Research › Search › Judgment

Gujarat High Court · body

2010 DIGILAW 176 (GUJ)

HIMMATLAL MOHANLAL SHAH v. STATE OF GUJARAT

2010-03-30

JAYANT PATEL

body2010
JUDGMENT 1. The short facts of the case appears to be that respondent No.2 file complaint under Sections 193, 196, 463, 464, 465, 467, 468, 469, 471, 120(B) and 114 of IPC before the learned Judicial Magistrate being Complaint No.21/2002 against the petitioners herein. The learned Magistrate at the initial stage, vide order dated 17.6.2002, directed for investigation under Section 156(3) of Cr.P.C. The matter was sent to the concerned Police Station. The Police Officer investigated into the matter and 'B' Summary Report was submitted on 6.11.2002 by the concerned Police Sub-Inspector, Palitana Town Police Station, stating that it is a civil dispute, the matters are pending before the Civil Court and the offence is not committed and the complaint appears to be false. The learned Magistrate, thereafter, issued notice to the complainant and subsequently heard the complainant and passed the order on 19.8.2002, whereby he observed that the revenue record, on the basis of which the 'B' Summary Report has been filed, is having presumptive value and he found that on the basis of the material produced with the Investigation Report, cognizance deserves to be taken for the offence under Section 463, 465, and 471 read with Section 114 of IPC, therefore, the process was issued vide order dated 19.2.2003 upon the accused-petitioners herein. It is under these circumstances the present revision before this Court. 2. Heard Mr. A.D. Shah, learned Counsel appearing for the petitioners, Mr. K.P. Raval, learned APP for the State and Mr. Mangukiya, learned Counsel for respondent No.2. 3. It appears that the matter is at the stage of issuance of process by the learned Magistrate upon the report submitted before him under Section 156(3) by the Police. Therefore, the aspects to be considered would be whether the learned Magistrate has committed error of exercise of the jurisdiction in issuance of the process on the basis of the material before him or not. 4. The perusal of the order passed by the magistrate shows that the process has been issued for the offences under Section 463, 465, 471 and 114 of IPC. In order to examine the aforesaid aspects, reference to legal position for constitution of the offences would be relevant. The Apex Court in the case of Md. Ibrahim & Ors. 4. The perusal of the order passed by the magistrate shows that the process has been issued for the offences under Section 463, 465, 471 and 114 of IPC. In order to examine the aforesaid aspects, reference to legal position for constitution of the offences would be relevant. The Apex Court in the case of Md. Ibrahim & Ors. v. State of Bihar & Anr., reported in JT 2009(11) SC, 533 (2009(8) SCC, 751 & 2010(1) GLH, 184) had an occasion to examine the scope and ambit for the constitution of offences under Sections 464, 467, and 471. The relevant observations can be extracted from paragraphs 8 to 12 as under:- “8. Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under section 467 or section 471 of Penal Code. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 defines a forged document as a false document made by forgery. 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. 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-- First.--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 a 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 an 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 alternation; 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 cannot, 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. Explanation 1 - A man's signature of his own name may amount to forgery. Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. [Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]." 9.1 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). [Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]." 9.1 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. 10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories: 10.1. The first is where a person dishonestly or fraudulently makes or 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. 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 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. 12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. 12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. 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 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 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. (Emphasis supplied) 5. 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. (Emphasis supplied) 5. If the facts of the present case are examined in light of the aforesaid legal position, it is not the case of the complainant that the document has not been executed by any of the accused, nor is it the case of the complainant that the accused have falsely identified themselves in place of others at the time of execution of the document. Therefore, the documents, which are executed or which are made as a basis for filing complaint can neither be stated to be false or fabricated or bogus. The whole tenor of the complaint, and as rather argued by the learned Counsel for the original complainant-respondent No.2 herein, is that the area of 0-39 gunthas of land bearing Survey No.317 was not held by the accused and in spite of the same, the document is executed by the petitioner No.1-accused in favour of the petitioner No.2-accused No.2 and, therefore, the document could be termed as false and fabricated document, which may attract the ingredients of the offence, for which process has been issued by the learned Magistrate. It was also contended that the learned Magistrate has also considered the matter on that basis and the process has been issued. 6. It may be recorded that as per the report of the Police Officer, the land was held by Babulal Dave, admeasuring 6 acres and 3 gunthas, out of which the land admeasuring 3 acres was sold to Bharwad Chotha Uka and another area of 3 acres was sold to Kushalraj Hazarimal Jain. The area, which was purchased by Bharwad Chotha Uka was thereafter sold to petitioner No.1. It appears that the sale deed provides for sale of 3 acres of land and the conversion of the land into non-agricultural land is said to be of 2 acres and 01 gunthas of land. Therefore, if the matter is considered on the basis of the sale deed as it was, if for the remaining land in transaction is entered into, such could not be termed as a document by committing offence as sought to be canvassed. Therefore, if the matter is considered on the basis of the sale deed as it was, if for the remaining land in transaction is entered into, such could not be termed as a document by committing offence as sought to be canvassed. Be it noted that the civil suits are filed by the complainant as well as by the accused and they are pending before the respective Courts. In the civil suit, the question as to whether there was any surplus land remaining after Babulal Dave sold the whole area to different parties and thereafter whether the complainant could lawfully acquire the portion for which the claim is made by him also will have to be considered by the concerned Civil Court. The Civil Court also will have to consider as to whether the area of 0.39 gunthas was falling short in comparison to the original land held by Babulal Dave, which was conveyed to Bharwad Chotha Uka and others or not; if yes, the location thereof and the rights of the respective parties. It prima facie appears that the dispute between the complainant and the accused appears to be purely of a civil in nature and though there was no basic ingredients for constitution of offence, the learned Magistrate has recorded prima facie findings for constitution of the offence. As observed earlier, if the document is executed by a person and the document is genuine, merely because there is a dispute for measurement of the area at site or ownership of the land, such cannot be termed as prima facie satisfying the requirement for alleged offence as considered by the learned Magistrate. The learned Magistrate has lost sight of the important aspect of that the dispute is essentially a civil dispute, for which the matters are pending before the respective Civil Courts and the tendency on the part of the litigant to resort to criminal prosecution deserves to be deprecated and even in the decision of Apex Court in the case of Md. Ibrahim & Ors. v. State of Bihar & Anr. (supra) at paragraph 7, it was observed as under:- “7. Ibrahim & Ors. v. State of Bihar & Anr. (supra) at paragraph 7, it was observed as under:- “7. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See: G. Sagar Suri v. State of U.P. [ 2000 (2) SCC 636 ] and Indian Oil Corporation vs. NEPC India Ltd. [ 2006 (6) SCC 736 ]. Let us examine the matter keeping the said principles in mind. (Emphasis supplied) 7. If the matter is further examined in light of the aforesaid, it appears that in spite of the fact that the ingredients of the alleged offence punishable under Section 463, 465, 471 and 114 of IPC, though were not prima facie available on record, the learned Magistrate has exercised the power for issuance of process and the same can be said to be a jurisdictional error, which deserves to be interfered with in revisional jurisdiction. 8. Hence, the impugned order passed by the learned Magistrate is quashed and set aside. The matter shall stand restored to the file of the learned Magistrate at the stage of acceptance of the Summary Report. Rule made absolute accordingly.