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Jharkhand High Court · body

2012 DIGILAW 1222 (JHR)

Kishori Prasad Sao v. State of Jharkhand

2012-08-14

R.R.PRASAD

body2012
ORDER By the Court.- Heard learned counsel appearing for the petitioners, learned counsel appearing for the State and also learned counsel appearing for the opposite party No.2. 2. This application is directed against the order dated 19.4.2011 passed by the learned Sessions Judge, Giridih affirming the order dated 14.1.2009 passed by the Judicial Magistrate, Giridih in Giridih (Town) P.S. Case No. 93 of 2007 whereby and whereunder prayer of the petitioners for discharging them from the accusation under Sections 420, 467, 468/34, of the Indian Penal Code was rejected. 3. Before adverting to the submissions advanced on behalf of the parties, the case of the prosecution needs to be taken notice of. 4. It is the case of the complainant/informant that the complainant. Sheikh Niyazuddin @ Santu, Sheikh Anwar @ Bittu, Bibi Fatima and Bibi Doli executed a registered power of attorney in favour of the petitioners on 5.6.2004 with respect to, their land pertaining to khata No.1. Plot Nos. 569, 570, 576, 584 and 586 measuring total area of 98 decimal situated at village Dhariadih. Police Station and District - Giridih. On the following day, i.e. 6.6.2004 an agreement was also executed stipulating therein that if the petitioners will execute sale-deed, they will inform about it to the informant/complainant so that consideration amount be fixed in their presence and the sale proceed be divided equally between the informant and the accused persons. In spite of that, petitioners in order to grab the aforesaid land executed sale-deeds in favour of their respective wives in the year 2006 showing consideration amount of Rs. 1,40,000/- which was less than the market value and that the petitions never paid a single farthing to the informant. On such allegation, a case was registered as Giridih (Town) P.S. Case No. 93 of 2007 under Sections 420, 467, 468/34 of the Indian Penal Code. On submission of the charge-sheet, cognizance of the aforesaid offences was taken. Thereupon an application for discharge was filed before the Court below which was rejected. Against that order, Revision was preferred vide, Cr. Rev. No. 16 of 2009 which also got dismissed. Both the orders passed by the trial Court and also by the revisional Court are under challenge. 5. Mr. Thereupon an application for discharge was filed before the Court below which was rejected. Against that order, Revision was preferred vide, Cr. Rev. No. 16 of 2009 which also got dismissed. Both the orders passed by the trial Court and also by the revisional Court are under challenge. 5. Mr. Modi, learned counsel appearing for the petitioners submits that accepting the entire allegations in its entirety to be true, no offence either of forgery or of cheating is made out as the petitioners had never been alleged to have induced the informant/ complainant fraudulently and dishonestly to execute power of attorney in favour of the petitioners nor they in the face of allegation can be said to have deceived the informant and as such, no offence of cheating is made out. 6. Learned counsel in this respect further submits that even if the allegation that the petitioners did sell the land without informing the informant at a lower price is accepted to be true it will not constitute any offence, rather it will be a simple case of breach of agreement, for which the petitioners cannot be prosecuted criminally. 7. As against this, learned counsel appearing for the informant submits that the parties have entered into an agreement where there was stipulation that whenever, the petitioners in whose favour power of attorney had been executed, will sell the land, they will be informing the informant but the petitioners without informing the informant sold the land and that too at lessor value and thereby the petitioners can be said to have committed offence of cheating. 8. In the context of the submission, one needs to take notice of the provision as contained in Section 415 of the Indian Penal Code deals with the offence of cheating which reads as follows : "Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to cheat". 9. 9. From its reading it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) There should be fraudulent or dishonest inducement on the part of a person for deceiving one, (2)(a) the person so deceived should be induced to deliver any property to any persons. or to consent that any person shall retain any property, or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. (3) in cases covered by 2(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property. 10. Applying the principle constituting a criminal offence of cheating in context of the allegation it does appear that the petitioners have never been alleged to have induced the complainant-informant fraudulently or dishonestly to execute the power of attorney nor does it appear to be a case of deception rather case appears to be of a breach of agreement. 11. Under this situation, no offence is made out under Section 420 of the Indian Penal Code. 12. So far the offence under Sections 467 and 468 of the Indian Penal Code is concerned. that also does not get attracted. 13. Here I would straightway refer to a decision rendered in a case of Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751 which was followed by this Court in a case of Avijit Ghosh and another v. State of Jharkhand and another. 2010 (2) JLJR 579 . 14. In the case of Mohammed Ibrahim and others v. State of Bihar and another (supra) their Lordships after having regard to the provision as contained in Section 470 as well as other provisions relating to forgery observed as follows : "The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (on false electronic record or part thereof). This case does not relate to any false electronic record. The condition precedent for forgery is making a false document (on 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." 15. The Court has further observed that analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three categories as follows : "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. The second is where a person dishonestly or fraudulently, by cancellation or otherwise. alters a documents in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 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 be reason of : (a) unsoundness of mind; (b) intoxication; or (c) deception practiced 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 statement', if : (i) he made or executed a document claiming to be someone else or authorized 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. Thus, it has been categorically held that when a document is executed by a person claiming a property though it is not his property but when he is not claiming that he is authorized by someone else or he is someone else, execution of such document cannot be said to be a false document in terms of Section 464 of the Indian Penal Code and if it is not a false document, then the question of committing an offence under Sections 467, 468 and 471 does not arise. 17. 17. Under the aforesaid situation, sale-deeds executed by the petitioners can not be termed as false document as it will not fall within any of the categories illustrated above of false document. 18. Thus, the Courts below did commit illegality in rejecting the prayer for discharge of the petitioners and hence, those orders are hereby, set aside. 19. Consequently, the petitioners are discharged from the accusation. In the result, this application stands allowed. Application allowed.