Research › Search › Judgment

Uttarakhand High Court · body

2010 DIGILAW 12 (UTT)

Raj Kumari v. State of U. P.

2010-01-13

SHRI KANT TRIPATHI

body2010
JUDGMENT Shri Kant Tripathi, J: Heard learned courysel for the applicant and learned A.G.A. and perused the record. 2. With the consent of the learned counsel for the parties, the instant petition is being disposed of finally at the stage of admission. 3. It appears that the applicant Raj Kumari moved an application under Section 156 (3) Cr.P.C. before the Magistrate concerned with the allegations that she purchased a house from Uttar Pradesh Avas Evam Vikas Prarishad, Vashundhara, Ghaziabad and obtained possession thereof on 9.8.2009. The accused Raju Singh Tomar fabricated a. forged mukhatarnama and executed a sale deed transferring the applicant's house in favour of one Shalini Tyagi. The learned Magistrate found that the dispute was of civil nature and contractual and as such no cognizable offence was made out. Accordingly the learned Magistrate rejected the application under Section 156 (3) Cr.P.C. 4. The power• of the Magistrate to direct for police investigation under section 156(3) Cr.P.C. is well settled. When any application disclosing commission of a cognizable offence is moved before the Magistrate, he has power to direct the police to investigate the matter. Before doing so, the Magistrate has to see whether or not the facts stated in the application disclose commission of any cognizable offence. If the facts disclose commission of any cognizable offence, the Magistrate may direct the police to investigate the matter. If the application does not disclose commission of any cognizable office, it is open to the Magistrate to dismiss the application. At the stage of considering an application under section 156(3) Cr.P.C. the Magistrate is not required to make detailed examination of the merits of the case or to consider pros and cons of the allegations. In other words the Magistrate is not required to inquire into the truthfulness of the allegations either by holding an inquiry or otherwise. The allegations have to be taken as their face value while considering an application under section 156 (3) Cr.P.C. 5. Learned counsel for the applicant submitted that the applicant had specifically stated in her application that the Mukhtarnama, on which basis the sale deed was executed, was a forged . document fabricated by the accused Raju Singh Tomar. In view of the fact that the Mukhtarnama was forged, the sale deed executed on the basis of Mukhatarnana was also forged. Learned counsel for the applicant submitted that the applicant had specifically stated in her application that the Mukhtarnama, on which basis the sale deed was executed, was a forged . document fabricated by the accused Raju Singh Tomar. In view of the fact that the Mukhtarnama was forged, the sale deed executed on the basis of Mukhatarnana was also forged. The learned counsel for the applicant further submitted that the Mukhtarnama as well as sale deed were false documents within the meaning of section 464 I.P .C. and as such the accused has committed the offence of forgery as defined in section 463 I.P.C. Learned Magistrate was not justified in arriving at the conclusion that the dispute was of civil nature. 6. Section 463 I.P.C. defines forgery, which reads as follows :- "463. Forgery. Whoever makes any false document or false electronic record or part of a document or electronic record. 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 any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits "forgery". 7. 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 any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits "forgery". 7. Section 464 IPC defines false document, according to which a person is said to make a false document or false electronic record,- "Firstly, who dishonestly or fraudulently, (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record, (c) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not, made, signed, sealed, executed or affixed; or Secondly, who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or any electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly, who dishonestly or fraudulently causes any person to sign, seal, execute' or alter a document or an electronic record or to affix his digital signature on any electronic record' knowing that such person by reason of unsoundness of mind or intoxication can not, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. 8. The learned counsel for the applicant submitted that in view of the provisions of sections 463 and 464 I.P.C. it cannot be contended that the dispute was merely of civil nature specifically when the applicant hall alleged that the Mukhtarnama was not executed by her and- it was fabricated by the accused with some ulterior object to grab the house of the applicant. In my, opinion it is note proper for this court to express any opinion on the merits of the submissions of the learned counsel for the appellant the learned Magistrate is, however, required to examine the matter in the light of the provision of sections 463 and 464 I.P.C. and pass appropriate order afresh. 9. The application is, therefore, allowed. The learned .Magistrate is directed to reconsider the applicant's application under Section 156 (3) Cr.P.C. and pass appropriate orders thereon in accordance with law. .