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2014 DIGILAW 519 (JHR)

Amar Lal Mahto v. State of Jharkhand

2014-04-21

R.R.PRASAD

body2014
Judgment Heard learned counsel appearing for the petitioners and learned counsel appearing for the Opp. Party No.2 and learned A.P.P. appearing for the State. 2. This application has been filed for quashing of the order dated 28.05.2013 passed in Cr. Rev. No.68 of 2010 by learned Addl. Sessions Judge-I, Hazaribagh whereby and whereunder learned revisional court dismissed the revision petition filed by the petitioners against the order dated 19.02.2010 passed by learned Judicial Magistrate, 1st Class, Hazaribagh by which learned court below rejected the petition for discharge filed by the petitioners under Section 245 Cr.P.C.. 3. The complaint case bearing Complaint Case No.165 of 2006 was lodged by the complainant/Opp. Party No.2 against these petitioners, alleging therein that the petitioner No.1- Amar Lal Mahto, by claiming himself to be the son of late Jhari Mahto sold the land to the petitioner No.2 on 25.11.2005 by registered sale deed. 4. On such complaint, cognizance of the offences punishable under Sections 420, 467, 468 and 120B of the Indian Penal Code has been taken against these petitioners. 5. Subsequently, a petition for discharge was filed under Section 245 Cr.P.C. on behalf of these petitioners praying therein to discharge them from the case. That petition was rejected vide order dated 19.02.2010. That order was challenged before the revisional court in Cr. Rev. No.68 of 2010. The aforesaid Cr. Revision Application was dismissed vide order dated 28.05.2013, holding therein that the petitioner No.1 by falsely claiming himself to be the son of late Jhari Mahto, has sold the land to the petitioner No.2 and thereby, they have committed offence of forgery and cheating. Being aggrieved with that order, this application has been filed. 6. Mr. P.P.N. Roy, learned senior counsel appearing for the petitioners submits that it is the case of the complainant that the petitioner No.1-Amar Lal Mahto never happens to be the son of late Jhari Mahto but by claiming himself to be the son of late Jhari Mahto, the petitioner No.1 sold a piece of land to the petitioner No.2, but this assertion of the complainant gets falsified from a sale deed executed jointly by these petitioners and the complainant wherein it has been shown that the petitioner No.1 happened to be the son of late Jhari Mahto, which has been annexed as Annexure-2 to this writ application. Not only that, the complainant had brought a Partition Suit before the competent court of law wherein complainant had arrayed the petitioner No.1 as one of the defendants and his father has been shown as late Jhari Mahto. That suit was decreed wherein the decree drawn would go to show that the petitioner No.1 is the son of late Jhari Mahto. Thus, these documents falsify the case of the complainant that the petitioner is not the son of Jhari Mahto and in that view of the matter, no offence is made out if the petitioner No.1 has sold the land to the petitioner No.2 by claiming the land of his own being the son of late Jhari Mahto, in view of the decision rendered in a case of Mohammed Ibrahim and Ors. vs. State of Bihar and Anr. { (2009) 8 SCC 751 }. 7. As against this, learned counsel appearing for the Opp. Party No.2 submits that the sale deed upon which learned counsel appearing for the petitioners has placed his reliance, showing execution of a deed jointly by these petitioners and also by the complainant, has been challenged before the competent court of law vide Title Suit No.190 of 2007. Further submission, which was advanced on behalf of the petitioners is that it is true that in the complaint, the petitioner No.1 was arrayed as defendant No.17 wherein father's name has been shown as late Jhari Mahto, but the finding of the court is otherwise wherein it has been observed that the petitioner No.1 Amar Lal Mahto is never the son of Jhari Mahto and further observation is that the complainant is the sole son of Jhari Mahto and, therefore, in view of the finding given in the judgment, the petitioner No.1 had no authority to sale the land belonging to the complainant to the petitioner No.2, especially, when that finding had never been challenged by these petitioners. Learned counsel further submits that prima facie case is made out against these petitioners and thereby, both the courts below have not committed any illegality in refusing to discharge the petitioners from the case. Learned counsel in this respect places his reliance upon a decision rendered in the case of State of Maharashtra Vs. Priya Sharan Maharaj & Others reported in (1997) 4 SCC 393 . 8. Learned counsel in this respect places his reliance upon a decision rendered in the case of State of Maharashtra Vs. Priya Sharan Maharaj & Others reported in (1997) 4 SCC 393 . 8. As against this, learned counsel appearing for the petitioners submits that the issue, as to whether the petitioner No.1 was the son of Jhari Mahto or not, had never been framed before the court and, thereby if any finding has been given that can be said to be without jurisdiction. 9. Be that as it may, I have never to decide the issue as to whether the petitioner No.1 was the son of Jhari Mahto or not, rather the question is as to whether in the face of the allegation that the petitioner No.1 by claiming himself to be the owner of the land in question sold it to the petitioner No.2, has committed any offence of forgery or cheating. I need not to travel much in order to have answer of it, as the issue has already decided by the Hon'ble Supreme Court in a case of Mohammed Ibrahim (supra) wherein their Lordships, after having regard to the provision 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.” 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 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 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. 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 is attracted.” 11. Thus, it has been categorically held that when a document is 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 does not arise. 12. Further I do find that no offence is made out even under Section 420 of the Indian Penal Code, as the petitioners have not been, cannot be allowed to have defrauded the complainant in any manner. 13. Under the circumstances, both the orders impugned dated 28.05.2013 and 19.02.2010 are hereby set aside. Consequently, the petitioners are discharged from the case. 14. In the result, this application is allowed. Application allowed.