Himachal Pradesh High Court
Inder Mohan Guleria And Others vs State Of Himachal Pradesh on 12 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.157 of 2019 .
Reserved on: 6.12.2023 Date of Decision: 12.01.2024.
Inder Mohan Guleria and others ...Petitioners
of
Versus
State of Himachal Pradesh
rt ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioners : Mr. Narender Guleria, Advocate.
For the Respondent : Mr. Prashant Sen, Deputy Advocate General for Respondent-State.
Rakesh Kainthla, Judge A complaint was made to the police that Ajay Parashar, Tehsildar, Sadar, Mandi, H.P. had purchased benami property in Mandi and Nerchowk area through property dealers and agents. One plot bearing Khasra No. 4438/3016/2701/1 was purchased in Mohal Tarna as per Mutation No. 600013, dated 17.7.2012 from Tilak Singh as a bribe. The Tehsildar had 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 2accumulated property more than his income. The police conducted the investigation and found that Khasra No. .
4438/3016/2701/2, measuring 276-23 was sold vide Sale Deed No. 1173/2012, dated 17.7.2012 for ₹8,75,000/-. Its market value was shown to be ₹20,78,000/-. An amount of ₹1,03,900/- was deposited on 17.7.2012. The registration fee of 2% amounting to of ₹41,500/- was not deposited on 17.7.2012 but it was deposited on 9.8.2012 after 23 days. As per the report of Tehsildar, Sadar, rt Mandi and statements of Pradeep Kumar and Hari Ram, Inder Mohan had prepared the plots of his land bearing Khasra No. 4438/3016/2701/2, Khasra No. 276.63 sq. mtrs. in the year 2011.
A local road was constructed to these plots. Hence, the category of the plots changed from third class to first class. The market value of first-class land was ₹15,000/- per sq. mtr. Hence, the market value of 276.63 sq. mtrs. was ₹41,49,450/-. 5% of the stamp duty worth ₹2,07,473/- and registration fee @2% worth ₹82,989/- were leviable on the Sale deed. However, ₹1,03,573/-
was deposited less as stamp duty and ₹41,489/- was deposited less as a registration fee. Bhagirath, the petition writer wrote the document. He could not be a witness as per H.P. Document Writing Licencing Rules, 1971. However, he signed this ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 3 document as a witness. He also prepared a false affidavit of Tilak Raj. The affidavit was not signed by the purchaser and it does .
not bear the signatures of the identifier; however, it was accepted by the Tehsildar (Sub Registrar). The Sale deed was marked to the Registration Clerk despite the non-payment of the proper stamp duty and registration fee. The mutation was of also sanctioned on the same day. The registration clerk also entered the same in the computer despite the non-deposit of the rt registration fee. This caused a loss to the State. Tilak Singh is the younger brother of father-in-law of Tehsildar. The police registered the FIR and conducted the investigation. The police seized the record and found that Inder Mohan had prepared the plots of his land. The sale deeds of various plots were prepared by Bhagirath, the Document Writer. Seven sale deeds were registered as first-class land in the same mohal. Inder Mohan did not forward a copy to Tehsildar, Tehsil Sadar. Road parking areas and green areas were not transferred in the name of Nagar Parishad, Mandi. The documents were sent to the FSL and the report of FSL was received. Statements of witnesses were recorded as per their version and after the completion of the ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 4 investigation, the challan was prepared and presented before the Court.
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2. The petitioner filed the present petition for quashing of the FIR and the consequent proceedings. It has been asserted that the petitioners are innocent and they were falsely implicated. There is no evidence that the market value of the of piece of the land was ₹15,000/- per sq. mtrs. This is merely a rt guesswork. The petitioner was directed to deposit the shortage of registration fee and stamp fee which have been deposited.
There was no benami transaction. The land was further sold and the stamp duty was affixed even less than what was affixed by the subsequent purchaser. The complaint was filed by an unknown person to settle the scores. No fruitful purpose would be served by continuing with the present prosecution. Land was sold in the year 2012 and FIR was lodged in 2017, for which no explanation has been provided. The allegations of the complaint were not substantiated and a different case was made by the police. Therefore, it was prayed that the present petition be allowed and FIR be quashed.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 53. I have heard Mr. Narender Guleria, learned Counsel for the petitioners and Mr. Prashant Sen, learned Deputy .
Advocate General for respondent-State.
4. Mr. Narender Guleria, learned counsel for the petitioners submitted that the petitioners are innocent and they have been falsely implicated. There is no evidence that proper of stamp duty was not paid and even if it is so, the same does not rt constitute an offence punishable under Section 420 of IPC.
There was no forgery in the documents and there is a distinction between a false document as is understood in law and the documents whose contents are false. The present case relates to a document whose contents are false and is not punishable under criminal law. Therefore, he prayed that the present petition be dismissed.
5. Mr. Prashant Sen, learned Deputy Advocate General submitted that the petitioners had cheated the Government by not paying the property stamp duty. Therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions at the bar and have gone through the record carefully.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 67. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme .
Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 :
(2023) 7 SCC 711 wherein it was observed at page 716:-
17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably rt refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly.
In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) "27. ...27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers.
The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 7 ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere.
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No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be of committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the rt exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 827.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to .
determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called of upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
rt 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 9 fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where .
the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually of and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction rt under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
8. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-
26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 10 wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be .
possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken of at their face value and accepted in their entirety do not prima facie constitute any offence or make out a rtcase against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 11 (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the .
Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
of
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and rt that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."(emphasis supplied)
9. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed:
10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 12 while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has .
observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the of allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited rt jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".
11. One other reason pointed out by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 1310. The case of the prosecution is that no proper stamp duty was paid on the sale deed registered by the Sub-Registrar.
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Assuming the whole of the prosecution case is correct, it will fall within the purview of Section 62 of the Indian Stamp Act which deals with executing or signing otherwise than as a witness any instrument chargeable with duty without the same being duly of stamped. The penalty for such an offence is ₹500/-. No prosecution in respect of any offence punishable under the rt Stamp Act can be instituted without the sanction of the Collector or such other officer as the State Government generally or the Collector specially authorizes on that behalf because of Section 70 of the Stamp Act.
11. Thus, the legislature contemplated that an instrument could be executed on which the proper stamp duty was not paid. A specific offence was created for the same under Section 62 and a specific provision was provided for taking action under the Act. When a specific offence has been created, the general offence under IPC will not be attracted to the present case. Hence, the premise of the whole case that the offence punishable under Section 420 of IPC has been made out by paying less stamp duty is untenable.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 1412. The whole case proceeds on the basis that stamp duty was not properly paid. Section 47-A of the Indian Stamp Act, as .
amended by the State of H.P. reads as under:-
"47-A. Instruments under-valued, how to be dealt with.-
(1) If the Registering Officer, appointed under the Registration Act, 1908 (16 of 1908) while registering any instrument relating to the transfer of any property, has of reason to believe that the market value of the property or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for rt determination of the market value or consideration, as the case may be, and the proper duty payable thereon.
(2) On receipt of reference under sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner, as may be prescribed by rules, made under this Act, determine the market value or consideration and the duty, as aforesaid, and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty.
(3) The Collector may, suo moto or on receipt of a reference from the Inspector General of Registration or the Registrar of a District, in whose jurisdiction the property, or any portion thereof, which is the subject-
matter of the instrument, is situated, appointed under the Registration Act, 1908 (16 of 1908) shall, within three years from the date of registration of any instrument, not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of its market value or consideration, as the case may be, and the duty payable thereon and if, after such examination, he has reason to believe that the market value or consideration has not been truly set forth in the instrument, he may determine ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 15 the market value or consideration and the duty, as aforesaid, in accordance with the procedure provided for in subsection (2), and the deficient amount of duty, if .
any, shall be payable by the person liable to pay the duty:
Provided that nothing in this sub-section shall apply to any instrument registered before the date of the commencement of the Indian Stamp (Himachal Pradesh Amendment) Act, 1988.
(4) Where for any reason the original document called for by the Collector under sub-section (3) is not produced or of cannot be produced, the Collector may, after recording the reasons for its nonproduction, call for a certified copy of the entries of the document from the registering rt officer concerned and exercise the powers conferred on him under sub-section (3).
(5) Any person, aggrieved by an order of the Collector, under subsection (2) or sub-section (3), may, within thirty days from the date of the order, prefer an appeal before the District Judge and all such appeals shall be heard and disposed off in such manner as may be prescribed by rules made under this Act. (6) For the purpose of this section "market value" of any property shall be estimated to be the price which, in the opinion of the Collector or the appellate authority, as the case may be, such property would have fetched, if sold in the open market on the date of execution of the instrument relating to the transfer of such property."
13. It is apparent from the perusal of this Section that a specific method of dealing with the undervalued instrument has been provided. The power has been conferred upon the Collector to hold an inquiry to determine the market value and demand the deficient amount of duty. This can be done suo moto or on the receipt of a reference from the Inspector General of ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 16 Registration or the Registrar of the District. Even Sections 33 and 35 of the Indian Stamp Act, which deal with the instruments not .
duly stamped, also provide that the authorities before whom such documents are produced have to take the penalty and thereafter the document is to be sent to the Collector who has to examine whether the document is duly stamped or not.
of Therefore, the scheme of the Indian Stamp Act clearly shows that the Collector has been made a final authority as far as the rt determination of the stamp duty is concerned. There is nothing on record to show that the Collector ever determined that the stamp duty paid on the sale deed was not proper. Even no report from the Inspector General of Registration was placed on record to establish this fact. Merely because some of the property was sold in the same Mohal with a different valuation cannot lead to an inference that the stamp duty paid on the present sale deed is not proper in the absence of a determination of the stamp duty by the Collector. Hence, the very basis of filing the present challan is defective because there is no order from the competent authority holding that the sale deed was not properly stamped and the registration fee was not properly paid.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 1714. A heavy reliance was placed upon the report submitted by the Deputy Commissioner to the Deputy Secretary .
to the Chief Minister, in which it was mentioned that a loss of ₹1,03,575/- was caused on account of less stamp duty and loss of ₹41,489/- was caused due to less registration fee. It was submitted that the Deputy Commissioner has also found that of there was less stamp duty. The Deputy Commissioner also exercised the power of Collector and there is sufficient material rt to show that the less stamp duty was paid. This submission is not acceptable. A person may be exercising various powers but unless he has taken action as per the law, his report in one capacity cannot be substituted for the other. There is nothing on record to show that the Deputy Commissioner, even if he was exercising the powers of Collector, had taken any action under Section 47-A after holding the inquiry. Therefore, this report will not be of much assistance to the prosecution.
15. The prosecution further asserted that the affidavit containing false averments regarding the distance was prepared and this constitutes offences punishable under Sections 465, ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 18 467, 468 and 471 of IPC. There is a force in the submission on behalf of the petitioner that there is a distinction between a false .
document and a document whose contents are false. It was laid down by the Hon'ble Supreme Court in Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that the prosecution is required to prove that the accused had forged a document by of creating a false document to establish offences punishable under Sections 465, 467 and 471 of IPC. A false document is when a rt document is executed claiming to be executed by someone else or authorised by someone else or a document is tempered or signatures are obtained by practising deception. It was observed:-
"[10] An analysis of section 464 of the Penal Code shows that it divides false documents into three categories:
10.1) 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 person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.::: Downloaded on - 12/01/2024 20:36:59 :::CIS 19
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could .
not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
[11] In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone of else; or (ii) he altered or tampered with a document; or
(iii) he obtained a document by practising deception, or from a person not in control of his senses."
16. rt In the cited case, the prosecution alleged that the accused had executed a sale deed regarding the property over which he had no right. It was held by the Hon'ble Supreme Court that there is a distinction between a document whose contents are false and a document which is itself false within the definition of Section 464 of IPC. A document containing false averment does not attract the provision of Criminal Law and the accused cannot be held liable for executing the sale deed by claiming to be the owner when he was not the owner. It was observed:-
"[12] The sale deeds executed by the 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 ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 20 committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp .
vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the of owner, to execute the deed on the 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 actually rt 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 the 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. 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 a document (purporting to convey some property of which he is not the owner) is not an 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 is attracted".
17. In Mir Nagvi Askari Vs CBI 2009 (15) SCC 643 the accused was charged with making false entries in the record of the bank. It was laid down by the Hon'ble Supreme Court that ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 21 making wrong entries by itself will not attract criminal liability unless it is proved that the document was false within the .
meaning of Section 464 of IPC. It was observed:-
"[229] A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has of been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly, the documents in question in the rt present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. [230] The second criterion of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore in our opinion, the second criterion of the said section is also not applicable to the present case.
[231] The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted for the making of a false document.
[232] The learned Special Judge, therefore, in our opinion, erred in holding that the accused had prepared a false document, which clearly, having regard to the provisions of the law, could not have been done.::: Downloaded on - 12/01/2024 20:36:59 :::CIS 22
[233] Further, the offence of forgery deals with the making of a false document with the specific intentions enumerated therein. The said section has been .
reproduced below.
"463. Forgery.--Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury], to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or of implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
[234] However, since we have already held that the rt commission of the said offence has not been convincingly established, the accused could not have been convicted for the offence of forgery. The definition of "false document"
is a part of the definition of "forgery". Both must be read together. [Dr. Vimla v. Delhi Administration, 1963 Supp2 SCR 585]".
18. It was further held that in the absence of the document being forged a person cannot be convicted of the commission of an offence punishable under Section 471 of IPC. It was observed:-
"[235] Accordingly, the accused could not have been tried for an offence under Section 467 which deals with forgery of valuable securities, will etc. or Section 471, i.e., using as genuine a forged document or Section 477-A, i.e., falsification of accounts. The conviction of the accused for the said offences is accordingly set aside".
19. This question was also considered in Sheila Sebastian versus RJawaharaj & Anr ETC. 2018 (7) SCC 581 and it was held that unless the ingredients of Section 464 of IPC are satisfied a ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 23 person cannot be convicted of the commission of an offence punishable under Section 465 of IPC. It was observed:-
.
"[26] The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case at hand, there is no finding recorded by the trial Court that the of respondents have made any false document or part of the document/record to execute the mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the rt forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court, as well as the appellate court, misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same".
20. It was laid down in Bandekar Bros. (P) Ltd. v. Prasad Vassudev Keni, (2020) 20 SCC 1 : (2022) 1 SCC (Cri) 626: 2020 SCC OnLine SC 707, that making false debit notes to claim the amount mentioned in them will not amount to forgery as is understood in law. It was observed:
"50. Section 463 IPC speaks of "forgery" as being the making of a "false document" or "false electronic record", or a part thereof, to do the various things that are stated in that section. Unless a person is said to make a false document or electronic record, Section 463 does not get attracted at all. The making of a "false document" is then dealt with in Section 464 IPC. On the facts of the present case, we are not concerned with the categories of ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 24 false documents identified under the heads "Secondly"
and "Thirdly" of Section 464. Shri Mishra states that the making of the debit notes by the respondents in order to .
falsely claim amounts owing to them would fall within the "First" category under Section 464.
51. The "First" category of Section 464 makes it clear that anyone who 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 or by the authority of a person by whom or by whose of authority he knows that it was not made, can be said to make a false document. Several judgments of this Court have held that assuming dishonesty or fraud, the second ingredient of the "First" category of Section 464 is that rt the document itself must be made by or by the authority of a person by whom or by whose authority the person who creates the forgery knows that it was not made. If the second ingredient is found missing, the offence of forgery is not made out at all. Thus, in Devendra v. State of U.P. [Devendra v. State of U.P., (2009) 7 SCC 495 : (2009) 3 SCC (Civ) 190 : (2009) 3 SCC (Cri) 461], this Court set out the following facts : (SCC p. 499, paras 5-6) "5. On or about 22-8-1997, a sale deed was executed by Appellants 1 and 2 in favour of Appellants 3 and 4. On 24-8-2005, a suit was filed by Respondent 2 and others for cancelling the aforesaid deed of sale dated 22-8-1997, which was registered as Civil Suit No. 382 of 2005. The said suit is still pending in the Court of the learned Civil Judge (Junior Division), Ghaziabad. In the said suit, however, it was averred that Solhu had four sons whereas in Suit No. 135 of 1982, it was stated that Solhu had five sons. The appellants filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure before the Court of the Deputy District Magistrate (First Class), Ghaziabad praying for dismissal of Suit No. 135 of 1982. An application for impleadment was also filed ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 25 by the appellants in Civil Miscellaneous Writ Petition No. 17667 of 1985.
6. On or about 21-9-2005, Respondent 2 filed an .
application in Police Station Kavinagar, Ghaziabad wherein the City Magistrate by an order dated 17- 9-2005 passed an order to hear the complainant and register a first information report. Thereafter, Respondent 2 filed a first information report at Police Station Sahni Gate on 21-9-2005. The appellants filed an application for quashing the said of first information report before the High Court. It was marked as Criminal Miscellaneous Writ Petition No. 10568 of 2005."
rt
52. This Court held that the sale deed executed did not constitute a "false document" under Section 464 IPC as follows : (Devendra case [Devendra v. State of U.P., (2009) 7 SCC 495 : (2009) 3 SCC (Civ) 190 : (2009) 3 SCC (Cri) 461], SCC pp. 502-503, paras 18-20) "18. Section 463 of the Penal Code reads as under:
'463. Forgery.--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.' According to Mr Das, making a false document so as to support any claim over title would constitute forgery within the meaning of the said provision and as a document was created for the purpose of showing one-third share in the joint property by the appellants although they were not entitled to therefor, they must be held to have committed an offence.
19. Making of any false document, in view of the definition of "forgery" is the sine qua non therefor.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 26What would amount to the making of a false document is specified in Section 464 thereof. What is, therefore, necessary is to execute a document .
with the intention of causing it to be believed that such document inter alia was made by the authority of a person by whom or by whose authority he knows that it was not made.
20. The appellants are the owners of the property. They have executed a sale deed. Execution of the deed of sale is not denied. If somebody is aggrieved of by the false assertions made in the said sale deed, it would be the vendees and not the co-sharers. The appellants have not been alleged to be guilty of creating any false document."
rt
53. In Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929], it was held that the execution of a sale deed by somebody in his own name qua property which is not his does not constitute making a "false document" under Section 464 IPC, because he does not impersonate the owner or falsely claim to be authorised or empowered by the owner to execute the deed on the owner's behalf. The Court held : (SCC pp. 756-57, paras 13-17) "13. The condition precedent for an offence under Sections 467 and 471 is a 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.
14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 271. 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.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, of alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
rt 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; (b) intoxication; or (c) deception practised 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 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 with a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.
15. The sale deeds executed by the 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 ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 28 possession of the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the 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 of by the owner, to execute the deed on the 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 rt 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 the 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 a 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."
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 2954. In Mir Nagvi Askari v. CBI [Mir NagviAskari v. CBI, (2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718], vouchers that were made dishonestly by employees of a bank to profit a .
co-accused were held not to be "false documents" within the meaning of Section 464 IPC, as they were not made with the intention of causing it to be believed that the vouchers were made by or under the authority of somebody else. The facts necessary to attract Sections 463 and 464 IPC were set out by this Court in para 3 as follows : (SCC p. 648) of "3. Accused 1, 2, 4 and 5 in their capacity as public servants, were working in the Fort Branch of Andhra Bank. They were charged with abuse of their position and acting dishonestly and rt fraudulently, as a result whereof undue pecuniary advantage is said to have been procured by Accused 3 by way of crediting banker's cheques without them having been presented or sent for clearance and, thus, cheating Andhra Bank and dishonestly permitting substantial withdrawals from his current account by Accused 3. They are said to have prepared false documents and used them as genuine ones, with the intention to defraud and falsify entries in the books of accounts of the Bank. They are also charged with entering into a criminal conspiracy, as they, having been entrusted with the property of Andhra Bank, prepared credit and debit vouchers in favour of Accused 3, authorising credit of amounts of various cheques to the account of Accused 3 without having received any banker's cheques."
55. This Court, however, held that Section 464 IPC was not attracted, as follows : (Mir NagviAskari case [Mir NagviAskari v. CBI, (2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718], SCC p. 687, paras 164-66) "164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed herein before and provided for under the ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 30 said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has .
been made by a person, by whom the person falsifying the document knows that it was not made. Clearly, the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of of someone else. The second criterion of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the rt voucher in question after they have been made. Therefore, in our opinion, the second criterion of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.
165. The learned Special Judge, therefore, in our opinion, erred in holding that the accused had prepared a false document, which clearly, having regard to the provisions of the law, could not have been done.
166. Further, the offence of forgery deals with the making of a false document with the specific intentions enumerated therein. The said section has been reproduced below.
'463. Forgery.--Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 31 public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or .
implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.' However, since we have already held that the commission of the said offence has not been convincingly established, the accused could not have been convicted for the offence of of forgery. The definition of "false document"
is a part of the definition of "forgery". Both must be read together. [Vimla v. Delhi Admn. [Vimla v. Delhi Admn., AIR 1963 SC 1572 :
rt (1963) 2 Cri LJ 434] ] Accordingly, the accused could not have been tried for an offence under Section 467 which deals with forgery of valuable securities, will, etc. or Section 471 i.e. using as genuine a forged document or Section 477-A i.e. falsification of accounts.
The conviction of the accused for the said offences is accordingly set aside."
56. It is thus clear that even if we are to put aside all the averments made in the two complaints (which attract the provisions of Sections 191 and 192 of the Penal Code), and were to concentrate only on the debit notes that are said to have been "created" by the respondents, it is clear that the debit notes were not "false documents" under Section 464 IPC, inasmuch they had not been made with the intention of causing it to be believed that they were made by or under the authority of some other person. Since this basic ingredient of forgery itself is not made out, none of the sections that are sought to be relied upon in Chapter XVIII IPC can thus be said to be even prima facie attracted in the facts of this case."
21. In the present case, there is no allegation that the petitioners executed a document claiming it to be executed by ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 32 someone else or authorized by someone else, altered the document or obtained the document by practising deception or .
from a person who was not in control of his senses. Therefore, no offence punishable under Sections 465, 467, 468 and 471 of IPC is made out in the present case.
22. A complaint was made against the petitioner Ajay of Parashar that he had purchased the benami property. He had rt accumulated the resources disproportionate to his known sources of income. The police held after the investigation that no benami property was purchased by Ajay Kumar-petitioner.
There was no property disproportionately to the source of his income. The only allegation is that he had registered a sale deed on which proper stamp duty was not paid, which caused a loss to the State and benefit to the purchaser, which is without any basis. As noticed above, he has been charge-sheeted for the commission of an offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Since the petitioner Ajay Prashar did not benefit any person nor subjected anyone to loss; therefore, the offence punishable under Section 13(2) read with Section 13(1)(d) is also not made out.
::: Downloaded on - 12/01/2024 20:36:59 :::CIS 3323. It was further stated that Inder Mohan had sought permission for a subdivision of his land and had not transferred .
the proposed roads and green pockets to the local body as required under the sanction. The sanction letter on Page No. 173 of the record of the learned Trial Court only mentions that the area under the proposed roads and green pocket shall not be sold of and converted to any other use and shall have to be transferred in favour of the local body or development authority without any rt compensation for development and maintenance as and when taken by the authority. Therefore, as per the sanction letter, the land was to be taken over by the authority and was not to be transferred by the persons seeking the sub-division. Therefore, even this plea is not correct.
24. It was stated that the petition writer had signed the document as a witness contrary to the Rule, however, the same may give rise to an action under the Rules but the same does not constitute the offence punishable under IPC.
25. Heavy reliance was placed on the fact that the registration fee was also not deposited at the time of registration but was deposited after 23 days, however, it is not stated ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 34 anywhere in the challan that this amount was handed over to the Sub Registrar or his clerk who had retained the same and did not .
deposit the same in the Treasury. Even no offence punishable under Section 409 of IPC was mentioned in the charge sheet filed by the police. Therefore, the delayed deposit of the registration fee will not constitute an offence punishable under of IPC.
26. rt Reference was made to Section 41 of the Court Fees Act and 69 of the Stamp Act. As already stated, the offence punishable under Section 69 of the Stamp Act can only be prosecuted with the sanction of the Collector and no sanction has been placed on record. The present case deals with stamp duty and does not concern the Court fee as the documents prepared were not to be filed in the Courts or public offices.
Therefore, it is difficult to see how an offence punishable under Section 41 of the Court Fees Act will be made out against the Petition Writer.
27. Therefore, the allegations in the FIR and the charge sheet filed before the Court even if accepted in its entirety, do not constitute the commission of a cognizable offence. Hence, ::: Downloaded on - 12/01/2024 20:36:59 :::CIS 35 the present petition is allowed and FIR No. 4 of 2017 dated 15.9.2017, registered at Police Station Mandi, State Vigilance and .
Anti Corruption Bureau, District Mandi, H.P. and consequent proceedings arising out of the same are ordered to be quashed.
The record of the learned Trial Court be returned.
of (Rakesh Kainthla) Judge 12th January, 2024rt (Chander) ::: Downloaded on - 12/01/2024 20:36:59 :::CIS