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Jharkhand High Court · body

2013 DIGILAW 886 (JHR)

Raj Kumar Singh v. State of Jharkhand

2013-07-22

R.R.PRASAD

body2013
ORDER Heard learned counsel appearing for the petitioners, learned counsel for the State and the learned counsel appearing for O.P. No. 2. 2. This application has been filed for quashing of the first information report of Bariatu (Gonda) P.S. Case No. 55 of 2012 (G.R. Case No. 1292 of 2012), registered under Sections 420, 406, 467, 468, 120 B of the Indian Penal Code. 3. Before adverting to the submissions advanced on behalf of the parties, the case of the informant needs to be taken notice of. 4. It is the case of the informant that when he came across with the petitioner no. 1 Dr. Raj Kumar Singh, said Raj Kumar singh, by producing a deed of agreement, executed by the land owner, expressed his desire to sell that piece of land. Believing the document to be true the informant agreed to purchase it. A sum of Rs. 13,21,000/was given as part consideration and rest of the amount, as per the agreement, was to be paid at the time of execution of the sale deed. Meanwhile, the land owner executed a deed of power of attorney in favour of Surya Bhusan (petitioner no. 2), the son of petitioner no. 1, who sold that piece of land to different persons. Thereafter, when the informant requested the petitioners to return the money they refused to return the money and, thereby, it has been alleged that the accused persons/petitioners committed offence of forgery and cheating. 5. Mr. Nilesh Kumar, Learned counsel appearing for the petitioners submits that accepting the entire allegations to be true, no offence of forgery or misappropriation is made out as the petitioners have never been alleged to have defrauded the informant in any manner. 6. As against this, learned counsel appearing for O.P. No. 2, submits that according to the case of the informant, petitioner no. 1 by showing a deed of agreement, claimed the land to be his own but, in fact, the land never belongs to petitioner no. 1, which would be evident from the fact that the original land owner had executed the power of attorney in favour of petitioner no. 2, who happens to be the son of petitioner no. 1 and this fact itself indicates that the land never belongs to petitioner no.1, still he entered into an agreement with the informant and, thereby, he certainly committed offence of cheating and forgery. 7. 2, who happens to be the son of petitioner no. 1 and this fact itself indicates that the land never belongs to petitioner no.1, still he entered into an agreement with the informant and, thereby, he certainly committed offence of cheating and forgery. 7. In the context of the submissions, advanced on behalf of the parties, it is to be considered as to whether the allegation made in the complaint, does constitute offence of cheating and forgery or not? 8. The offence of cheating has been defined under Section 415 of the Indian Penal Code, 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 person 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. 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 of a person by deceiving him. (2) (a) the person so deceived should be induced to deliver any property to any person, 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. Thus, from the first element necessary for constituting the offence of cheating is a deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. It is the case of the informant that when petitioner no. 1 claimed the land to be his own on the basis of a deed of agreement, the informant agreed to purchase that piece of land, which was the subject matter of the deed of agreement, though now the argument is being advanced that the petitioner no. It is the case of the informant that when petitioner no. 1 claimed the land to be his own on the basis of a deed of agreement, the informant agreed to purchase that piece of land, which was the subject matter of the deed of agreement, though now the argument is being advanced that the petitioner no. 1 was never the absolute owner of the land, but from the statements made in the first information report, it does appear that when the petitioners claimed the land in question, on the basis of the said deed of agreement, the informant on being satisfied with the deed, seems to have entered into an agreement and, thereby, it cannot be a case of deception as the petitioners, in the fact as stated above, can never be said to have induced the informant fraudulently or dishonestly to enter into an agreement and to pay money in part and, as such, the case never happens to be a case of criminal breach of trust, rather it seems to be a case of breach of agreement and under such circumstances, it was stated that even a money suit has been filed by the informant. 11. Now, coming to the other aspect of the matter. It is to be considered upon the facts, stated above as to whether offence of forgery attracted. Straight way, I may refer to a decision rendered in a case of “Mohammed Ibrahim and Ors. vs. State of Bihar and Anr. { (2009) 8 SCC 751 } = {2009 (4) JLJR (SC) 75}”, wherein their Lordships after having regard to the provision as contained in Section 470 of the I.P.C. as well as other provisions relating to forgery did observe 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.” 12. 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.” 12. 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 some one 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 fist 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. 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 us 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.” 13. Thus, it has been categorically held that when a document has been 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 IPC does not arise. 14. Under the circumstances, entire criminal proceeding of Bariatu (Gonda) P.S. Case No. 55 of 2012 (G.R. Case No. 1292 of 2012), is hereby quashed. 15. 14. Under the circumstances, entire criminal proceeding of Bariatu (Gonda) P.S. Case No. 55 of 2012 (G.R. Case No. 1292 of 2012), is hereby quashed. 15. In the result, this application stands allowed.