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Jharkhand High Court · body

2013 DIGILAW 38 (JHR)

Krishna Devi v. State of Jharkhand

2013-01-08

R.R.PRASAD

body2013
ORDER 1. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State. 2. This application has been filed for quashing of the entire criminal proceeding of Kotwali [Ranchi] P.S. Case No. 377 of 2011 [G.R. No. 2128 of 2011] including the order dated 6.1.2012, whereby and whereunder, learned Chief Judicial Magistrate, Ranchi took cognizance of the offences punishable under Sections 420, 468, 471, 477 and 120B of the Indian Penal Code against the petitioners. That order is under-challenge in this application. 3. Before adverting to the submissions advanced on behalf of the petitioner, the case of the informant needs to be taken notice of. 4. It is the case of the informant that the informant's grandfather had purchased certain land from one Shekh Asim Ali, which land was inherited by the father of the informant, in whose house the husband of the petitioner No. 1 as well as the father of the husband of the petitioner No.1 were working, but they in course of time, fraudulently get the sale deed with respect to certain piece of land belonging to the informant executed in their favour by the heirs of the recorded tenant, Shekh Asim Ali. Thereupon a Title Suit was filed by the informant being Title Suit No. 168 of 1994, which got dismissed on 14.3.2000 on account of its non-prosecution. Again a Title Suit being Title Suit No. 135 of 2011 has been filed against the petitioners. Thereupon this F.I.R. has been lodged on the allegation, as stated above, wherein, it has been alleged that the accused person by getting sale deed with respect to land belonging to the informant executed has committed offence of forgery as well as cheating. On the said allegation, the F.I.R. was registered as Kotwali [Ran chi] P.S. Case No. 377 of 2011 under Sections 420, 468 and 471 of the Indian Penal Code. After completion of the investigation, charge-sheet was submitted, upon which cognizance of the offences punishable under Sections 420, 468, 471, 477 and 1208 of the Indian Penal Code was taken against the petitioners vide order dated 6.1.2012. That order is under-challenge in this application. 5. Learned counsel appearing for the petitioners submits that accepting the entire allegation made in the F.I.R. to be true, no case is made out either of the forgery or cheating. 6. That order is under-challenge in this application. 5. Learned counsel appearing for the petitioners submits that accepting the entire allegation made in the F.I.R. to be true, no case is made out either of the forgery or cheating. 6. Learned counsel submits that according to the case of the informant, sale - deed has been executed by the heirs and legal representative of Shekh Asim Ali claiming themselves to be the owner of the land and thereby, in view of the ratio laid down by the Hon'ble Supreme Court in a case of Mohammed Ibrahim and Ors. vs. State of Bihar and Anr. [ (2009)8 SCC 751 ] [: 2009(4) JLJR (SC)75] no case of forgery is made out. 7. Having heard learned counsel appearing for the petitioners and on perusal of the record and also the case law, I do find that 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 (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". 8. 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 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 by 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. The sale deeds executed by the first appellant clearly and obviously do not fall under the second and third categories of "false statement". 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 the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the 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 authorized 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 document", it is not sufficient that a document has been made or executed dishonestly or fraudulently. 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 document", 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. 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 authorized 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." 9. Thus, it has been categorically held that when a document is executed by a person claiming a property though it is not his property bur 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. 10. So far this case is concerned, the heirs of Shekh Asim Ali claiming themselves to be the heirs of Shekh Asim Ali has executed the sale deed and as such, the case of forgery is (sic-not?) made out in view of the ratio laid down by the Hon'ble 'Supreme Court in a case referred to above. 11. So far offence of cheating is concerned, the petitioners cannot be said to have committed any offence of cheating as the petitioners have never been alleged to have induced the informant fraudulently or dishonestly to part with the money and thus, neither the offence of forgery nor cheating is made out. 12. 11. So far offence of cheating is concerned, the petitioners cannot be said to have committed any offence of cheating as the petitioners have never been alleged to have induced the informant fraudulently or dishonestly to part with the money and thus, neither the offence of forgery nor cheating is made out. 12. In such eventuality, the entire criminal proceeding of Kotwali [Ranchi] P.S. Case No. 377 of 2011 [G.R. No. 2128 of 2011] including the order taking cognizance dated 6.1.2012, is hereby, set aside, so far the present petitioners are concerned. 13. In the result, this application stands allowed.