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Madhya Pradesh High Court · body

2014 DIGILAW 1145 (MP)

Hetram v. State of M. P.

2014-09-15

M.K.MUDGAL

body2014
JUDGMENT M.K. Mudgal, J. With the consent of parties, the matter is being finally heard and the record perused. 1. The petitioner has filed this criminal revision under section 397 read with section 401 of the Cr.P.C being aggrieved by the order dated 20.06.2011 passed by the Court of II Additional Sessions Judge, Shivpuri in Sessions Trial No. 92/2011, whereby, the non-applicants No. 2 to 4/respondents No. 2 to 4 have been discharged from the offence under Sections 420, 467, 468, 471 & 120-B of IPC. 2. The facts, in brief are that a criminal complaint was filed by petitioner-Hetram S/o Kallu Kushwah alleging that he was in possession of house No. 159 situated in ward No. 29, Peepal Wala Kua Shashipura, Mansha Kachi- Shivpuri, which was obtained by him after the death of his father, who had died on 21.02.1998, thereafter, tax of Rs. 1500/- was paid by him on 07.04.2004. However, the 2 non-applicant No. 2- Vijay Singh in connivance with Municipal Corporation, got his name mutated pertaining to a patore and a room in his name. The accused Vijay Singh got his name entered in the record of Municipal Corporation Shivpuri by fabricating a will and showing himself to be adopted son of deceased Balabai and managed to receive the possession of the disputed patore and room which was recorded in the name of father of the complainant and which the respondent no.2 Vijay Singh got mutated in his name illegally and malafidely. Even NOC was obtained from the Municipal Corporation in the name of Vijay Singh pertaining to house No. 1528 measuring 690 sq.ft. Situated in ward No. 29 on 22.11.2006, inspite of the fact that the name of Balabai was not existing in municipal corporation record, thereafter, Vijay Singh respondent No. 2 executed a sale deed in favour of Dilkhan-respondent No. 3 inspite of the fact that the petitioner and his family members were residing in the same, since the life time of his father. All the accused fabricated forged documents in connivance with each other and a sale deed was executed on 16.3.2007 pertaining to 1000 sq.ft. by Vijay Singh in the favour of Dilkhan Singh. 3. All the accused fabricated forged documents in connivance with each other and a sale deed was executed on 16.3.2007 pertaining to 1000 sq.ft. by Vijay Singh in the favour of Dilkhan Singh. 3. Learned counsel for the petitioner submits that the learned trial court as well as revisional court have 3 committed error in dismissing the criminal complaint filed by the petitioner/complainant as the disputed property which was sold by the respondent No. 2 Vijay Singh to the respondent No. 3 Dilkhan Singh was of the ownership of the petitioner as he succeeded the said property from his father as his legal heirs just because the respondent No. 2 got his name mutated on the basis of fake and forged will alleged to be executed by Bala Bai mother of the petitioner in his favour, he does not acquire any title to the property, therefore, the sale deed executed by the respondent No. 2 in favour of respondent No. 3 is to be treated as fake and forged. Hence, cognizance against the respondents No. 2 & 3 ought to have been taken by the trial court. On the aforesaid grounds, learned counsel for the petitioner has prayed for setting-aside both the orders as stated earlier and the trial court be directed for taking cognizance against the respondents No. 2 & 3 for the offences stated in the complaint. 4. Counsel for the respondents No. 2 & 3 opposing the submissions have submitted that it is a dispute of civil nature. Neither the fake and forged documents was prepared by the respondent No. 2 nor the alleged document was executed in the name of petitioner by the respondent No. 2 in favour of the respondent No. 3. If the respondent 4 No. 2 Vijay Singh has no title or interest in the property, the petitioner may file civil suit for challenging the legality and validity of the sale deed. Nevertheless, no offence is made out in this case as a result the orders passed by both the learned courts below are just and appropriate. Hence, no interference is required in them. 5. Arguments were considered and record was perused. 6. Nevertheless, no offence is made out in this case as a result the orders passed by both the learned courts below are just and appropriate. Hence, no interference is required in them. 5. Arguments were considered and record was perused. 6. On perusal of it, it is evident that Badami Lal Sharma has also filed a civil suit bearing No. 116A/2009 on 28.10.2009 to the court of Civil Judge, Class II, Shivpuri for declaration of title, permanent injunction and sale deed dated 16.3.2007 executed by the respondent No. 2 in favour of respondent No. 3 also be declared as null and void regarding the disputed property. 7. An application filed by Badami Lal Sharma under Order 39 Rule 1 & 2 of CPC for temporary injunction was allowed vide order dated 3.9.2010. The respondents No. 2 & 3 being aggrieved by the aforesaid order filed an appeal before the court of District Judge, Shvipuri as Misc. Civil Appeal No. 25/2010, which was allowed vide order dated 21.12.2010 and order passed by the trial court was set- aside. Thereafter, the petitioner filed criminal complaint before the court of Chief Judicial Magistrate, Shvipuri. Further, it is evident from the record that the name of the 5 purchaser-respondent No. 3 has been entered in the Municipal record. 8. Indisputably, the alleged fake and forged sale deed was not executed by the respondent No. 2 in favour of respondent No. 3. The alleged forged will has not been produced on record for perusal of the court. 9. In the aforesaid circumstances, where the question of title is involved between the parties, the registered sale deed executed by the respondent No. 2 in favour of respondent No. 3 cannot be treated to be fake and forged. 10. In the case of Mohammed Ibrahim & Ors. v. State of Bihar & Another, (2009) 8 SCC 751 , the Hon'ble Apex Court has held as under:- "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 it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide 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. 20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege 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. 21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation 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 7 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. 22. 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. 11. Considering the aforesaid law laid down by the Hon'ble Apex Court and in the facts and circumstances of the case, it is observed that no offences under Sections 420, 467, 468, 471 & 120-B of IPC are made out for taking cognizance against the respondents No. 2 & 3 as the dispute is purely civil in nature. Hence, it is concluded that the orders passed by the learned courts below are justified and no interference is required in them. Therefore, this petition filed by the petitioner being devoid of merit is hereby dismissed.