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2022 DIGILAW 42 (UTT)

Balvinderjeet Sayal v. State of Uttarakhand

2022-03-10

RAVINDRA MAITHANI

body2022
JUDGMENT : Challenge in this petition is made to cognizance order dated 12.03.2018 and charge sheet dated 13.12.2017. These proceedings relates to FIR No. 129 of 2016, dated 11.08.2016, under Section 420, 467, 468, 471, 120B IPC, Police Station Prem Nagar, District Dehradun. 2. Facts necessary to appreciate the controversy briefly stated are as follows:- The respondent no.2 (the informant) lodged an FIR on 11.08.2018 against Kundan Singh and Balbir Singh. According to it, the informant had purchased certain property on 28.08.2001 from Kundan Singh and Balbir Singh, but the same property was again sold by Rakesh Kumar Agarwal and Smt. Vineeta Agarwal to some other person on 28.01.2002. It is this FIR, in which, after investigation, charge sheet was earlier filed against coaccused Kundan Singh and Bilas Dev. The named accused Balbir Singh had died. The matter was further investigated and separate charge sheet has been filed against the petitioner, on which, on 12.03.2018 cognizance has been taken. It is impugned herein. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner would submit that no offences are made out against the petitioner. It is argued that the informant was neither cheated nor any forgery was committed in the matter. Therefore, offences under Sections 420, 467, 468, 471 and 120B IPC are not made out and the petition deserves to be allowed. 5. On behalf of the informant, it is argued that the informant had purchased the property in question on 29.08.2001 from its lawful owners Kundan Singh and Balbir Singh. But, the same property was subsequently sold by Kundan Singh and the petitioner (the petitioner was a nominee) to a Jitendra Mathur on 10.01.2002. It is argued that it shall be presumed that the petitioner had notice of earlier sale transaction dated 29.08.2001, in favour of the informant. Learned counsel would submit that the word “notice” has been defined under Section 3 of the Transfer of Property Act, 1882 (for short, “the T.P. Act”). The sale deed in favour of the petitioner was registered on 29.08.2001 and from that date, it shall be presumed that the petitioner had notice of the sale transaction. Notice as defined under Section 3 of the T.P. Act is as hereunder:- “3. Interpretation-clause.—In this Act, unless there is something repugnant in the subject or context,— ................................................................................ .......................................................................................... ......................................................................................... The sale deed in favour of the petitioner was registered on 29.08.2001 and from that date, it shall be presumed that the petitioner had notice of the sale transaction. Notice as defined under Section 3 of the T.P. Act is as hereunder:- “3. Interpretation-clause.—In this Act, unless there is something repugnant in the subject or context,— ................................................................................ .......................................................................................... ......................................................................................... “a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I.—Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under subsection (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that— (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian. Registration Act, 1908 (16 of 1908), and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.” 6. Learned counsel for the informant also has raised the following point:- (i) Bilas Dev had executed a sale deed on 28.01.2002 on the basis of a power of attorney dated 06.09.1996. It is argued that there was no power of attorney dated 06.09.1996 instead there was a power of attorney dated 30.08.1997, in which the petitioner was a witness. 7. How the petitioner is concerned with the power of attorney executed in favour of Bilas Dev by virtue of which Bilas Dev, according to the learned counsel for the informant had sold some property? It is not even shown to this Court. The sale deed dated 28.01.2002 has been filed as Annexure 4 by the informant himself. It makes reference to the power of attorney dated 09.10.1996 in favour of Bilas Dev. But this power of attorney is not on record. Even, it is argued that it was never executed. If it is so, where is the question of complicity of the petitioner. Even for the sake of argument, it is accepted that in any power of attorney executed on 30.08.1997, the petitioner was a witness, how is the offence made out, merely on that basis? Therefore, argument on that aspect has not force. 8. On behalf of the State it is argued that a property already sold to the petitioner was subsequently sold to some other person by the petitioner and Kundan Singh. 9. Essentially, it is the case against the petitioner that the property-in-question was sold to the informant by Kundan Singh and Balbir Singh on 29.08.2001, but thereafter, the same property was sold by the petitioner, as a nominee, and Kundan Singh to Jitendra Mathur on 10.01.2002. 10. 9. Essentially, it is the case against the petitioner that the property-in-question was sold to the informant by Kundan Singh and Balbir Singh on 29.08.2001, but thereafter, the same property was sold by the petitioner, as a nominee, and Kundan Singh to Jitendra Mathur on 10.01.2002. 10. The sale deed dated 29.08.2001 is Annexure 2 to the counter affidavit filed by the informant. According to it, Balbir Singh and Kundan Singh had sold certain property to the informant on that date. The sale deed dated 10.01.2002 is Annexure 3 to the writ petition. According to it, the property-in-question was purchased by the petitioner and the petitioner was given possession of it. Based on it, the petitioner and Kundan Singh sold the property to Jitendra Mathur. 11. Learned counsel for the petitioner would submit that the word “notice” as defined under the T.P. Act cannot be taken for assistance, in the offences under IPC, because it is argued that it is in the interpretation clause of the T.P. Act and it may help to interpret different provisions of the T.P. Act wherein the word “notice” occurs. 12. It is true that interpretation clause in any statute defines the word as used in the particular enactment. But, under Section 3 of the T.P. Act, the explanation to the definition of notice makes it abundantly clear that it is with regard to notice of registration of the sale deed to the person acquiring such property. Therefore, it is not the question of using the interpretation clause of T.P. Act in the IPC, instead reading the definition of notice in the context of sale transactions, which are in question in the instant case. In view of this definition of “notice” and its explanation as given under Section 3 of the T.P. Act, any person acquiring the property in dispute post 29.08.2001, when the property was transferred and registered in the name of informant shall be deemed to have notice of such transaction from the date of registration of sale deed i.e.29.08.2001. 13. The sale deed dated 10.01.2002 records that the petitioner had already paid money for the property in dispute and he had obtained possession of it. According to it, the sale deed was executed in the name of the person, as nominated by the petitioner. There may be various reasons to do such kind of transactions. 13. The sale deed dated 10.01.2002 records that the petitioner had already paid money for the property in dispute and he had obtained possession of it. According to it, the sale deed was executed in the name of the person, as nominated by the petitioner. There may be various reasons to do such kind of transactions. This Court avoids to go into that aspect of the matter. 14. The petitioner shall be deemed to have notice of the sale deed registered on 29.08.2001 in favour of the informant by Kundan Singh and Balbir Singh. 15. Now, a short question that requires deliberation is that if Kundan Singh and Balbir Singh had already sold the property in question to the informant and the same property was subsequently sold by the petitioner and Kundan Singh to Jitendra Mathur on 10.01.2002, what offences are made out? 16. It is also an admitted case that the informant did not file any suit for cancellation of sale deed dated 10.01.2002. In fact, it is admitted position that the informant had filed OS No. 45 of 2014 for cancellation of sale deed dated 28.01.2002, which was executed through a power of attorney holder Bilas Dev in favour of Kishore Kumar and Rajeev Sharma. 17. It is not the case that any false document was prepared by the petitioner. What is the case is that without having any title, the property was sold to Jitendra Kumar Mathur. It is not forgery. It is also not the case that the informant was cheated. The informant was not deceived. The informant was not induced to deliver any property. 18. In the case of Mohammed Ibrahim and others Vs. State of Bihar and another, (2009) 8 SCC 751 , under the similar circumstances, the Hon’ble Court observed as hereunder:- “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 bona fide 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 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. 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 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.” 19. In the instant case, it is not the case of the prosecution that the petitioner sold any property by impersonation; it is not the case against the petitioner that he prepared any false document as defined under Section 464 IPC; it is not the case against the petitioner that he tried to deceive the informant or he cheated him in any manner. therefore, this Court is of the view that, in fact, no prima facie offence under Sections 420, 467, 468, 471 and 120B IPC is made out against the petitioner. Accordingly, the petition deserves to be allowed. 20. The petition is allowed. 21. The impugned cognizance order and charge sheet in FIR No. 129 of 2016, dated 11.08.2016, under Section 420, 467, 468, 471, 120B IPC, Police Station Prem Nagar, District Dehradun are quashed.