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2012 DIGILAW 234 (JHR)

Chandra Kala Devi v. State of Jharkhand

2012-02-15

R.R.PRASAD

body2012
ORDER Heard the parties. 2. This application is directed against the order dated 19.4.2011 passed by the then Judicial Magistrate, Dhanbad in Complaint Case No. 1470 of 2010, whereby and whereunder cognizance of the offences under Sections 467, 468, 469, 471, 420 and 120B of Indian Penal Code has been taken against the petitioners. 3. Before adverting to the submission advanced on behalf of the parties, case of the complainant needs to be taken notice of which is as follows:- One Shakuntala Sharma wife of Sheo Kumar Sharma, during her lifetime had purchased the property, in question, in the year 1980 through a registered sale-deed. Said Shakuntala Sharma and her husband had let out that house to different tenants on monthly rent. When Sheo Kumar Sharma and his wife Shakuntala Sharma died leaving behind Smt. Shakti Sharma as sole heir, Smt. Shakti Sharma let out said house to the complainant, in whose favour a power of attorney has been executed, by her and also to petitioner no. 2-Sidh Nath Singh on monthly rental. However, said Sidh Nath Singh in course of time when asked the complainant to vacate the said house on the plea that he had purchased that house, the complainant informed about it to Smt. Shakti Sharma, the owner and the land lady of that house, who has been residing at Asansole. On making inquiry, it was found that one Kailash Kumar Sharma son of late Tula Ram Sharma, has sold the house, in question, for Rs. 8 lakhs to petitioner no.1-Chandra Kala Devi (wife of petitioner no. 2) through a sale-deed in which Kunwar Singh-petitioner no. 3 has put himself as the identifier. When Smt. Shakti Sharma found that the house in question, to which she was the owner, has been fraudulently sold by impostor-Kailash Kumar Sharma, she executed a general power of attorney in favour of complainant-Shambhu Nath Singh to lodge a complaint. Accordingly, a complaint was lodged which was registered as Complaint Case No. 1470 of 2010. After holding inquiry, the court below took cognizance of the offences under Sections 467, 468, 469, 471, 420 and 120B of Indian Penal Code against the petitioners which order is under challenge in this application. 4. Mr. Accordingly, a complaint was lodged which was registered as Complaint Case No. 1470 of 2010. After holding inquiry, the court below took cognizance of the offences under Sections 467, 468, 469, 471, 420 and 120B of Indian Penal Code against the petitioners which order is under challenge in this application. 4. Mr. Indrajit Sinha, learned counsel appearing for the petitioners, submits that there has been nothing on the record to show that Smt. Shakti Sharma is the daughter of late Sheo Kumar Sharma and late Shakuntala Sharma, whereas Kailash Kumar Sharma happened to be the brother of Sheo Kumar Sharma and he on the death of Sheo Kumar Sharma and his wife inherited the property and sold it to petitioner no.1-Chandra Kala Devi for a consideration. On purchasing the house, petitioner no. 1 came to rightful possession of the same and let out the said house on rent to opposite party no. 2-complainant and one Krishna Kumar Singh who paid the rent but thereafter stopped making payment of the rent. 5. It was further submitted that in order to grab the property, Smt. Shakti Sharma had declared herself to be the adopted daughter of late Shakuntala Sharma and late Sheo Kumar Sharma, who executed the power of attorney in favour of the complainant and the complainant lodged a complaint wherein absolutely a false statement has been made that the property belongs to Smt. Shakti Sharma. It was also stated that the Circle Officer, Jharia issued a genealogical chart on the basis of the report of Halka Karmchari and the In-charge Circle Inspector, wherein it has been shown that Kailash Kumar Sharma and late Sheo Kumar Sharma are the sons of late Tula Ram Sharma. Thus, it was submitted that after death of Sheo Kumar Sharma when Kailash Kumar Sharma inherited the property, he sold it to petitioner nos. 1 and 2 and thereby the petitioners can never be said to have committed any offence. Even if it is found that Kailash Kumar Sham a has not inherited the property in question and still he has sold the property in question, he cannot be said to have committed offence of cheating and forgery. 6. 1 and 2 and thereby the petitioners can never be said to have committed any offence. Even if it is found that Kailash Kumar Sham a has not inherited the property in question and still he has sold the property in question, he cannot be said to have committed offence of cheating and forgery. 6. In support of the submission, learned counsel for the petitioner referred to a decision rendered in a case of Mohammed Ibrahim and Others vs. State of Bihar and Another (2009)8 S.C.C. 751 [: 2009(4) PLJR (SC)99], holding therein that mere execution of a sale deed by claiming that property being executant's property, did not amount to commission of offences under Sections 467 and 471 even if title to property did not vest in the executant. 7. As against this, Mr. Verma, learned counsel appearing for the opposite party No.2, submits that the property, in question, had been purchased by late Shakuntala Sharma mother of Smt. Shakti Sharma. After death of Shakuntala Sharma, Smt. Shakti Sharma, being sole daughter of Shakuntala Sharma and Sheo Kumar Sharma; inherited the said property and that Sheo Kumar Sharma was the son of late Mukha Maharaj Sharma which would be evident from the notice issued in a case instituted under Section 107 of Cr.P.C. as also from his driving license. 8. It was further submitted that since Smt. Shakti Sharma was residing at Asansole, she entrusted the complainant-opposite party no. 2 to look after the said property and to collect rent and, accordingly, he was collecting rent from petitioner no. 2. After death of Shakuntala Sharma, petitioner no. 2-Sidh Nath Singh and his wife-Chandra Kala Devi (petitioner no. 8. It was further submitted that since Smt. Shakti Sharma was residing at Asansole, she entrusted the complainant-opposite party no. 2 to look after the said property and to collect rent and, accordingly, he was collecting rent from petitioner no. 2. After death of Shakuntala Sharma, petitioner no. 2-Sidh Nath Singh and his wife-Chandra Kala Devi (petitioner no. 1) in order to grab the property in question conspired with one Kailash Kumar Sharma son of late Tula Ram Sharma, and in furtherance of the conspiracy, said Kailash Kumar Sharma executed a deed of sale claiming to be the full brother of Sheo Kumar Sharma but he cannot be said to be the brother of Sheo Kumar Sharma, as the father's name of Sheo Kumar Sharma was late Mukha Maharaj Sharma, whereas Kailash Kumar Sharma has disclosed his father's name as late Tula Ram Sharma and, therefore, even if it is assumed that Kailash Kumar Sharma was the brother of Sheo Kumar Sharma, he, who had executed the deed of sale, was never the real Kailash Kumar Sharma, son of late Mukha Maharaj Sharma, and as such, he can be said to be the impostor, who has executed a deed of sale and hence, he has committed offences, as have been alleged. 9. Having heard learned counsel for the parties and on perusal of the records, it does appear that on one hand, Smt. Shakti Sharma has been claiming to be the rightful owner of the property inherited from her parents-late Shakuntala Sharma and late Sheo Kumar Sharma, on the other hand, the stand of the petitioners is that one Kailash Kumar Sharma was the brother of late Sheo Kumar Sharma but according to the complainant, father's name of Sheo Kumar Sharma was late Mukha Maharaj Sharma, whereas Kailash Kumar Sharma has claimed to be the son of late Tula Ram Sharma. Under the circumstances, what has emerged out at this stage is that Kailash Kumar Sharma is different person than Kailash Kumar Sharma son of late Mukha Maharaj Sharmq and under the situation, decision relied upon by learned counsel for the petitioners is not applicable. In that decision, it has been held that mere execution of a sale deed by claiming that property being executant's property, did not amount to commission of offences under Sections 467 and 471. In that decision, it has been held that mere execution of a sale deed by claiming that property being executant's property, did not amount to commission of offences under Sections 467 and 471. Their Lordships while holding so were pleased to observe in Paragraphs-16 and 17 of the said decision, which is 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 at 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. 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." 10. Here the instant case, which has emerged out, is that the father's name of Sheo Kumar Sharma was late Mukha Maharaj Sharma, whereas father's name, as claimed by Kailash Kumar Sharma, is late Tula Ram Sharma. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted." 10. Here the instant case, which has emerged out, is that the father's name of Sheo Kumar Sharma was late Mukha Maharaj Sharma, whereas father's name, as claimed by Kailash Kumar Sharma, is late Tula Ram Sharma. Still by claiming himself to be the brother of Sheo Kumar Sharma executed the sale deed fraudulently and dishonestly and under the circumstances, the case seems to be as that of impersonation and as such, the case of forgery is made out in view of the decision referred to above. 11. Under these situations, I do not find any illegality in the impugned order and hence this application stands dismissed. 12. However, before parting with this order, it be recorded that any finding, given for the purpose of disposal of the case, will not be prejudicial to the case of the parties.