Gujarat High Court
Rashmikant Purshottambhai Patel, ... vs State Of Gujarat on 18 January, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 2799 of 2010
With
R/CRIMINAL MISC. APPLICATION NO. 2801 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RASHMIKANT PURSHOTTAMBHAI PATEL, THRO' POWER OF
ATTORNEY & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
=============================================
Appearance in Cr.M.A. No.2799 of 2010:
. for the Applicant(s) No. 1,2
ADVOCATE NOTICE SERVED(81) for the Applicant(s) No. 2
MR NIRAV C THAKKAR(2206) for the Applicant(s) No. 1,3
MR B.S.PATEL SENIOR ADVOCATE WITH MR CHIRAG B
PATEL(3679) for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
Appearance in Cr.M.A. No.2801 of 2010:
. for the Applicant(s) No. 1,2
ADVOCATE NOTICE UNSERVED(81) for the Applicant(s) No. 2
MR NIRAV C THAKKAR(2206) for the Applicant(s) No. 1
MR B.S.PATEL SENIOR ADVOCATE WITH MR CHIRAG B
PATEL(3679) for the Respondent(s) No. 2
Page 1 of 23
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R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/01/2022
CAV JUDGMENT
1. Both the matters pertain to the same complaint, therefore, they are heard together and are disposed of by this common judgment.
2. The petitioners have filed these petitions under under Section 482 of the Code of Criminal Procedure, 1973, (for short "the Cr.P.C.") praying to quash and set aside the complaint being M.Case No.22 of 2005 registered with J.P. Road Police Station, Vadodara for the offences punishable under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code as well as Charge Sheet No.1 of 2009 and the proceedings initiated pursuant thereto.
3. The petitioners of Criminal Misc. Application No.2799 of 2010 are the original accused nos.2 to 4 in the impugned complaint. The petitioner no.3 is the Managing Director of Sardar Patel Education Trust, which runs various colleges and he is also an ex-president of All India Plastic Manufacturers Association at Mumbai. Petitioner No.2 is President of Halol GIDC Association and an ex- president of Federation of Panchmahals Industries, Godhra.
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4. It is stated that in 1991, the original land owners after receiving entire amount of land in question had executed Power of Attorney in favour of petitioners of Criminal Misc.Application No.2801 of 2010 - original accused nos.1 to 6 of the complaint and possession receipt for the said land was given by the original land owners.
4.1 It is stated by the petitioners that initially some proceedings under the Urban Land Ceiling Act were going on with respect the land in question. The said lands finally became free from U.L.C. proceedings in the year 1996 and thereafter the accused nos.1 to 5 in the complaint, after obtaining necessary permission under Section 26 of the urban Land Ceiling Act, entered into registered sale deed dated 17.04.1996. It is stated that the name of accused nos.1 to 5 are shown as per revenue records in 7/12 and 8A extract.
4.2 It is stated that one Mr. Ashwinkumar Kaniyalal Patel filed a Civil Suit No.293 of 1996 before the Vadodara Civil Court against the original land owners - Pyarali Gulamhussain and others, wherein petitioners had made an application to be joined as parties, however, the same was withdrawn by a joint purshis dated 11.02.2000. Mr. Ashwinkumar Patel filed another Special Civil Suit No.337 of 1996 before the Vadodara Civil Court against the present petitioners and the original land owners, Page 3 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 wherein injunction was granted by the Civil Court Vadodara by order dated 02.08.1997.
4.3 Aggrieved by the same, the present petitioners filed an Appeal from Order No.409 of 1997 under the provisions of Order 43 Rule 7 of the Civil Procedure Code before this Court, which came to be allowed by order dated 23.02.1998 by setting aside the order of the trial Court below Exh.5. Mr. Ashwinbhai Patel challenged the said order below Exh.5 before the Hon'ble Supreme Court by way of preferring SLP, which came to be allowed. Thereafter, after giving public notice dated 01.04.1999 in newspaper with regard to the land in question, Special Civil Suit No.337 of 1996 came to be withdrawn by Mr. Ashwinbhai Patel by a joint purshis dated 11.02.2000 in lieu of settlement arrived at between the petitioners and Mr. Ashwinbhai Patel.
4.4 It is stated that the original land owners had also preferred a Special Civil Suit No.895 of 1996 against the present petitioners for quashment of the sale deeds dated 17.04.1996, which came to be withdrawn by purshis dated 11.02.2000, wherein it is clearly stated that the original land owners have agreed that the sale deeds dated 17.04.1996 were executed by them. It is stated that the consideration for the land in question were paid through cheques to the original land owners.
Page 4 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 4.5 The petitioners state that the complainant has filed a Special Civil Suit No.365 of 2004 before the Civil Court, Vadodara. In the said Suit the application below Exh.5 had been rejected by the trial Court vide order dated 13.04.2005. Thereafter, the complainant has filed the present complaint.
5. Mr. Nirav C.Thakkar, learned advocate for the petitioners submits that the civil dispute with regard to the land in question have already been settled and one civil suit is pending before the competent Court at Vadodara. He submits that since the document in question is presented before the Civil Court, Vadodara, no complaint can be filed without obtaining the permission of the said Court and the present complaint is filed because the injunction application of the complainant in Special Civil Suit No.365 of 2004 was rejected. He submits that the complainant somehow wants to extort money from the petitioners who have purchased the said land through a registered sale deeds.
5.1 Mr. Thakkar further submits that the original land owners have transferred the said land to the petitioners and in view of the settlement purshis given in various suits, it is apparent that the present complaint is nothing but a gross abuse of process of criminal law and hence the same deserves to be quashed and set aside. He submits that the petitioners have paid the entire Page 5 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 consideration for the land in question, thus if at all, there to his grievance, the complainant could have filed a complaint against the land owners who have executed the agreement to sell to him. He submits that as per the list of documents of various suits, the sale deeds of the petitioners was presented before the concerned Civil Court and thereafter decree for settlement was drawn.
5.2 Mr. Thakkar submitted that the dispute is entirely of a civil nature. The civil suits filed earlier have been unconditionally withdrawn and one suit is pending before the competent Court at Vadodara. He submits that earlier the petitioners had preferred Misc. Criminal Application No.6728 of 2005 before this Court for quashing the F.I.R. in which stay was granted and thereafter the said application was withdrawn vide order dated 16.04.2009 and thereafter charge-sheet in connection with the impugned FIR was filed. He submits that even on bare reading of the entire charge sheet, none of the ingredients of the alleged offences are made out.
5.3 Mr. Thakkar relied on the judgment of the Hon'ble Apex Court in case of Mohammed Ibrahim and Others v. State of Bihar and another, reported in 2010 (1) GLH 184, and in case of Navinchandra Vishnuprasad Shah Vs. State of Gujarat & Anr., reported in 2013 (2) G.L.H. 724, to urge that the Page 6 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 present petitions may be allowed by exercising the inherent powers of this Court under Section 482 of Cr.P.C.
5.4 Mr. Thakkar emphasizing on the facts of the case stated that, one irrevocable power of attorney was executed by five of the original owners, after receiving the entire amount for the land, in favour of Mr. Upendrabhai Jashbhai Patel and Govindbhai Gagjvandas Thakkar. The possession receipt was also given by the owners and some proceedings under the Urban Land Ceiling was going on, and finally when the land became free and after receiving necessary permission under Section 26 of the Urban Land Ceiling Act, accused nos.1 to 5 entered into registered sale deeds dated 17.04.1996. He submitted that the names of accused nos.1 to 5 are reflected in the revenue entries. The Civil Suit No.293 of 1996 filed by Mr. Ashwinkumar Kaniyalal Patel against the original land owners - Pyarali Gulam Hussain and others, which was unconditionally withdrawn by the joint pursis on 11.02.2000. After the round of litigation finally a settlement was arrived at between the petitioners and Ashwinkumar Kaniyalal Patel and a joint pursis therefore was given on 11.01.2000 withdrawing the Suit. He stated that when the original land owners preferred a Suit against the petitioners seeking cancellation of the sale deed dated 17.04.1996, the Suit thereafter was unconditionally withdrawn and therefore Mr. Thakkar stated that in the very pursis it has been clearly acknowledged that the original land owners had agreed Page 7 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 that the sale deeds dated 17.04.1996 were executed by them. The consideration of the said land through cheques had been paid to the original land owners.
5.5 Mr. Thakkar submitted that the complainant has raised issue after the death of Fidahussain Gulamhussain Momin in 1994, who was one of the executant of irrevocable power of attorney, contending that after the death of the said Fidahussain Gulamhussain Momin, the power of attorney holders, Mr. Upendrabhai Jashbhai Patel and Govindbhai Gagjvandas Thakkar, could not execute the sale deed in the name of death person. Referring to section 196 of the Indian Contract Act, 1872, Mr. Thakkar submitted that, the power of attorney was executed and the total consideration amount was paid, possession was also handed over and stated that when heirs of Fidahussain Gulamhussain Momin had accepted the execution of the sale deed, then there should not be any grievance left to any person including the complainant.
5.6 While countering the same, learned senior advocate Mr. B.S. Patel with Mr. Chirag B.Patel, learned advocate for the respondent no.2 - original complainant submitted that, the sale deeds dated 17.04.1996 were on the basis of false and bogus power of attorney with the sole purpose of effecting the right of the complainant, when he already had prior right in view of the agreement to sell dated 01.04.1992. Mr. Patel submitted that the Page 8 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 F.S.L. report, has confirmed the fact of signature of Aliraja Zakirhusein Momin being forged and therefore, there is prima facie case under sections 420, 467, 468, 471, 120B.
6. Mr. B.S. Patel, submits that the petitioners have earlier approached this Court by preferring petition for quashing the FIR, which was simply withdrawn without reserving any right and therefore on the same cause of action the present successive quashing petition is not permissible in law and thus urged to reject it.
6.1 In support of his submissions, Mr. Patel, relied on the following judgments: (i) Upendra Chamanlal Sehgal Vs. State of Gujarat, reported in 1986 (1) GLR 319 (ii) State of Maharashtra Vs. Avinash, reported in (2017) 16 SCC 735 (iii) Ram Dhan Vs. State of Uttar Pradesh And Another, reported in (2012) 5 SCC 536
(iv) Arvind Pandalal (Chairman-Cum-Managing Director) S.T.C.I.L. And Another Vs. State of Gujarat And Anr., reported in 2007 (2) GLR 1801.
6.2 The Hon'ble Apex Court in the case of Ram Dhan Vs. State of Uttar Pradesh And Another (supra), relied on by learned senior advocate Mr. B.S. Patel, on the issue of suppression of material fact, has observed that the petitioner therein had suppressed the material fact from the Supreme Court of dismissal of Criminal Revision Page 9 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 Application as well as petition under Section 482 for quashment of charge-sheet, which deprived the Supreme Court of opportunity to scrutinize charge-sheet and thus Hon'ble Court dismissed the petition observing that filing of successive petitions before court amounts to abuse of the process of court.
6.3 On the same line, Mr. Patel relied on the case of State of Maharashtra Vs. Avinash (supra), wherein the petitioner therein had filed second successive application for modification of bail conditions and other reliefs by suppressing withdrawal of earlier application and sought same remedies. The Hon'ble Apex Court has propounded that after withdrawing application before Division Bench, filing of second application was manifest abuse of process.
7. The first issue to be dealt with is in regard to the maintainability of the present petitions after the earlier was withdrawn by the petitioners.
8. Mr. Thakkar stated that earlier petition was filed for quashing of the FIR, which was withdrawn on 16.04.2009. As per the record, the charge-sheet came to be filed in the Court of Chief Judicial Magistrate, Vadodara on 01.01.2010. Thus, after the filing of the charge-sheet, the petitions have been moved.
Page 10 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 8.1 It is pertinent to note that earlier petition was not decided on merits, it was simply withdrawn, the co- ordinate bench of this Court (Coram: G.R. Udhwani, J., as he then was) in the case of Navinchandra Vishnuprasad Shah Vs. State of Gujarat & Anr., (supra) accepting the maintainability of the second petition, had observed on facts that, at the filing of the earlier petition, charge- sheet was not filed and as the petition was only filed for quashing the FIR, it was withdrawn as the Court opined that it was not maintainable in absence of charge-sheet. After taking into consideration the charge-sheet and documents, the Court below charged the petitioner and therefore the petitioner had moved the Court under Section 482 Cr.P.C. independently than of the previous proceedings and thus, it was held that petition was maintainable.
8.1.1 In the case on hand, the present petitioners had earlier approached this Court by preferring Criminal Misc. Application No.6827 of 2005 for quashing of the F.I.R., wherein the stay was granted. The said petition came to be withdrawn vide order dated 16.04.2009 and thereafter charge-sheet no.1/2009 in connection to the F.I.R. was filed on 01.01.2010. The petitioner has averred the said fact in the following term in para (17), which read as under:
"It is respectfully stated and submitted that earlier the petitioners had preferred Misc.Page 11 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022
R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 Criminal Application No.6728 of 2005 before this Hon'ble Court for quashing the F.I.R. in which stay was granted and thereafter, the said application is withdrawn vide order dated 16.04.2009. The petitioners crave leave to refer to and rely upon the said order at the time of hearing of the present application, if necessary. It is further submitted that thereafter, the charge sheet in connection with the aforesaid F.I.R. is filed..... It is submitted that even on bare reading of the entire charge sheet, none of the ingredients of the alleged offences are made out. Also, the petitioners have been granted anticipatory bail....."
8.1.2 In case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh & Ors., reported in (1975) 3 SCC 706, the Hon'ble Apex Court on the issue of entertaining subsequent petition under Section 482 Cr.P.C. has observed that, the facts and circumstances obtaining at the time of subsequent application of respondents nos.1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order, the High Court proceeded to consider the subsequent application of respondents nos.1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561A, it was thus held that the High Court was Page 12 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 perfectly entitled to do and there is no jurisdictional infirmity in the order of the High Court.
8.1.3 In the said case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh & Ors. (supra), the Supreme Court had upheld the entertainment of subsequent quashing petition by the High Court in spite of the fact that earlier application was rejected by the High Court on the ground that the evidence were yet to be allowed and it was not desirable to interfere with the proceeding at that stage, but since the criminal case was dragged for a period of one and half year without any progress at all and it was in these circumstances, the petitioners were constrained to make a fresh application to the High Court to quash the petition. The Supreme Court thus, observed that inherent power of the High Court to make such orders, as it deem fit is to prevent abuse of process of Court or to secure the ends of justice and the High Court, must therefore exercise its inherent power having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked and thus, in the circumstances, as was urged, it was observed that the High Court was entitled to entertain the subsequent petition to consider on facts and circumstances as to whether the continuation of the proceedings constituted abuse of process of Court and its quashment is necessary to secure the ends of justice. It was further observed that the facts and circumstance obtaining at the time of Page 13 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 subsequent application were clearly different from what they were at the time of earlier application and despite rejection of the earlier application, the prosecution had failed to make any progress in the criminal case, and it was for this reason the Hon'ble Apex Court considered that the High Court did proceed to consider the subsequent application for the purpose of deciding whether it should exercise its inherent jurisdiction. The Hon'ble Apex Court, therefore, held that High Court was perfectly entitled to do so and that there was no jurisdictional infirmity in the order of the High Court.
8.1.4 The Hon'ble Apex Court relying on the case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh & Ors. (supra), in the case of Vinod Kumar, IAS Vs. Union of India & Ors., decided on 29.06.2021 in the proceedings of Writ Petition (Criminal) No.255/2021, on the contention of advocate for the petitioner therein that the petitioner had earlier approached the High Court under section 482 Cr.P.C. which were later withdrawn, held that; the law on point as held by the Supreme Court in case of Superintendent and Remembrancer of Legal Affairs, West Bengal is clear that dismissal of an earlier 482 petition does not bar filing of subsequent petition under Section 482, in case the facts so justify.
8.1.5 In the instant case, since the earlier petition was withdrawn prior to the filing of the charge-
Page 14 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 sheet and there was no observation on the merits of the matter, the applicant would be entitled to invoke the jurisdiction of this Court under Section 482 Cr.P.C. after the charge-sheet came to be filed and therefore the present petition is maintainable.
9. The complainant in the complaint has alleged that, accused nos.7 to 10 on assurance to sell the open land below Survey Nos.224 and 246 at the rate of Rs.18,00,000/- on 01.04.1992 executed Banakhat with the earnest money of Rs.3,51,,000/-, as per one of the condition, on completion of proceedings under the Land Ceiling Act, the sale-deed was to be registered and it is alleged that in the meantime they recovered a total amount of Rs.14,00,000/- on the pretext of expenses for seeking permission for sale; the complainant alleges that he was awaiting the sale permission. He further alleges that thereafter, accused nos.7 to 10 in conspiracy with accused nos.1 to 6 with a view to cheat and damage his right, so in furtherance of conspiracy, on the basis of bogus Power of Attorney in favour of accused in.1 and accused no.6, executed sale deed of Survey No.224 in favour of accused no.4 and sale deed of survey no.246 in favour of accused no.1 himself on 17.04.1996.
9.1 The complainant had filed a Special Civil Suit No.365 of 2004 before the Civil Court, Vadodara. In the said Suit the application below Exh.5 had been rejected by the trial Court vide order dated 13.04.2005. The Page 15 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 original land owners had also preferred a Special Civil Suit No.895 of 1996 against the present petitioners for quashment of the sale deed dated 17.04.1996, which came to be withdrawn by purshis dated 11.02.2000, wherein the original land owners have agreed that the sale deeds dated 17.04.1996 were executed by them.
9.2 The dispute which had been raised is about the execution of the sale-deed even after the death of Fidahussain Gulamhussain Momin on 25.02.1994. It has been urged that false and forged power of attorney was used for execution of the two different sale deeds on the very same day of 17.04.1996 of revenue survey nos. 224 and 246. The F.S.L. report so produced is on the examination of signature of Aliraja Zakirhusein Momin, while that fact has not been disputed in the F.I.R., even otherwise, in the case of Rajeshbhai Muljibhai Patel Vs. State of Gujarat, reported in AIR 2020 (3) SCC 794, the Hon'ble Apex Court, in regard to the opinion of the handwriting expert, which opined that the signatures did not tally with the sample signatures of the respondent to the matter, while stating about the pendency of the summary suit before the competent Court and of issue being raised of fabricated forged signature, observed that, when the issue as to genuineness of receipts is pending consideration in the civil suit, FIR ought not to have been allowed to continue as it would prejudice interest of parties and the stand taken by them in the Civil Suit. The Hon'ble Supreme Court has found out that Page 16 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 in terms of section 45 of the Evidence Act, opinion of hand writing expert is a relevant piece of evidence but it is not a conclusive evidence and it is always open to the parties to adduce appropriate evidence to disprove opinion of hand writing expert. Over and above that, Section 73 of Evidence Act empowers Court to compare admitted and disputed writings for the purpose of forming its own opinion and thus it was observed that only on the sole opinion of the handwriting expert, the F.I.R. ought not to have been registered, and continuation of the FIR would be abuse of process of Court and therefore the F.I.R. came to be quashed.
10. The facts and circumstances, as has developed between the parties in the present case suggests that the irrevocable power of attorney was given in favour of Mr. Upendrabhai Jashbhai Patel and Govindbhai Gagjvandas Thakkar and thereafter two sale deeds were executed and in the suits the heirs and the co-owners ratified the execution of sale deeds. Thus, in view of the provision of Sections 196 and 197 of the Indian Contract Act, 1872, the subsequent conduct of the co-owners and the heirs of the deceased would give the right to the purchasers of the property. Section 196 of the Indian Contract Act specifies that, where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority and in view of Section 197, Page 17 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 such ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done. Thus, subsequent conduct of the parties before the Court by way of settling the matter and accepting the execution of the sale deeds, prima facie would give them the right on the property.
11. The sections invoked in the present case are 420, 467, 468, 471 and 120B of the Indian Penal Code. In Mohammed Ibrahim and others v. State of Bihar (supra), the Apex Court has explained the concept of "Cheating" in the following terms:
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 Page 18 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 capable of being converted into a valuable security).
11.1 In Mohammed Ibrahim and others v. State of Bihar (supra), the Apex Court has explained the concept of "false documents" in the following terms:
"14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
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 persons, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
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.
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, knows the contents of the document or the nature of the allegations.
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 practising Page 19 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 deception, or from a person not in control of his senses."
11.2 It is also alleged in the impugned complaint that false documents in for the form of Power of Attorney and sale deeds have been prepared by the accused and that the alleged act has been executed as a part of a criminal conspiracy. In this context, it would be relevant to refer to the observations made by the Apex Court in paragraphs - 15 to 17 in Mohammed Ibrahim's case (supra):
"15. 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.
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 bonafide believes that the property Page 20 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 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."
11.3 12. In the case of Mohammad Ibrahim (supra), it has been observed in paragraphs - 20 to 22 as under;
"20. 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.Page 21 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022
R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022
21. 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.
22. 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."
11.4 Considering the principle rendered in Mohammed Ibrahim's case (supra), it could be gainfully said that it would only be the purchaser in the sale deed, who would be considered to be the person, to feel cheated by the seller, if any allegations of fraud are levelled against the seller. Further, here the complainant agitates on behalf of his own agreement to sell with the original owners. He is not privy to the irrevocable power of attorney nor to the sale deeds dated 17.04.1996. He can only proceed, on the basis of the agreement to sell Page 22 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022 R/CR.MA/2799/2010 CAV JUDGMENT DATED: 18/01/2022 which lies in his favour, before the Civil Court and he cannot himself raise the grievance with regard to the irrevocable power of attorney or the sale deed executed thereon, when the parties, who are supposed to be aggrieved, have not filed any criminal complaint.
12. Thus, in view of the above discussions and observations and taking into consideration the facts and circumstances of the case, petitions are allowed. The proceedings of complaint being M Case No.22 of 2005 as well as Charge Sheet No.1 of 2009 and all the consequential proceedings initiated pursuant thereto are quashed and set aside qua the present petitioners. Direct service is permitted.
(GITA GOPI, J.) Pankaj Page 23 of 23 Downloaded on : Tue Jan 18 21:01:56 IST 2022