to undergo one month simple imprisonment.
The aforesaid sentences were ordered to run concurrently.
3.15 Challenging the aforesaid conviction and sentence, while Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4) preferred Crl.A. No.19 of 2014, Rajangam (A5), Manivannan (A6) and Sivam (A7) preferred Crl.A. http://www.judis.nic.in 8/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 No.20 of 2014 before the Additional District and Sessions Court, Dharmapuri.
3.16 Both, Crl.A. Nos.19 and 20 of 2014, were heard by the Additional District and Sessions Judge, Dharmapuri and two separate judgments and orders were passed therein on 16.10.2015.
3.17 Crl.A. No.19 of 2014 preferred by Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4) was partly allowed by acquitting Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4) of the charges under Sections 468 and 471 IPC. However, the conviction and sentence slapped by the Trial Court against Nagaraj (A1) for the offence under Section 419 IPC was maintained. Crl.A. No.20 of 2014 preferred by Rajangam (A5), Manivannan (A6) and Sivam (A7) was allowed by acquitting them of the charges under Sections 468 and 471 IPC.
3.18 Assailing the conviction and sentence for the offence under Section 419 IPC passed by the Trial Court as confirmed in appeal, Nagaraj (A1) has preferred Crl.R.C. No.28 of 2016.
3.19 Calling into question the acquittal of Nagaraj (A1) of the charges under Sections 468 and 471 IPC and challenging the acquittal of Manickam http://www.judis.nic.in 9/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 (A3) and Mecheriyammal (A4), Jagannathan (P.W.1/de facto complainant) has preferred Crl.A. No.89 of 2018 under the proviso to Section 372 Cr.P.C.
3.20 Likewise, Jagannathan (P.W.1/de facto complainant) has preferred yet another appeal in Crl.A. No.143 of 2018 challenging the acquittal of Rajangam (A5), Manivannan (A6) and Sivam (A7) invoking the proviso to Section 372 Cr.P.C.
3.21 Thus, there is one criminal revision being Crl.R.C. No.28 of 2016 filed by Nagaraj (A1) challenging his conviction and sentence and two criminal appeals being Crl.A. Nos.89 and 143 of 2018 by Jagannathan (P.W.1/de facto complainant) challenging the acquittals, as stated above.
4 Heard Mr. V. Paarthiban, learned counsel representing Mr.A.Ilaya Perumal, learned counsel on record for Jagannathan (P.W.1/de facto complainant), Mr. C.R. Malarvannan, learned counsel for Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4), Mr. K. Srinivasan, learned counsel for Nagaraj (A1) in the revision, M/s. R. Rajarathinam and Thirumalai, learned counsel for Rajangam (A5), Manivannan (A6) and Sivam (A7) and Mrs. P. Kritika Kamal, learned Government Advocate (Crl. Side) appearing for the respondent State.
http://www.judis.nic.in 10/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 5 Since two appeals against acquittal are required to be determined, this Court re-appreciated the evidence on record.
6 Jagannathan (P.W.1/de facto complainant), in his evidence, has stated that 25 acres of land in Survey No.867/2 in Adhiyamankottai Village was acquired by his father-in-law Srinivasan vide sale deed dated 17.12.1980 (Ex.P.6), settlement deed dated 22.04.1999 (Ex.P.7) and sale deed dated 21.10.1999 (Ex.P.14); the sale deed dated 17.12.1980 (Ex.P.6) has been executed by one A.K. Athmanathan as the Power Agent of his sister Gomathy in favour of Srinivasan; Srinivasan died on 14.11.1999 and his (Srinivasan's) mother Varadammal acquired rights in the property; he (Jagannathan) was managing the 25 acres of land since his grandmother Varadammal was old; in 2000, he learnt that Nagaraj (A1) had obtained patta for his land in respect of 8 acres and therefore, he filed an application before the Revenue Divisional Officer seeking cancellation of the patta that was issued by the Tahsildar; the Revenue Divisional Officer passed order on 03.10.2005 (Ex.P.5) cancelling the order dated 30.11.1999 (Ex.P.4) that was issued by Rajangam (A5) in favour of Nagaraj (A1).
7 As held by both the Courts below, the prosecution has proved that 25 acres of land in S.No.867/2 in Adhiyamankottai Village belonged to Varadammal.
http://www.judis.nic.in 11/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 8 At this juncture, it may be relevant to discuss the application (Ex.P.3) that was submitted by Nagaraj (A1) for transfer of patta. In that application, he has stated that the land in S.No.867/2 is his ancestral property and that the patta number for the said land is 2120 and that there was an oral partition, pursuant to which, the property was divided amongst his family members and therefore, he should be given a separate patta. In the said application, he has not even stated as to how he claims it as his ancestral property. In other words, he has not submitted even an iota of material to show that the property belonged to his ancestors. That apart, he had not even stated as to when the oral partition amongst his family members was effected. He has also not stated as to the extent of land in S.No.867/2 that was allotted to his share under the alleged oral partition.
9 On the strength of this application (Ex.P.3), Manivannan (A6), V.A.O., and Sivam (A7), Firka Surveyor, have submitted reports (Exs.P.11 and 12) recommending issuance of separate patta for Nagaraj (A1). These two officials have merely recorded the statements of Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4) which have been marked as Exs.P.8,9 and 10 respectively. All these three accused, viz., Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4), have given a stereotyped statement saying that the property in S. No.867/2 is their ancestral property and that an oral partition was effected amongst their family members, pursuant to which, shares were allotted to their family members and that they have no objection in separate http://www.judis.nic.in 12/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 patta being given in the name of Nagaraj (A1). Even in their statement, they have not stated as to how they derived title to the property nor have they given the date on which the oral partition was held nor the extent of share that was allotted to Nagaraj (A1). Manivannan (A6) and Sivam (A7) have merely repeated whatever Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4) have said, in their reports (Exs.P.11 and P.12) without even enquiring other villagers or the others whose names figure in Patta No.2120.
10 Much was argued at the bar by the counsel for the accused on the patta (Ex.P.17) and chitta adangal (Ex.D.10). The learned counsel for the accused submitted that at the time when the patta was transferred by Rajangam (A5), V.A.O. in 1999, the chitta adangal (Ex.P.10) showed the name of one Manickam as one of the joint pattadars and that was the basis for effecting the transfer. In other words, they contended that the name “Manickam” in Ex.D.10 is A3, brother of Nagaraj (A1) and that when Manickam (A3) himself had stated “No Objection” in transfer of patta, there was no reason to refuse the request of Nagaraj (A1) for issuance of separate patta in his name. There is a very serious fallacy in this submission.
11 A perusal of Ex.D.10 shows that it bears the names of as many as 25 persons beginning from (1) Athmanathan, (2)Gomathy ..... (17) Manickam ......... When that is the position, Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor, should have enquired the joint pattadars or at http://www.judis.nic.in 13/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 least one or two amongst them. As adverted to earlier, the property was sold vide sale deed dated 17.12.1980 (Ex.P.6) by Atmanathan as Power Agent of his sister Gomathy in favour of Srinivasan. The name of Atmanathan and Gomathy figure in the chitta adangal (Ex.D.10). This only shows that even after the purchase of the property by Srinivasan, he had not cared to effect changes in the Revenue records and soon after the purchase, he has died on 14.11.1999. Pertinent it is to point out that the name Manickam found in Serial No. 17 in Ex.D.10 does not carry his father's name.
12 The learned counsel for the accused contended that Ex.D.10 contains the name of Narayanan, S/o Abimannan and that, that Narayanan is the father of Nagaraj (A1) and Manickam (A3). Prakasam (P.W.4), R.D.O., who passed the order dated 03.10.2005 (Ex.P.5) cancelling the order passed by Rajangam (A5), Tahsildar, has stated in his evidence that he gave sufficient time to both sides to submit their title deeds. However, from the order (Ex.P.5), it is clear that Nagaraj (A1) group did not produce any document, whereas, Jagannathan (P.W.1/de facto complainant) produced the title deeds. The prosecution has examined Venkatesan (P.W.3), Record Clerk in the office of the Tahsildar, Dharmapuri, who has marked Patta No.2120 as Ex.P.17.
13 As stated earlier, the learned counsel for the accused submitted that the patta No.2120 (Ex.P.17) was generated only on 23.10.2009, the http://www.judis.nic.in 14/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 date on which, Venkatesan (P.W.3), Record Clerk, came to give evidence, whereas, mutation of the Revenue records was made by Rajangam (A5) on 30.11.1999. In the State of Tamil Nadu, Revenue records have been digitised. Therefore, when the Court directed the Revenue officials to produce the patta, Venkatesan (P.W.3), Record Clerk, produced Ex.P.17 and it bears the signature of the Tahsildar of Dharmapuri District who is the head of the department. In that patta, the 1st name is Atmanathan, the 2nd name is Gomathy and the 17th name is Manickam. This somewhat tallies with the chitta adangal (Ex.D.10), which was relied upon by the accused himself, wherein, the 1st name is Atmanathan, the 2nd name is Gomathy and the 17th name is Manickam. In patta no.2120 (Ex.P.17), the father's name of Manickam has been shown as “Chinnasamy”. It is the contention of the accused that only subsequently, the father's name has been included in the Revenue records. If that had been the case of the accused, they should have confronted Venkatesan (P.W.3), Record Clerk while he was in the witness box with the chitta adangal (Ex.D.10). Even in the Section 313 Cr.P.C. statement of the accused, no such defence has been taken. Only for the first time, Nagaraj (A1) got into the witness box and marked Ex.D.10 (chitta adangal). This Court perused the chitta adangal (Ex.D.10) and found that it was a photocopy of the chitta. Venkatesan (P.W.3) has further stated that Chinnasamy, father of Manickam died on 27.12.1985 and his death certificate has been marked as Ex.P.18. The legal heirship certificate of the deceased Chinnasamy, which has been marked as Ex.P.19, does not contain http://www.judis.nic.in 15/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 the name of Nagaraj (A1). The defence had not cross-examined Venkatesan (P.W.3), Record Clerk, on these aspects at all. Admittedly, Nagaraj (A1) is the blood brother of Manickam (A3) and their father's name is “Narayanan” and not “Chinnasamy”.
14 Nagaraj (A1) examined himself as D.W.1 and marked Exs.D.1 to D.13 to show that he was in possession of the property. These exhibits have come into being only aftermath the order of transfer of patta dated 30.11.1999 (Ex.P.4) that was passed by Rajangam (A5), Tahsildar In other words, after obtaining transfer of patta in his name clandestinely, Nagaraj (A1) has submitted the same to various authorities and had created further records in his favour. Even in his evidence, Nagaraj (A1) has not traced the title to the property but has merely stated that the property was his ancestral property and that there was an oral partition amongst his family members.
15 On a conspectus of the facts obtaining in this case, this Court finds that the prosecution has proved beyond doubt that the property in question belongs to the family of Varadammal. After purchasing the property, the family did not take steps to apply for mutation of Revenue records because Srinivasan, son of Varadammal had an untimely death on 14.11.1999. There are 25 pattadars in Patta No.2120 (Ex.P.17) in respect of the said property, of which, one Manickam is the 17th pattadar. Nagaraj (A1), http://www.judis.nic.in 16/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 being a local politician and also an influential person, was aware that the family of Varadammal had moved out of the village. Nagaraj's (A1's) brother's name is Manickam. Therefore, he gave an application (Ex.P.3) to Rajangam (A5), Tahsildar, for deleting the name of Manickam found in Patta No.2120 and include his name as pattadar. Based on this application, Manivannan (A6) and Sivam (A7) conducted a perfunctory enquiry to aid the evil designs of Nagaraj (A1) and submitted reports (Exs.P.11 and P.12). They did not even take care to enquire with the other pattadars and were rest content with merely recording the statements of Nagaraj (A1), Manickam (A3) and Mecheriyammal (A4). Based on the order passed by Rajangam (A5), Tahsildar, granting patta to Nagaraj (A1) to an extent of 3.30.5 hectares when he had not even asked for that extent, Nagaraj (A1) then took illegal possession of the property and built a house thereon.
16 As stated above, in a large extent of 14.99.5 hectares in S.No.867/2, Rajangam (A5), Tahsildar, has issued patta in respect of 3.30.5 hectares to Nagaraj (A1) without even specifying the boundaries. In fact, even in the application given by Nagaraj (A3), the boundaries have not been stated. All these would not have occurred if the accused had not conspired. Conspiracy is hatched in secrecy and seldom will the police get direct evidence to nail all the conspirators. Such an inference can be drawn based http://www.judis.nic.in 17/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 on proved circumstances. (See Kehar Singh and others vs. State-Delhi Administration1).
17 The Sessions Court, in Crl.A. No.20 of 2018, has acquitted Rajangam (A5), Tahsildar, Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor, on the short ground that the prosecution had not obtained sanction under Section 197 Cr.P.C.
18 Be it noted that Section 197 Cr.P.C. will apply only to Rajangam (A5), Tahsildar, because, he alone needs to be removed from service by the Government and not Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor, who can be removed from service by the District Collector. That apart, for entering into a criminal conspiracy to help Nagaraj (A1) in obtaining a patta in respect of a land which does not belong to him by impersonation, no sanction is required at all for prosecuting Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor. It is no part of the duty of any public servant to aid criminals in concocting documents.
19 However, Rajangam (A5), Tahsildar, had merely acted on the reports (Exs.P.11 and P.12) which were submitted by Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor. Thus, Rajangam (A5) had issued the 1 AIR 1988 SC 1883 http://www.judis.nic.in 18/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 order (Ex.P.4) granting patta to Nagaraj (A1), while acting in the discharge of his official duty, for which, sanction under Section 197 Cr.P.C. is required.
20 Now, the next question that is required to by answered by this Court is whether the accused can be convicted under Sections 468 and 471 IPC.
21 Sections 468 and 471 IPC will stand attracted only if the ingredients of Section 464 IPC stand satisfied. Mrs. Kritika Kamal, learned Government Advocate (Crl. Side) contended that the application for patta (Ex.P.3) submitted by Nagaraj (A1), the report by Manivannan (A6), V.A.O. and the sketch prepared by Sivam (A7), Firka Surveyor, are all false documents, thereby attracting Section 464 IPC. She took this Court through Section 464 IPC and submitted that the provision employs two distinct expressions, viz., “make” and “sign” which clearly mean that both the said elements need not be present to make a document false.
22 Refuting the contention of the learned Government Advocate (Crl. Side), the defence contended that the accused had not prepared any false document within the meaning of Section 464 IPC and even assuming but without admitting that the accused had submitted the application seeking patta (Ex.P.3) with false averments, that, by itself, will not attract Section 464 IPC. In support of this contention, reliance was placed on the http://www.judis.nic.in 19/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 judgment of the Supreme Court in Mohammed Ibrahim and others vs. State of Bihar and another2, wherein, the Supreme Court, while discussing the various limbs of Section 464 IPC, has held as under in paragraph nos.16 and 17:
“16. 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 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.
17. 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.” (emphasis supplied) Thus, the contention of the defence is that false averments, per se, in a document will not attract Section 464 IPC and as a sequel, Sections 468 and 471 IPC also will not stand attracted.
23 This Court gave its careful thought to the aforesaid submissions. The locus classicus on what constitutes a false document 2 (2009) 8 SCC 751 http://www.judis.nic.in 20/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 within the meaning of Section 464 IPC is the 5 Judge Bench judgment of the Madras High Court in Kotamraju Venkatrayadu vs. Emperor3, wherein, Sir Arnold White, Chief Justice, expounded the law as follows:
“Intending to defraud means, of course, something more than deceiving. A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seems to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would he to the loss or detriment of B, A intends to defraud B. Sir James Stephen, in his ‘History of the Criminal Law of England,’ Vol. II, page 121, observes: “Whenever the words ‘fraud,’ or ‘intent to defraud,’ or ‘fraudulently’ occur in the definition of a crime, two elements at least are essential to the commission of the crime; namely, first, deceit or an intention to deceive, or in some cases, mere secrecy; and secondly, either actual injury, or possible injury, or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy.” “This intent,” he adds, “is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal object in nearly every case is his own advantage…. A practically conclusive test of the fraudulent character of a deception for criminal purposes is this: Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known? If so it is hardly possible that the advantage should not have had an equivalent in loss or risk of loss to some one else, and, if so, there was fraud.....” The above passage has received the approval of the Supreme Court in Dr.Vimla vs. Delhi Administration4 and governs the field till date.
24 On the flip side, this Court is unable to resist the temptation to extract the following interesting and bewildering passage from Kotamraju Venkatrayadu (supra), which throws light on the situation that obtained in the educational institutions in our society even in 1902:
“From the evidence of Mr. Patterson, it seems that the University is the victim of so many tricks on the part of candidates for
3 ILR (1905) 28 Mad 90 4 AIR 1963 SC 1572 http://www.judis.nic.in 21/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 examination, that it keeps a regular malpractice register and is constantly on its guard to frustrate their designs.” (In the above judgment, the expression “University” refers to the Madras University which was established in 1857) What is happening in our Universities today is no different. Therefore, one can justifiably infer that history repeats itself. The only difference is, in 1902, the Universities had to open a malpractice register, but, today, they may have to open a malpractice database.
25 Now, let us examine the charge that was framed against the accused in this case by the Trial Court, which is as follows:
“tujk;kkhspd; gf;fj;J epyj;Jf;fhuh;fshd 1 Kjy; 4 vjphpfs; muR mjpfhhpfshd 5 Kjy; 7 vjphpfspd; cjtpa[ld; thjpapd; brhj;ij mgfhpf;Fk; nehf;fj;Jld; bgha; Mtzk; jahh; bra;J Ms;khwhl;lk; bra;J Vkhw;wpa[s;sjhft[k;. nkw;go rjp jpl;lj;jpd; bjhlh;r;rpahf 1?tJ vjphp 5?tJ vjphpahd jhrpy;jhhplk; rh;nt ek;gh; 867-2y; cs;s 25 Vf;fhpy; 8 Vf;fh; epyj;ij khzpf;fk; vd;gthpd; rnfhjuh; Tl;L gl;lhthf ,Ug;gjhft[k;. mij jdJ bgaUf;F khw;wp bfhLf;Fk;go bgha;ahf kD bfhLj;J 1?tJ vjphpapd; bgaUf;F 1 Kjy; 4 vjphpfsplk; bgha;ahd thf;FK:yk; bgw;W mjid fpuhk eph;thf mYtyh; Mf ,Ue;j 6?tJ vjphp gjpt[ bra;jjhft[k;. nkw;go 8 Vf;fh; epyj;ij mse;J ghh;f;fhknyna 7?tJ vjphpahfpa gph;fh rh;ntah; nkw;go http://www.judis.nic.in 22/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 epyj;jpw;F tiuglk; jahh; bra;J bfhLj;J. 5?tJ vjphp 6 kw;Wk; 7 vjphpfsplk; thf;FK:yk; gjpt[ bra;J 611-257- 1999?2000-v8 vd;w vz;zpy; cj;jut[ tH';fpa[s;sjhft[k;.
cz;ikahd brhj;jpd; chpikahsuhd tujk;khs;
,Uf;Fk;nghJ bjhpe;nj ntz;Lk; vd;nw yhgk; mila[k;
nehf;fj;Jld; rjpj;jpl;lk; jPl;o bgha; Mtzk; jahh; bra;Jk; Ms;khwhl;lk; bra;Jk; 5?tJ vjphp nghypahf gl;lh khWjy; bra;jij fz;Lgpoj;J 30/10/2005y; jUkg[hp tUtha; nfhl;lhl;rpah; mtUf;F kD bra;J mjd; mog;gilapy; nghyp gl;lh uj;J bra;ag;gl;Ls;sJ.”
26 The pith and substance of the charge in English is as follows:
In order to usurp the property of Varadammal, Nagaraj (A1), Lakshmanan (A2-absconding accused), Manickam (A3) and Mecheriammal (A4), being the owners of the lands adjacent to the land of Varadammal, with the help of Rajangam (A5), Manivannan (A6) and Sivam (A7) who are Government officials, created false documents and committed offences of impersonation and cheating. Pursuant to the conspiracy, Nagaraj (A1) submitted a false application to Rajangam (A5) stating that the patta for the land measuring 8 acres out of 25 acres in S.No.867/2 stands in the name of his brother Manickam (A2) as joint patta with a request to transfer the patta in his (Nagaraj's) name; that Manivannan (A6), V.A.O., recorded false http://www.judis.nic.in 23/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 statements from A1 to A4 and recommended for change of patta in the name of Nagaraj (A1); that Sivam (A7), Firka Surveryor, prepared a report without even measuring the land, based on which, Rajangam (A5) has transferred patta in the name of Nagaraj (A1), knowing full well that the real owner of the property is Varadammal.
27 What is a patta? Albeit patta does not confer title to a property, it is a very important document which is issued by the Revenue authorities to show possessory rights. After a person purchases a property by a registered sale deed, he would take steps with the Revenue authorities to change the patta in his name, for which, the Village Administration Officer and Firka Surveyor will have to inspect the property and if the purchaser is in possession of the property, the patta transfer will be effected. Thus, a patta is a key document for obtaining building permission, electricity connection, water connection, etc. 28 In the instant case, Varadammal's son Srinivasan, who is the father-in-law of Jagannathan (P.W.1), purchased 25 acres of land in S.No.867/2 vide documents Exs.P.6,P.7 and P.14. The purchase was from A.K. Atmanathan, who is the power agent of his sister Gomathy. The purchase was in the year 1999 and Srinivasan died on 14.11.1999 itself. According to Jagannathan (P.W.1), after the demise of Srinivasan, he was managing the property. However, after purchase, no step was taken to effect http://www.judis.nic.in 24/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 changes in the Revenue records, perhaps, because, Srinivasan died on 14.11.1999. In patta no.2120 (Ex.P.17) and in the chitta adangal (Ex.D.10), the first two names are Atmanathan and Gomathy. The 17th name in both the documents is Manickam. The prosecution has proved that Manickam referred to in those two documents is Manickam, son of Chinnasamy and Chinnasamy's death certificate was marked as Ex.P.18 and his legal heirship certificate was marked as Ex.P.19. Incidentally, the name of Nagaraj's (A1's) brother is also Manickam. Taking advantage of this fact, Nagaraj (A1) submitted the application for patta (Ex.P.3), as if the land in question is his ancestral property and that the name Manickam figuring in the chitta adangal (Ex.D.10) and patta no.2120 (Ex.P.17) is his brother Manickam (A3). Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor, cannot feign ignorance of these facts, because, they are presumed to know the inhabitants of the village. It is common knowledge that in the countryside, the Village Administrative Officer and Firka Surveyor are de facto emperors for the villagefolk, because, they are the custodians of the Revenue records of the village and know their inhabitants like the back of their hand. Villagers, perforce, are at the mercy of these Revenue officials. for obtaining every conceivable certificate. Even an ant cannot enter or exit the village without their knowledge. Assuming for a moment that they did not know, had they perused the village records, it would have come to light that Manickam referred to in patta no.2120 (Ex.P.17) and chitta adangal (Ex.D.10) is Manickam, son of Chinnasamy, whereas, Nagaraj (A1) and his http://www.judis.nic.in 25/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 brother Manickam (A3) are sons of Narayanan. Patta no.2120 (Ex.P.17) and chitta adangal (Ex.D.10) bear the names of 25 persons beginning from Atmanathan and Gomathy and ending with Abhimannan. When that is so, Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor, did not record the statements of any of the persons referred to in the patta, but, merely recorded the statements of Nagaraj (A1), his brothers Lakshmanan (A2) and Manickam (A3) and their mother Mecheriammal (A4) and submitted reports (Exs.P.11 and P.12) respectively to Rajangam (A5), Tahsildar, recommending transfer of patta of 8 acres of land in the name of Nagaraj (A1). If the application of Nagaraj (A1) with false averments is seen in isolation, then, one can say that the charge under Section 464 will not stand attracted by placing reliance on Mohammed Ibrahim (supra). But, if the facts are seen cumulatively, it will come to light that the accused, with the common intention to defraud, have all along projected Manickam (A3), son of Narayanan as if he is the same Manickam, son of Chinnasamy, whose name figures in Patta No.2120 (Ex.P.17) and chitta adangal (Ex.D10). On this basis, they have managed to transfer the patta in the name of Nagaraj (A1) vide Ex.P.4. In other words, Nagaraj (A1) and his family members were projecting themselves as belonging to the family of Manickam, son of Chinnasamy, whose name figures as the 17th name in Patta No.2120 (Ex.P.17) and chitta adangal (Ex.D.10). The offence of forgery requires the making of a false document. A false document has been defined in Section 464 IPC. For the present, suffice it to say that the prosecution has proved, http://www.judis.nic.in 26/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 beyond reasonable doubt, that the application form (Ex.P.3) was submitted with the intention of causing it to be believed that the applicants were the family members of Manickam, son of Chinnasamy. The dishonest making of the application form, coupled with the use of that form to kickstart a trail of deceit, eventually culminating with the issuance of the patta, clearly brings home the offence of forgery. The cancellation of the change of patta order (Ex.P.4) by Prakasam (P.W.4), Revenue Divisional Officer, in his proceedings (Ex.P.5) subsequently, after the intervention of Jagannathan (P.W.1/de facto complainant), will, by no stretch of imagination, efface the offence. Neither before the Revenue Divisional Officer nor before the Trial Court, Nagaraj (A1) produced even a scintilla of record to show that their family has title to the property and that there was an oral partition amongst the family members. Whereas, both before the Revenue Divisional Officer as well before the Trial Court, Jagannanthan (P.W.1/de facto complainant) has produced sale deeds (Exs.P.6 and P.7) and settlement deed (Ex.P.14) to show the title to the property. Therefore, the acquittal of the accused under Sections 468 and 471 IPC by the Sessions Court is clearly perverse.
29 Though in the body of the charge, there is a reference to conspiracy, the Trial Court had framed the charge for conspiracy only for the offence under Section 420 IPC and had left out the charge of conspiracy for the offences under Sections 468 and 471 IPC, which, in the opinion of this Court is too technical, because, the charge clearly speaks about the http://www.judis.nic.in 27/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 conspiracy amongst the seven accused to usurp Varadammal's land, pursuant to which, they created false documents. Even otherwise, the accused can be convicted with the aid of Section 34 IPC though there is no specific charge thereto, because, they have all shared a common intention to create false documents and effect patta transfer. Be it noted that Section 34 is not a substantive penal section, but, is a rule of evidence. (See Ramji Singh and another vs. State of Bihar5). There is a general misconception that Section 34 IPC would apply only in cases of physical violence. It is not so. In this context, it is apropos to allude to the following sapient passage from the judgment of the Supreme Court in Jaikrishnadas Manohardas Desai and another vs. State of Bombay6:
“7. . . . . .But the essence of liability under Section 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under Section 34 is not, on the words of the statute, one of the conditions of its applicability. As explained by Lord Sumner in Barendra Kumar Ghose v. King-Emperor [LR 52 IA 40 at p. 52] the leading feature of Section 34 of the Indian Penal Code is “participation” in action. To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons; the participation must be in doing the act, not merely in its planning. A common intention — a meeting of minds — to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of Section 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places. . . . ” (emphasis supplied) 5 (2001) 9 SCC 528 6 AIR 1960 SC 889 http://www.judis.nic.in 28/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 Coming to the case at hand, the false documents so created, got elevated to forgery as defined under Section 463 IPC, inasmuch as, the accused submitted the same to Rajangam (A5), Tahsildar and obtained the order of transfer of patta (Ex.P.4) with which, Nagaraj (A1) obtained building permission and constructed a building on the land which did not belong to him. Therefore, the acts proved against the accused would attract the provisions of Sections 468 and 471 IPC.
30 Coming to the patta transfer order dated 30.11.1999 (Ex.P.4) issued by Rajangam (A5), Tahsildar, Mrs. Kritika Kamal contended that the said document is also a false document as the patta has been transferred in the name of Nagaraj (A1) in respect of a land over which neither Nagaraj (A1) nor his family members had even a scintilla of right. This Court is unable to agree with this submission, because, the patta was transferred by Rajangam (A5), Tahsildar, based on the reports submitted by Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor. As held by this Court, Manivannan (A6), V.A.O. and Sivam (A7), Firka Surveyor, were acting in tandem with Nagaraj (A1), who wielded considerable influence over the village administration, he being a political heavyweight in the village. It is not the case of the prosecution that the patta transfer order (Ex.P.4) was manufactured by the accused. It is the specific case of the prosecution that Rajangam (A5), Tahsildar, issued the patta transfer order (Ex.P.4), which was ultimately set aside by the Revenue Divisional Officer on 03.10.2005 vide the patta http://www.judis.nic.in 29/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 cancellation order (Ex.P.5). Hence, there is no material to reverse the acquittal of Rajangam (A5) by the Sessions Court. Since Mecheriammal (A4) died on 09.09.2017, the appeal against her acquittal abates.
31 In view of the foregoing discussion, the conviction and sentence imposed by the Trial Court in C.C. No.46 of 2008 vide judgment and order dated 05.05.2014 on Nagaraj (A1), Manickam (A3), Manivannan (A6) and Sivam (A7) are restored.
32 In the result:
➢ the conviction and sentence imposed on Nagaraj (A1) for the charge under Section 419 IPC are confirmed and as a sequel, Crl.R.C. No.28 of 2016 preferred by Nagaraj (A1) challenging his conviction and sentence for the offence under the said Section stands dismissed. ➢ Crl.A. No.89 of 2018 preferred by Jagannathan (P.W.1/de facto complainant) stands abated qua Mecheriammal (A4) inasmuch as she died on 09.09.2017 during the pendency of appeal before this Court and in respect of Nagaraj (A1) and Manickam (A3), Crl.A. No.89 of 2018 stands allowed.
➢ The acquittal of Rajangam (A5) by the Sessions Court of the charges under Sections 468 and 471 IPC is confirmed. However, the acquittal http://www.judis.nic.in 30/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 of Manivannan (A6) and Sivam (A7) of the charges under Sections 468 and 471 IPC by the Sessions Court is set aside. As a sequel, the conviction and sentence slapped on Manivannan (A6) and Sivam (A7) for the charges under Sections 468 and 471 IPC by the Trial Court stand restored. Crl.A. No.143 of 2018 is, thus, allowed in part. To sum up, Crl.R.C. No.28 of 2016 is dismissed; Crl.A. No.89 of 2018 is allowed qua Nagaraj (A1) and Manickam (A3) and stands abated qua Mecheriammal (A4); and Crl. A. No.143 of 2018 is allowed in part, as indicated in paragraph no.32, supra. Connected Crl.M.Ps. are closed. The Trial Court is directed to secure the presence of Nagaraj (A1), Manickam (A3), Manivannan (A6) and Sivam (A7) and commit them to prison to undergo the period of sentence imposed by the Trial Court.
29.08.2019 cad To 1 The Inspector of Police District Crime Branch, Dharmapuri 2 The Additional District and Sessions Judge Dharmapuri 3 The Judicial Magistrate Court No.I Dharmapuri http://www.judis.nic.in 31/32 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 P.N. PRAKASH, J.
cad 4 The Public Prosecutor High Court of Madras Chennai 600 104 5 The Deputy Registrar Criminal Side with a direction to transmit the High Court of Madras original records to the Trial Court Chennai 600 104 forthwith Crl.R.C. No.28 of 2016 and Crl.A. Nos. 89 & 143 of 2018 29.08.2019 http://www.judis.nic.in 32/32