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On the basis of the said complaint, FIR No.66/2011 has been registered at P.S. Jamsar which is subject matter of challenge in the instant petition filed on behalf of petitioner Ganesh Dan, alleged purchaser of the property in question.

Assailing the impugned FIR, learned Sr.Adv.

Mr.Mahesh Bora assisted by learned counsel Mr.Vinod Sharma for the petitioner submitted that in this case even if the allegation of the prosecution is taken to be true, then also ex-facie, there is no material to show that the petitioner committed any offence whatsoever. It is submitted that neither the petitioner gave any inducement to the complainant nor the petitioner has forged any document because admittedly none of the signatures on the sale deed in question have been found to be fraudulently/ falsely appended. It is further submitted that the transaction entered into between the sellers and purchasers does not constitute any act of fraud as defined under Section 415 IPC. It is further submitted that merely by making allegedly wrong connotations in the document, no offence of fraud can be said to be made out and that it is trite law that the seller does not pass on better title then he has. Thus, it is submitted that neither the petitioner has cheated the complainant nor has he created any forged document so as to permit the continuation of the F.I.R. qua the petitioner. Thus, it is prayed that the impugned F.I.R.

9. The term "forgery" used in these two sections is defined in Section 463. Whoever makes any false documents with intent to cause damage or injury to the 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 express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below :

"464. Making a false document.- A person is said to make a false document or false electronic record-

A clarification

15. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term 'fraud' is not defined in the Code. The dictionary definition of 'fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines 'fraud' with reference to a party to a contract. In Dr. Vimla v. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression 'defraud' thus "The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."

The above definition was in essence reiterated in State of UP v. Ranjit Singh- 1999 (2) SCC 617 : (1999 AIR SCW 863).

16. The Penal Code however defines 'fraudulently', an adjective form of the word 'fraud', in Section 25, as follows :

"A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise". The term "fraudulently"

is mostly used with the term "dishonestly" which is defined in Section 24 as follows :

"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly". To 'defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include: