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2010 DIGILAW 4948 (MAD)

R. Lakshminarayanan v. D. Gurumurthy

2010-11-08

G.M.AKBAR ALI

body2010
Judgment :- 1. This Petition is filed seeking a direction to call for the records in C.C. No.9723 of 2008 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai and quash the same. 2. The Respondent was the original owner of Plot Nos.27 and 28 in S.No.708, Velachery, Chennai. He had purchased the property under two Sale Deeds in the year 1970. The Respondent sold Plot No.28 to one I.V. Lakshmi of T. Nagar under a registered Sale Deed 19.5.1980. He had not sold plot No.27. The Respondent was a Central Government Servant and after his retirement, he went to inspect the said property in the year 2003. To his shock, he found that there was a building in the plot, occupied by the Petitioners. On enquiry, he found that the said Plot No.27 has been sold by the said I.V. lakshmi on the strength of an alleged Sale Deed by the de facto Complainant. The Respondent found that such Sale Deed was manipulated and a fraud has been committed by selling his property, as if it has been sold by the Respondent. 3. According to the Respondent, the said Lakshmi had played a fraud. She expired on 2.12.1988. After her death, her daughters Revathi, and Rajeswari with the connivance of their husbands, had sold the property to the Petitioners. According to the Respondent, the Petitioners and the legal heirs of the Lakshmi, had entered into a Criminal Conspiracy in the year 1999, created bogus Sale Deeds and transacted in respect of his property and thereby committed offence punishable under Sections 120B, 420, 467, 468 and 471, I.P.C. 4. Initially, the Respondent gave a Complaint to the Central Crime Branch, Chennai and the case was registered in Cr.No.90/2004. After a detailed investigation, the Complaint was closed as the dispute is of Civil nature. The Respondent filed a Protest Application before the learned XI Metropolitan Magistrate, Saidapet, Chennai and on considering the Protest Petition, the learned Magistrate has taken cognizance of the offence in C.C. No.9723/08 and the same is pending. 5. After a detailed investigation, the Complaint was closed as the dispute is of Civil nature. The Respondent filed a Protest Application before the learned XI Metropolitan Magistrate, Saidapet, Chennai and on considering the Protest Petition, the learned Magistrate has taken cognizance of the offence in C.C. No.9723/08 and the same is pending. 5. The Petitioners, who have been arrayed as A.4 to A.7 who are the subsequent purchasers from the legal heirs of the said Lakshmi, have approached this Court to call for the records and quash the charges against it them on the following grounds: (a) The Respondent had sold Plot No.28 to the said I.V. Lakshmi by a Sale Deed dated 19..1980. The Respondent had again sold the plot bearing No.27 to I.V. Lakshmi through a registered Sale Deed dated 18.7.1980. The said Lakshmi was in possession and enjoyment of the property and the Tahsildar had issued Patta. (b) The said Lakshmi died on 2.12.1988 leaving behind two daughters. They have sold Plot No.27 to the Petitioners in the year 1999 by way of registered Sale Deeds. The Petitioners have purchased the property only on the strength of the sale Deed dated 18.7.1980 and the Patta issued by the Tahsildar. (c) Till their purchase in the year 1999, they have nothing to do with the property. (d) Therefore, the alleged Criminal Conspiracy is false and even according to the Respondent, the Petitioners have not created false or forged documents. 6. Mr. K.S. Rajagopalan, the learned Counsel for the Petitioners submitted that the Petitioners are the bona fide purchasers and they have not created any false documents. The learned Counsel also submitted that the alleged Criminal conspiracy is unfounded as they have purchased the property only in the year 1999 and the alleged offence was in the year 1980. The learned Counsel relied on a decision in Mohd. Ibrahim v. State of Bihar, 2009 (3) SCC (Crl.) 929, wherein, the Apex Court held as follows: “13. The condition precedent for an offence under Sections 457 and 471 is forgery. The condition precedent of forgery is making a false document (or false) electronic record or part thereto). This case does not relate to any false electronic record. Ibrahim v. State of Bihar, 2009 (3) SCC (Crl.) 929, wherein, the Apex Court held as follows: “13. The condition precedent for an offence under Sections 457 and 471 is forgery. The condition precedent of forgery is making a false document (or false) electronic record or part thereto). 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.” 7. On the contrary, Mr. Bhiman, the learned Counsel for the Respondent submitted that a Sale Deed was created as if the Respondent had sold the property to I.V. Lakshmi with an active participation and connivance of the Petitioners and the legal heirs of Lakshmi. The learned Counsel pointed out that only on the prima facie case of the Respondent, the learned Magistrate had taken cognizance of the offence and this Court cannot conduct a rowing enquiry at this stage and discharge the Petitioners. The learned Counsel pointed out that this Court cannot look into the documents of the Accused at this stage. 8. Heard and perused the materials available on record. 9. The specific case of the Respondent is that he had sold only Plot No.28 to the said I.V. Lakshmi and he had not sold Plot No.27. According to the Respondent, the registered document dated 17.7.1980 purported to have been executed by the Respondent to the said Lakshmi, was a forged hand fraudulent document and the Petitioners are parties to the Criminal conspiracy to defraud the Respondent by depriving him of his property through creation of bogus Sale Deed. 10. The Petitioners have admitted that they had purchased the property from the legal heirs of I.V. Lakshmi. The Sale deed dated 18.7.1980 would show that the Respondent had sold Plot No.27 to the said I.V. Lakshmi. On the death of the said I.V. Lakshmi, the legal heirs have sold the property only in the year 1999 in favour of the Petitioners. 11. The only allegation against the Petitioners is that they have hatched a Criminal conspiracy during the year 1999 to defraud the Respondent. In Mohd. On the death of the said I.V. Lakshmi, the legal heirs have sold the property only in the year 1999 in favour of the Petitioners. 11. The only allegation against the Petitioners is that they have hatched a Criminal conspiracy during the year 1999 to defraud the Respondent. In Mohd. Ibrahim v. State of Bihar, 2009 (3) SCC (Crl.) 929, the Supreme Court has dealt in detail on the provisions of Section 467, 471 and 420 of IPC, the Apex Court has held as follows: “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 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 the 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 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 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.”. 12. In my considered view, the theory of conspiracy is far reaching. The Petitioners have come into picture only in the year 1999. 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.”. 12. In my considered view, the theory of conspiracy is far reaching. The Petitioners have come into picture only in the year 1999. Therefore, even on the face of the record, there is no offence made out against these Petitioners. It is well settled that the powers of the Court under Section 482, Cr.P.C. can be exercised if there is abuse of process of Court. This is one such case, where this Court has to exercise its jurisdiction. 13. In the result, the Criminal Original Petition is allowed and the proceedings in C.C. No.9723 of 2008 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai is quashed against these Petitioners. Consequently, connected M.P. is closed.