Delhi District Court
Azizur Rehman Ansari vs State on 28 February, 2023
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 248 of 2022
CNR No.DLSE01-005406-2022
IN THE MATTER OF:
1. Azizur Rehman Ansari,
s/o Late Mohd. Umar,
R/o N-43, Thokar no. 5,
Abul Fazal Enclave, Jamia Nagar
New Delhi -110025
2. Shabnam Aziz
W/o Sh. Azizur Rehman Ansari,
R/o N-43, Thokar no. 5,
Abul Fazal Enclave, Jamia Nagar
New Delhi -110025
3. Seema Rizwan
W/o Late Rizwan Ahmad
R/o 133/2, Second Floor, Lane no. 13
Zakir Nagar, Jamia Nagar,
New Delhi - 110025
.......Revisionists
Versus
1. State
Govt. of NCT of Delhi
2. Ajaz Ahmad,
S/o Late Iftikhar Ahmad
R/o H.no. A-112, Johri Farm,
Noor Nagar Extension,
Jamia Nagar, New Delhi - 110025
........Respondents
Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 1 of 18
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.02.28
12:29:15 +0530
Instituted on : 07.06.2022
Reserved on : 16.02.2023
Pronounced on : 28.02.2023
JUDGMENT
1. Vide instant petition, revisionist takes exception to order dated 11.04.2022 passed by Ld Metropolitan Magistrate-08 (MM), South East District, Saket, New Delhi in case bearing Cr. No. 5601/2020 titled as State vs. Cancellation, whereby revisionists herein were summoned to face trial for offences u/s 420/468/467/471 IPC.
2. Brief facts as noted by Ld Trial Court are being reproduced for the sake of convenience :-
"Present FIR was registered on the basis of complaint given by the complainant to the effect that complainant had purchased 617 sq. yards of property bearing Khasra No. 317, Village Jasola, Mehrauli from one Nain Singh vide documents dated 22.11.1989. That complainant inducted one Azizur Rehman as care taker in the said property. That the said Azizur Rehman later on became dishonest and prepared forged and fabricated documents regarding the property in question. In the said documents, the said Azizur Rehman is claiming to have purchased 17 biswa of property situated in khasra no. 317 from brothers and sisters of Nain Singh vide documents dated 28.12.1989. After investigation, present cancellation report was filed by the IO on the ground that documents dated 28.12.1989 executed in favour of Azizur Rehman and others were got duly verified during investigation and the persons who executed the said documents in favour of Azizur Rehman and others admitted to the said execution. On the other hand, it is stated in the present cancellation report that disputed documents dated 22.11.1989 containing purported signatures of Nain Singh were sent for forensic examination and as per FSL report dated 13.01.2020, the said signatures of Nain Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 2 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:29:24 +0530 Singh could not be matched with admitted signatures of Nain Singh. As per the said FSL report, even signatures of one of the attesting witnesses Rizwan Ahmad were found different from the admitted signatures of the said Rizwan Ahmad. Since signatures of seller Nain Singh and witness Rizwan Ahmad were found to be different as per FSL report, present cancellation report was filed by the IO."
3. Record transpires that Ld Magistrate after considering the averments made in the complaint and the pre-summoning evidence led in support of same, vide impugned order dated 11.04.2022, summoned the revisionists herein for facing trial for offences u/s 420/467/468/471 IPC with following relevant observations :-
" I have heard the arguments and perused the record. As mentioned above, present cancellation report has primarily been filed on the basis of opinion given in the FSL Report regarding signatures of seller Nain Singh and witness Rizwan Ahmad. However, it is a settled principle of law that science regarding handwriting and signatures is not an exact science and FSL report in this regard can only have corroborative and persuasive value and is not binding and conclusive. In the instant case, perusal shows that documents in question dated 22.11.1989 bear signatures of two attesting witnesses namely Rizwan Ahmad and one Mohd. Ibrahim. Though signatures of the said Rizwan were found to be not matching with his admitted signatures in FSL examination, the other attesting witness Mohd. Ibrahim has duly corroborated execution of documents dated 22.11.1989. In his statement u/s 161 Cr.P.C., the said Mohd. Ibrahim has categorically stated that documents in question were executed in his presence at Tis Hazari Courts and that he has signed the said documents as a witness. Thus, from the statement of Mohd. Ibrahim, execution of documents dated 22.11.1989 (exectued by Nain Singh in favour of complainant) prima-facie stands proved in accordance with section 68 of Indian Evidence Act, 1872. It is also very pertinent to note here that accused persons are stated to have purchased around 17 biswa (i.e. around 800 sq. yards) of property from brothers and sisters of Nain Singh Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 3 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:29:32 +0530 vide documents dated 28.12.1989. However, as per one report of SDM dated 19.10.2016 (which is annexed with the present cancellation report), total area of khasra bearing no. 317 was around 2 bigha and 7 biswa (i.e. around 2350 sq. yards), out of which share of Nain Singh was around 2 bigha and 2 biswa (i.e. around 2100 sq. yards). As stated above, accused persons are stated to have purchased property from brothers and sisters of Nain Singh. Since share of Nain Singh out of 2350 sq. yards was around 2100 sq. yards (as per SDM report dated 19.10.2016), it is clear that remaining area in khasra no. 317 was around 250 sq. yards, which might have been available to brothers and sisters of Nain Singh for sale. However, as stated above, accused persons are claiming to have purchased around 800 sq. yards of property from brothers and sisters of Nain Singh. It does not stand to reason as to how the said brothers and sisters of Nain Singh could sell around 800 sq. yards of property out of khasra bearing no. 317, when their share itself was around 250 sq. yards (as per SDM report dated 19.10.2016). The said discrepancy in the area also raises grave suspicion about documents dated 28.12.1989 executed in favour of accused persons.
It must also be noted here that documents in question dated 22.11.1989 (on the basis of which complainant is claiming ownership) are stated to have been notarized. However, the said notary was never examined during investigation of this case, and neither was the stamp paper vendor who had issued the stamp papers for execution of documents dated 22.11.1989. The said lacuna coupled with the statement of attesting witness Mohd. Ibrahim along with discrepancy in area as noted above reflects towards commission of offences punishable u/s 420/468/467/471 IPC by the accused persons namely Azizur Rehman, Seema Rizwan, Rizwan Ahmad and Shabnam Aziz. It must be noted here that accused Rizwan Ahmad is stated to have already expired.
In view of the above discussion, let accused Azizur Rehman, Seema Rizwan and Shabnam Aziz be summoned through IO/SHO for NDOH."
4. Revisionists are aggrieved with the said order and have assailed the same on various grounds which can be summarized as under:-
Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 4 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:29:39 +0530
(i) That the impugned is against the settled principle of law and as such same is bad in law;
(ii) That Ld Trial Court has passed the impugned order in haste without appreciating facts of case;
(iii) The Ld. Trial Court has failed to appreciate that in the entire final report except complainant, no one has alleged that revisionists have forged the documents;
(iv) The Ld. Trial Court failed to appreciate that as per FSL report, the title documents of complainant were forged and fabricated and that he was never in possession of the property;
(v) That Ld Trial Court failed to appreciate that the report of SDM dated 19.10.2016 is based on incorrect entry in khautani of 1982-83 wherein share of Nain Singh is wrongly mentioned as 8/9 instead of 2/3 and proceedings of Revenue Department of year 2017 for correction of share of Nain Singh was ignored;
(vi) That Ld Trial Court failed to consider that the copy of khasra Khautani of preceedings years and registered title documents dated 09.12.1985 of property sold by Nain Singh to Ghyasuddin clearly shows that share of Nain Singh is is 2/3 share.
(vii) That Ld Trial Court failed to consider that the Trial Court has wrongly and contrary to SDM's report dated 19.10.2016 observed that out of 2350 Sq. Yards of land in khasra no. 317, around 2100 Sq. Yards share in property belongs to Nain Singh and remaining 250 Sq. Yards belongs to his brother's and sister's then as to how they could sell 800 Sq. Yards of the property.
(viii) That the observations made in impugned order is with respect to documents of complianant only and having no bearing/relevance with the present case;
(ix) That the Ld. M.M. failed to appreciate the statement of Jeet Singh @ Satish Kumar who is son of the Nain Singh who stated that his father had 2/3 share of land out of which his father sold 20 Biswa to Ghyansuddin, 10 Biswa to Jagan Singh and remaining 17 biswa was sold by children to his second grand mother to revisionist herein on 28.12.1989 and Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 5 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:29:47 +0530 Jeet Singh was witness to the agreement to sell and Nain Singh did not sell any land to Ajaz Ahmad;
(x) That the Ld. Trial Court failed to appreciate the statement of Karam Singh, Om Prakash Singh @ Hari Singh and Jeet Singh @ Satish Kumar whereby it was confirmed that 17 biswa land of Khasra No. 317 was sold on 28.12.1989 to the petitioners by siblings of Nain Singh and possession of same was taken in same year by making payment through bank draft/cash etc.;
(xi) That the Ld. Trial Court has failed to appreciate that Ajaj Ahmad (respondent herein) initially filed civil suit no. 68/2016 later withdrew the same. He again filed W.P. (C) 2061/2016 and later withdrew the same. Again he filed civil suit no. 242/2016 which is pending adjudication;
(xii) That the Ld. Trial Court has failed to appreciate that complainant (respondent herein) is involved in FIR No. 820/2016, FIR No. 221/2014, FIR No. 270/2016 and FIR No. 217/2019 pertaining to offences punishable U/S 419/420/467/468/471 IPC etc;
(xiii) That the Ld. Trial Court has failed to appreciate that there is no suspicion or evidence against the revisionists herein for commission of offence U/S 420/468/467/471 IPC;
(xiv) That the Ld. Trial Court has failed to appreciate the relevant observations of the CFSL report and final report which suggest that during interrogation respondent Ajaz ahmad retracted from his previous version and stated he did not know Nain Singh nor Rizwan Ahmad signed in his presence;
(xv) Ld. Trial Court has discarded the credibility of FSL report as per which, the title documents of Ajaj Ahmad were found forged.
5. Ld. Counsel for revisionist argued on the similar lines of grounds as taken in the instant revision petition. It was argued that Ld Trial Court passed the impugned order against the settled principles of law. It was vehemently argued that no case for summoning is made out Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 6 of 18 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:29:56 +0530 against the revisionist. It was argued that the impugned order is liable to be set aside as the allegations against the revisionists are baseless and unfounded. Ld counsel for revisionists has relied upon judgments Hon'ble Apex court in Md. Ibrahim & Ors. vs. State of Bihar & Anr., 2009 (6) Supreme 470 and Deepak Gaba & Ors. vs. State of Uttar Pradesh 2023 0 Supreme (SC) 2 in support his contentions.
6. Per contra, it was argued on behalf of respondent no. 2 that there is no infirmity and illegality in the impugned order and Ld Trial Court has rightly summoned the revisionists keeping in view the facts and circumstances of the case and the material available on record. It was further argued that the instant revision petition is liable to be dismissed. It was argued that Ld counsel for revisionists has failed to point out any patent illegality or infirmity in the impugned order. It was further argued that Jeet Singh S/o Late Nain Singh has signed on agreement to sell dated 28.12.1989 and the said agreement is neither registered nor notarized. It was argued that though the documents were made, signed and executed on 28.12.1989 but were notarized on 01.12.1989 and registration number of Notary public is not mentioned which is mandatory under Rules 11(2) & 11 (4) and Rule 14 of the Notaries Rule 1956.
6A. It was argued that the brothers and sisters of Nain Singh had sold more than their share of property to the revisionists. It was further argued that the witnesses namely Azizur Rehman, Babbu, Jeet Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 7 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:30:07 +0530 Singh Chauhan, Karam Singh etc. are interested witnesses whereas witnesses Nizamuddin and Aslam are irrevalent witnesses who have been relied upon by IO. It is argued that the documents of accused persons were never sent to FSL. Respondent has relied upon the judgment of 'Ravi Karumbaiah vs. State (MANU/DE/3587/2015)' and 'Mrigendra Pritam Vikram Shingh Steiner and Ors. vs. Jaswinder Singh & Ors. (MANU/DE/0045/2019)'. On the strength of these arguments, respondent prayed for dismissal of instant revision petition.
7. I have heard rival contentions and perused the record.
8. Before proceeding further, it would apt to recall the note of caution that was voiced by the Apex Court in M/s. Pepsi Foods vs. Special Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128. The Apex Court held that summoning of an accused in a Criminal case is a serious matter. The relevant observations at para 26 of the judgment is reproduced hereunder:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 8 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:30:15 +0530 the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
9. Similar are the observations of Apex Court in a recent judgment titled as Ravindranatha Bajpe Vs Mangalore Special Economic Zone Ltd., LL 2021 SC 505, Case no. CrA 1047-1048/2021, decided on 27.09.2021.
10. The case of the complianant/respondent no. 2 at best is that vide documents dated 28.12.1989, despite being owner of lesser share, Sher Singh, Karam Singh, Zile Singh, Shyam Singh, Neeraj, Smt. Kunti and Smt. Gehlo i.e. brothers/sister of Nain Singh transferred more property to the revisionists/accused than they were actally entitled to. However, that by itself he would not bring the documents dated 28.12.1989 within ambit of false document as the defined under Section 464 IPC. Merely because vide said document dated 28.12.1989 more property was transferrd in favour of revisionists than acutal share of the transferror, it cannot be said that false/forged documents was created.
11. Relience is placed upon the judgment of Muthammal vs. S. Thangam, Crl. O.P (MD) No. 6423 of 2016 and Crl. M.P. (MD) Nos. 3192 of 2016, passed by Hon'ble Madras High Court on 05.10.2018. Relevant portion of the judgement is reproduced as under:-
"8. It will be useful to refer the judgment of the Hon'ble Supreme Court in Mohammed Ibrahim and others Vs. State of Bihar and Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 9 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:30:25 +0530 another reported in (2009) 8 SCC 751. The relevant portions are extracted hereunder:-
13.The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of section 464 of 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 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, 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, 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 a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
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 Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 10 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:30:36 +0530 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. 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."
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 471of the Code are attracted.
Section 420 IPC
18. 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 Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 11 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:30:46 +0530 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.
19.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 capable of being converted into a valuable security).
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.
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.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.02.28
12:30:53 +0530
9.It will also be relevant to refer the judgment of the Hon'ble Supreme Court in Sheila Sebastian Vs. R.Jawaharaj and another reported in (2018) 3 MLJ (Crl) 39 (SC) LNIND 2018 SC 265. The relevant portions are extracted hereunder:-
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that-
"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 practicing deception, or from a person not in control of his senses."
22. In Md. Ibrahim and others V. State of Bihar and another (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 13 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:31:02 +0530 (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
23. The Court in Md. Ibrahim and others V. State of Bihar and another (supra) observed that:
"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.
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."
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24. In Mir Nagvi Askari vs. Central Bureau of Investigation, AIR 2010 SC 528 : (2009) 15 SCC 643, LNIND 2009 SC 1651 : (2010) 4 MLJ (Crl) 611, this Court, after analysing the facts of that case, came to observe as follows: "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 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 someone else. The second criteria 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 criteria 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.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
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 Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 15 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:31:16 +0530 which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute 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 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 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.
10. It is clear from the above judgments that unless the allegations made in the complaint constitutes the offence under Section 464, the entire complaint cannot be sustained. When a person executes a document conveying the property by describing it as his property, two possibilities will arise. The first possibility is that he bona fide believes that the property belongs to him. The second possibility is that he dishonestly and fraudulently claims the property to be his property, even though he knows that the property does not belong to him. If the case is falling under the first category, it is not sufficient that the document has been executed dishonestly or fraudulently. A further requirement needs to be satisfied which is that it should have been executed with an intention of giving an impression that the document was executed with the authority of the 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 some one else, nor is he claiming that he is authorised by some one else. Therefore, the execution of such document is not execution of a false document as defined under Section 464 of the Code of Criminal Procedure".
12. Be that as it may, even otherwise the statement of Karan Singh (one of the executors of documents dated 28.12.1989) was recorded during investigation and in his statement he admitted to have transferred alongwith other executant their part of share in the property in question in favour of revisionists. The said statement was duly Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 16 of 18 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:31:24 +0530 corroborrated with the statement of witness Om Prakash. Therefore, once the execution of the said document has been admitted by its executor, no question for forgery arises.
13. That apart, the document dated 22.11.1989 by which complainant/R2 claims to have purchased the property from Nain Singh, has proved to be forged in view of the FSL report wherein it was clearly opined that the signatures of Nain Singh and one of the attesting witness Rizwan did not match with their admitted signatures. Further, the son of the Nain Singh namely Jeet Singh @ Satish also stated that his father never sold the property in question to respondent No.2 Ajaz Ahmad. Therefore, in view of the FSL report and the statement of Jeet Singh @ Satish, it appears that it was the document (dated 22.11.1989) of complainant which is a forged document. Ld. Trial Court did not assign any cogent reason to discard the FSL report and brushed it aside lightly by observing that the science of handwriting is not a perfect science.
14. In my considered opinion, Ld. Trial Court erred in law in relying upon the testimony of Md. Ibrahim who claims to have signed as witness on the document dated 22.11.1989 as the said witness himself is an accused in FIR No. 820/16, PS Jamia Nagar alongwith the complainant Ajaz Ahmad for forgery of the said document and charges on that count have already been framed against them by Ld. Trial Court vide order dated 10.11.2022.
Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 17 of 18
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2023.02.28
12:31:31 +0530
15. Further, Ld. Trial Court also summoned the revisionists for offence u/s 420 IPC, however there is no material on record in support of said allegations as it is not the case of respondent no.2/complainant that he was induced in any manner by the revisionist to do or omit to do an act which he would not have done or omitted to do but for such inducement.
16. Therefore, even if, whole case of complainant/ respondent No.2 is taken true on its face value, then also no ground is made out for summoning of any of the revisionists and the investigating agency took a right course by filing cancellation report in the instant case.
17. In my considered view, Trial Court erred in law by passing the impugned order and same cannot be sustained in the eyes of law. Accordingly, the instant petition stands allowed. The impugned order dated 11.04.2022 stands set aside herein.
18. TCR be sent back to the Ld. Trial court along with copy of this judgment.
19. Revision file be consigned to Record Room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2023.02.28 12:31:40 +0530 Announced in the open (ANUJ AGRAWAL) Court on 28th February 2023 Additional Sessions Judge-05, South East, Saket Courts, New Delhi Crl Rev. No. 248/2022 Azizur Rehman vs. State & Anr. Page No. 18 of 18