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2012 DIGILAW 2313 (RAJ)

Solomen Smith v. State of Rajasthan

2012-12-14

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—These two instant miscellaneous petitions have been filed by the petitioners Solomen Smith and Prakash Chand Doshi seeking quashing of the F.I.R. No. 7/2011 registered at P.S. Abu Parvat, Dist. Sirohi for the offences under Sections 420, 467, 468, 471 and 120-B IPC. 2. Succinctly stated the facts of the case are that the complainant respondent No. 2 claiming himself to bee the Secretary of the Gujarat Christian Service Society I.P. Mission Compound, Station Road, Anand filed a complaint in the Court of A.C.J.M. Mount Abu against four persons viz. Solomen Smith, Prakash Chand Doshi, Chandra Shekhar Rao and Narayan Singh for the aforesaid offences. As per the allegations levelled in the complaint, the complainant is the Secretary of Gujarat Christian Service Society. The society had been formed for the purpose of managing the properties of the Indian Presbyterian Mission Trust (I.P. Mission Trust). The complainant further claimed that he had been authorised by the Gujarat Christian Service Society I.P. Mission to deal with all the legal matters of the society as well as the trust. It is further alleged in the complaint that the headquarter of the I.P. Mission Trust is located in the I.P. Mission Compound Elis Bridge, Ahemedabad and that various properties of the trust are located at different places. The complainant further alleged that one of the properties of the I.P. Mission Trust measuring 1.5 acres known by the name Palm View is located at Kalchhapara, Mount Abu. It was further alleged that the property Palm View was under the ownership and management of the Gujarat Christian Service Society and it was occupied and being used by it. The complainant further alleged that the accused persons named in the complaint, in order to usurp the aforesaid property of the trust obtained photo stat copies of title deeds and other documents of the property. Thereafter the accused No. 1 i.e. Solomon Smith claiming himself to be authorised by the Indian Canadian Presbyterian Mission and fraudulently projecting the property to be that of the Indian Canadian Presbyterian Mission executed a sale deed of the said property in favour of the accused No. 2 i.e. Prakash Chand Joshi. The accused No. 3 Chandra Shekhar Rao and accused No. 4 Narayan Singh identified the accused No. 1 in the sale deed and became witnesses of the sale which was registered at the Sub Registrar Office, Abu Road. The accused No. 3 Chandra Shekhar Rao and accused No. 4 Narayan Singh identified the accused No. 1 in the sale deed and became witnesses of the sale which was registered at the Sub Registrar Office, Abu Road. The complainant on coming to know of the execution of sale deed obtained a certified copy of the sale deed from the Sub Registrar Office. The complainant further claimed in the complainant that the accused No. 1 to 4 knew fully well that the property named palm View was not owned by Indian Canadian Presbyterian Mission but despite that, fraudulently claiming the property to be that of Indian Canadian Presbyterian Mission a forged sale deed was executed by the accused No. 1 Solomen in favour of the accused No. 2 Prakash Chand Doshi. The complainant further claimed that the sale consideration of the property was kept at Rs. 60 lacs and 9 lacs were claimed to have been given as an advance to the accused whereas the actual market value of the trust property runs into crores of rupees. The complainant submitted in the complaint that fraudulent and forged documents were created in order to usurp the property of the I.P. trust. The property of the I.P. Mission Trust was fraudulently projected as the property of Indian Canadian Presbyterian Mission and thereafter the I.P. Mission Trust's property was sold by the accused Solomen to the accused Solomen to the accused Prakash Chand whereas both the trusts are entirely different entities and the I.P. Mission Trust owns the Palm View property. The complainant further prayed that the accused be punished for the offences under Sections 420, 467, 468, 471 and 120-B I.P.C. 3. The complaint was forwarded to the Police Station Abu Parvat for investigation where F.I.R. No. 7/2011 was registered and investigation commenced. The petitioners have now approached this Court seeking quashing of the F.I.R. and subsequent investigation conducted thereupon by way of these two criminal miscellaneous petitions under Section 482 Cr.P.C. 4. Shri M.D. Purohit, Sr. Advocate assisted by Shri Pappu Sangwa, Shri Hemant Jain and Sunil Ranwa, learned counsels for the petitioners vehemently contended before this Court that ex-facie a bare reading of the F.I.R. does not disclose any offence whatsoever against the petitioners. It is urged that the petitioner Solomen Smith (Crl. Misc. Shri M.D. Purohit, Sr. Advocate assisted by Shri Pappu Sangwa, Shri Hemant Jain and Sunil Ranwa, learned counsels for the petitioners vehemently contended before this Court that ex-facie a bare reading of the F.I.R. does not disclose any offence whatsoever against the petitioners. It is urged that the petitioner Solomen Smith (Crl. Misc. Petition No. 281/2012), the Secretary cum Moderator & Administrator of the Indian Canadian Presbyterian Society had the right to administer the property in question, and therefore, he bonafidely acting as the Secretary of the Society has rightfully sold the property to the petitioner Prakash Chand Doshi (Crl. M.P. No. 2661/2012). Learned counsels submit that the title of the property in question was originally of the Irish Presbyterian Mission Trust or the Irish Mission which along with its subordinate bodies were merged in the Canadian Mission was back in the year 1927 and thereafter the property in question is being managed and owned by the Canadian Mission. Certain documents claiming to project the property to be that of Canadian Mission (Indian Canadian Presbyterian Mission) have been filed along with the petitions. Learned counsel thus submit that exfacie the F.I.R. impugned and all the subsequent investigation conducted thereupon deserve to be quashed. Learned counsel for Solomen Smith also contended that a civil suit is already pending in relation to the property in question, and therefore, the F.I.R. impugned is fit to be quashed. 5. Learned counsel appearing for the petitioner Prakash Chand submitted that Prakash Chand is a bonafide purchaser of the property in question for valid consideration, and as such he is not liable to be proceeded with in the matter. Learned counsel further submits that even if the allegations of the complaint are accepted to be true at their highest, then too exfacie the petitioner Prakash Chand cannot be held responsible for the offences which have been set out in the F.I.R. Placing reliance on the decision of the Hon'ble Apex Court in the case Mohammed Ibrahim vs. State of Bihar reported in (2009) 8 SCC 751 = 2010 AIR SCW 405), learned counsel urged that since the petitioner Prakash Chand is a bonafide purchaser of the property in question for valid consideration thus he cannot be held to be liable or responsible for any of the offences for which F.I.R.has been registered. They, therefore, prayed that the F.I.R. impugned is liable to be quashed. 6. They, therefore, prayed that the F.I.R. impugned is liable to be quashed. 6. Per contra Shri Ashok Prajapat, learned Public Prosecutor along with I.O. Saroj Bairwa present in the Court and Shri B.S. Rathore, learned counsel for the respondent No.2 vehemently urged that the material available on record shows that the petitioner Solomen Smith fraudulently projected himself to be authorised to sell the property, by virtue of being the Moderator of Indian Canadian Presbyterian Mission and thereafter conspired with the accused Prakash Chand to sell the property and since the Indian Canadian Presby-terian Mission Trust was having no right or title in the property, obviously the sale is a fraudulent sale and the F.I.R. is not liable to be interfere with. 7. I have given my thoughtful consideration to the arguments advanced at the bar and carefully perused the F.I.R. impugned, case diary and particularly the sale deed executed by the petitioner Solomen Smith claiming himself to be the administrator of the property by virtue of his being Moderator of the Indian Canadian Presbyterian Mission. A civil suit is claimed to have been filed by the petitioner Solomen in the Court of Civil Judge, Abu Parvat claiming the property to be the property of Irish Presbyterian Mission Trust into which the properties of Indian Canadian Presbyterian Mission merged. The petitioner Solomen Smith by virtue of the sale deed has sold the property to Prakash Chand Doshi (Petitioner in Cr.Misc. Petition No. 2661/2011). This Court has to consider as to what would be the offence which the respective petitioners committed by entering into the alleged fraudulent transaction of sale. The Apex Court considering a similar position in the case of Mohammed Ibrahim vs. State of Bihar reported in (2009) 8 SCC 751 = 2010 AIR SCW 405) dealing with similar situation has observed as below:- "The question that therefore, arises for consideration is whether the material on record prima faice constitutes any offences against the accused. The contention of the appellant is that if the allegations made in the complainant and FIR, even if accepted to be true in entirely did not disclose the ingredients of any offence of forgery (Sections 467 and 471) or cheating (Section 420) or insult (Section 504) or wrongful restraint (section 341) or causing hurt (Section 323) and there was no other material to show any offence and therefore, their application ought to have been accepted. 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 vs. State of U.P. ( 2000 (2) SCC 636 ): (2000 AIR SCW 296) and Indian Oil Corporation vs. NEPC India Ltd. ( 2006 (6) SCC 736 ) : (2006 AIR SCW 3830). Let us examine the matter keeping the said principles in mind. Section 467 and 471 of the Penal Code. 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. Sec. 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 as 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. 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- 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 alteration; or Thirdly.- Who dishonestly or fraudulently causes any person to sign, seal, executed 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 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. 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)." The condition precedent for an offence under Section 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 document into three categories. 10.1 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 known 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 by 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. 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'. It therefore remains to be seen whether the claim of the complainant that the execution 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 person executes a document conveying a property describing it as his, there are two possibilities. The first is that he 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 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. 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. Section 420 IPC 13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputa-tion or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). 14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to alleged that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. 14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to alleged that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading represen-tation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code. 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. ..... 18. But a third party who is not the purchaser under the deed may not be able to make such complaint. ..... 18. The averments in the complaint if assumed to be true, do not make out any offence under Secs. 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under Section 341 and causing hurt under Section 323 of IPC." 8. The factual scenario in this case is almost similar. The petitioner Prakash Chand Doshi has purchased the property in question through a registered sale deed executed by the petitioner Solomen Smith. Even if it is assumed that Solomen Smith was having no authority to sell the property in question, then too the question this Court has to consider is as to what offence has been committed by the purchaser Prakash Chand by entering into the said transaction. It is admitted case of the prosecution that no transaction has taken place between the complainant and the purchaser Prakash Chand Doshi. Prakash Chand Doshi has not given any fraudulent inducement etc. to the complainant nor has he by way of any inducement, caused any loss to the complainant by the so called fraudulent transaction. If the validity of the sale transaction becomes doubtful or questionable then the person who stands loose the most is Prakash Chand Doshi and none-else. That apart the act of Prakash Chand Doshi in entering into the transaction of purchase of the property and the execution of the sale deed can also not bring such an act within the definition or preparing a forged document or using a forged document knowing it to be genuine. Prakash Chand has committed no such act which can fall within the definition of preparing a false document. There is no material on the record to assume that Prakash Chand had any knowledge that the seller Solomen Smith was actually having no right or authority to sell the property. In view of the aforesaid discussion the F.I.R. impugned and the investigation being carried out cannot be sustained so far as the petitioner Prakash Chand Doshi is concerned. 9. Now, coming to the case of Solomen Smith. It is observed that the petitioner Solomen Smith has sold the property to Prakash Chand Doshi claiming himself to be Administrator of the Indian Canadian Presbyterian Mission Trust. 9. Now, coming to the case of Solomen Smith. It is observed that the petitioner Solomen Smith has sold the property to Prakash Chand Doshi claiming himself to be Administrator of the Indian Canadian Presbyterian Mission Trust. The facts reveal and demonstrate that the claim of Solomen Smith that he sold the property in his capacity of being authorised to sell the property by virtue of being the administrator of the property as the moderator acting on behalf of Indian Canadian Presbyterian Mission Trust is under the scanner. There are certain documents available on record forming a part of the case diary which are purported to have been issued by the Indian Canadian Presbyterian Mission Trust and from a perusal of the said documents it is revealed that the petitioner Solomen Smith is neither the administrator of the property nor has he been authorised by the Indian Canadian Presbyterian Mission Trust to sell the property. 10. In view of this disputed factual scenario, the very authority of seller i.e. Solomen Smith to sell the property becomes questionable. Therefore, the act of Solomen Smith in selling the property is covered under the definition of making a false documents within the meaning of Clause firstly in Section 464 IPC which is reproduced hereunder:- "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 electronic signature) or any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the (electronic signature). with the intention of causing it to be believed that such document or part of document, electronic record of (electronic signature) was made, signed, sealed, document, 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.." 11. with the intention of causing it to be believed that such document or part of document, electronic record of (electronic signature) was made, signed, sealed, document, 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.." 11. The act of Solomen Smith is also covered under the illustration (b) to Section 464 I.P.C. Therefore, at this stage the contention of the learned counsel for the petitioner Solomen Smith that he has committed the offences of forgery and cheating cannot be accepted on the face value for the purpose of quashing the F.I.R. to his extent. Whether or not the petitioner had been authorised by the Indian Canadian Presbyterian Mission Trust to sell the property or whether the said trust was authorised to sale the property in question is a disputed question of fact which cannot be adjudicated in the instant miscellaneous petition under Section 482 Cr.P.C. for the purpose of quashing the F.I.R. 12. In view of the aforesaid discussion the miscellaneous petition filed by Prakash Chand Doshi (Crl. Misc. Petition No. 2661/2011) is accepted in toto and all the proceedings takes in the F.I.R. impugned are quashed qua the petitioner Prakash Chand Doshi. 13. The miscellaneous petition filed by Solomen Smith fails and is hereby rejected. Solomen Smith is given liberty to file appropriate representation to the I.O. for the purpose of establishing his claim that he had been validity authorised by the Indian Canadian Presbyterian Mission Trust to sell the property. In the event of such representation being made, the I.O. shall take the same into account as per law before filing the result of the investigation.