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2013 DIGILAW 1072 (JHR)

George Mustafa Khan v. State of Jharkhand

2013-09-18

R.R.PRASAD

body2013
ORDER 1. Both the applications arising out of the same case were heard together and are being disposed of by this common order. 2. Heard learned counsel appearing for the petitioners and also learned counsel appearing for the opposite party No.2 as well as learned counsel appearing for the State. 3. These applications have been filed for quashing of the order dated 10.4.2013 passed by the Judicial Magistrate, Ranchi whereby and whereunder a complaint bearing complaint Case No. 597 of 2013 was sent before the concerned police station for its institution and investigation, upon which FIR was lodged as Nagri P.S. Case No. 58 of 2013 under Sections 419, 420, 467, 468, 471, 472, 120-B of the Indian Penal Code. 4. The case of the opposite party No.2 as has been made out in the complaint, in brief, is that complainant's wife daughter and sons had purchased the land appertaining to Plot Nos. 492 (part), 488 (part) and 533 (part) under khata No.1, thana No.133 measuring total area of 12 acres situated village Daladili, P.S. Ratu, District Ranchi. The said lands on being purchased were mutated in their names and they are coming in peaceful possession over the same and are paying rent to the State. 5. These facts were within the knowledge of one George Mustafa, petitioner No.1 in Cr. M.P. No. 1303 of 2013. In spite of that, he executed a power of attorney in favour of Sanjay Kumar, petitioner No.2 in Cr. M.P. No. 1303 of 2013 to sell the aforesaid lands claiming those lands to be his land. 6. Thereupon Sanjay Kumar on the basis of power of attorney executed on 7.12.2011 by George Mustafa Khan executed deed of gifts in favour of Lal Dharmraj Nath Shahdeo (accused No.3 petitioner No.1 in Cr. M.P. No. 1246 of 2013) and Kamal Bhushan (accused No.4 petitioner No.2 in Cr. M.P. No. 1246 of 2013). 7. It has been further alleged that though George Mustafa Khan (accused No.1) claimed that the aforesaid land as his own, but it never belonged to him of which he was quite aware as there were several rounds of litigation over the ownership of that land. 8. M.P. No. 1246 of 2013). 7. It has been further alleged that though George Mustafa Khan (accused No.1) claimed that the aforesaid land as his own, but it never belonged to him of which he was quite aware as there were several rounds of litigation over the ownership of that land. 8. On such allegation, a complaint was lodged which upon being registered as Complaint Case No. 597 of 2013 was sent before the concerned police station under Section 156(3) of the Code of Criminal Procedure for its institution and investigation. 9. Being aggrieved with that order, these applications have been filed for quashing of the FIR which has been registered on the basis of said complaint. 10. Mr. I, Sinha, learned counsel appearing for the petitioners submits that accepting the allegation that George Mustafa Khan (accused No.1) without having any right, title and interest over the land executed power of attorney in favour of Sanjay Kumar (accused No.2) who, in turn, executed deed of gifts in favour of Lal Dharmraj Nath Shahdeo and Kamal Bhushan did not commit any offence either of forgery or cheating as executing a sale deed or power of attorney by a person not having any authority i.e. right, title and interest over the land, subject matter of transfer does not constitute offence of forgery or cheating so far as the person to whom the land was not sold. 11. In this context, learned counsel has referred to paragraphs 16 and 23 of a decision rendered in a case of Mohammed Ibrahim and others vs. State of Bihar and another, (2009) 8 SCC 751 : 2009 (4) East Cr C 6 (SC). 12. As against this, Mr. P.P.N. Rai, learned senior counsel appearing for the opposite party No.2 submits that the fact of the case is not as simple as has been put forth rather certain facts are there which need to be stated here. 13. In this connection, it was submitted that one Amina Khan had inherited the land subject matter of the case through family settlement, in the year 1999. Thereafter Amina Khan sold the said land to the wife, sons and daughter of the complainant who filed applications for mutating the lands in their favour. It was mutated in their names. They started paying rent. Thereafter Amina Khan sold the said land to the wife, sons and daughter of the complainant who filed applications for mutating the lands in their favour. It was mutated in their names. They started paying rent. In spite of that, threat of dispossession was when extended to the complainant, the complainant filed a writ petition, vide W.P.(Cr.) No. 417 of 2010 which was permitted to be withdrawn with a liberty to the complainant to approach the Superintendent of Police for putting forth his grievance. Pursuant to that order passed by this Court, the complainant approached to the Superintendent of Police, Ranchi, who referred the matter before the Sub-divisional Officer and the Sub-divisional Officer passed an order for deputation of police force over the land in question. 14. Being aggrieved with that order, Lal Dharmraj Nath Shahdeo (accused No.3 petitioner No.1 in Cr. M.P. No. 1246 of 2013) and Kamal Bhushan (accused No.4 petitioner No.2 in Cr. M.P No. 1246 of 2013) did approach to this Court whereby they challenged that order of deputation of police force. This Court after hearing both the parties dismissed this application on account of the fact that civil suit was pending. In spite of knowing all these facts, George Mustafa Khan executed power of attorney in favour of Sanjay Kumar on 7.12.2011 giving authority to sell or to transfer the land in question to others. Accordingly, on 12.12.2011 deed of gifts were executed by Sanjay Kumar in favour of Lal Dharmraj Nath Shahdeo and Kamal Bhushan. 15. It was further pointed out that Lal Dharmraj Nath Shahdeo moved to the Civil Court and filed a title suit wherein an injunction petition was filed for restraining the complainant from interfering with possession of the plaintiffs. That application was rejected. In spite of that, accused persons started putting obstruction over the rightful exercise of right, title and interest over the land and thereby the complainant had to file a complaint petition alleging therein that all the accused persons committed offence of forgery. The matter is under investigation and therefore, the Court in exercise of power under Section 482 of the Code of Criminal Procedure should not interfere with the investigation of the case by quashing the FIR. 16. The matter is under investigation and therefore, the Court in exercise of power under Section 482 of the Code of Criminal Procedure should not interfere with the investigation of the case by quashing the FIR. 16. Thus, the stand of the petitioners is that execution of either power of attorney or gift deeds never constitute of offence of forgery or cheating whereas the stand of other side is that the accused persons having knowledge that the land never belonged to George Mustafa, still executed power of attorney in favour of Sanjay Kumar who, in turn, executed deed of gifts to other accused persons and thereby they committed offence of forgery and cheating. 17. In order to determine the issue, I would straightway refer to paragraphs 16 and 23 of the decision rendered in a case of Mohammed Ibrahim and others vs. State of Bihar and another, 2009 (4) East Cr C 6 (SC) which reads as follows – (East Cr C Paras 12 and 15) "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 authorized or empowered by the owner, to execute the deed of 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." "23. 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. 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. Their Lordships have made it clear that when a person executes a document conveying a property describing it as his, there are two possibilities. (i) That he bona-fide believes that the property actually belongs to him (ii) That he may be dishonestly and fraudulently claiming it to be his even though he knows that it is not his property. 19. But to make out a case of forgery, it is not sufficient that a document has been made or executed dishonestly or fraudulently, rather than it is further required that it should have been made with the intention of causing it to be believed that such document is made or executed by, of by the authority of a person, by whom or by whose authority he knows that it was not made or executed. 20. In the instant case, George Mustafa Khan, accused No.1 in spite of knowing all the facts that the complainants' wife, daughter and sons had purchased the property from Amina Khan, who, according to the complainant, is the first cousin of accused No.1, executed power of attorney to be used as genuine to make a fraudulent and illegal claim over the land in question. 21. At this stage, a case of C.P. Subhash vs. Inspector of Police, Chennai and others, 2013 (3) East Cr C 58 (SC) needs to be referred to whereby the Hon'ble Supreme Court taking into account the facts and circumstances has observed as follows:- "Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleges that the documents have been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant. The following passage from the complaint is relevant in this regard." "Thus evidently these two sale-deeds being produced by GWL i.e. 1551 of 1922 dated 10th March, 1922 and 1575 of 1922 dated 27th June, 1922 are forged and fabricated and after making the false documents they were used as genuine to make fraudulent and illegal claim over our lands and go grab them. The representatives of GWL Properties with dishonest motive of grabbing our lands having indulged in committing forgery and fabrication of documents and with the aid of the forged documents are constantly attempting to criminally trespass into our lawful possessed lands and have been threatening and intimidating the staffs of our company in an illegal manner endangering life and damaging the land. The representatives of GWL properties also have been making false statements to the Government Revenue Authorities by producing these forged and fabricated documents with dishonest intention to enter their name in the Government Records. The present Director-in-charge and responsible for the affairs of the GWL Properties Limited is Mrs. V.M. Chhabria and all the above mentioned acts and commission of offences have been committed with the knowledge of the Directors of GWL Properties Ltd. and connivance for which they are liable. Mr. A.V.L. Ramprasad Varma representing M/s. GWL Properties Limited has registered a civil suit in the District Court, Chengalpet using the forged documents. Mr. Satish, Manager (Legal), Mr. Shanmuga Sundram, Senior Manager, (Administration), have assisted in fabricating the forged documents and used the same to get patta from Tahsildar, Tambaram, thus cheating the Government Officials. Hence, we request you to register the complaint and to investigate and take action in accordance with law as against he said company M/s. GWL Property Limited represented by Mr. Satish, Manager (Legal) Mr. Shanmuga Sundaram, Senior Manager (Administration) A.V.L. Ramprasad Varma, Directors, and their accomplice who have connived and indulged in fabricating and forging documents for the purpose of illegally grabbing out lands and for all other offences committed by them." 22. Satish, Manager (Legal) Mr. Shanmuga Sundaram, Senior Manager (Administration) A.V.L. Ramprasad Varma, Directors, and their accomplice who have connived and indulged in fabricating and forging documents for the purpose of illegally grabbing out lands and for all other offences committed by them." 22. Here, it is the case of the complainant that they came to know that the accused persons having conspired among themselves brought out a deed of power of attorney. It is not known as to on what basis either on the basis or any document which may be forged or on any other basis, claim of the ownership has been laid by the petitioner George Mustafa. This fact is quite hazy. Therefore, it would not be proper and appropriate at this stage to give any finding as to whether case of forgery is made out or not. 23. In this regard, I may refer to a case of State of Madhya Pradesh vs. Awadh Kishore Gupta, (2004) 1 SCC 691 , wherein Their Lordships have observed as follows:- "The power possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima-facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint exercise of the inherent powers to quash the proceedings is called for only a case where the complaint does not disclose any offence or is frivolous vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code." 24. Under the circumstances, when the matter is under investigation, the FIR does not warrant to be quashed. 25. Accordingly, both the applications are dismissed. 26. Notwithstanding the fact that these cases got dismissed, the petitioners would be at liberty to raise all the points which have been raised in this application at an appropriate stage. Application dismissed.