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2023 DIGILAW 254 (UTT)

Mohan Joshi v. State of Uttarakhand

2023-04-03

RAVINDRA MAITHANI

body2023
JUDGMENT : RAVINDRA MAITHANI, J. 1. The challenge in this petition is made to the Charge-sheet dated 03.10.2018 and Cognizance Order dated 09.10.2018, passed in Criminal Case No. 3044 of 2018, State vs. Anil David and Others, under Sections 420, 467, 468, 471 & 120B IPC, by the court of Additional Chief Judicial Magistrate, Nainital (the case) and the entire proceedings of the case. 2. Heard learned counsel for the parties and perused the record. 3. The case is based on an FIR lodged by respondent no. 2 (the informant). According to it, co-accused, Anil David and Johnson T. John, by claiming themselves owner, forged a resolution of Lucknow Diocesan Trust Association (the trust) and sold the land pertaining to Widows’ Home, Nainital to the petitioners. The FIR records that the petitioners and co-accused were hand in glove in this act and they were always in the process of making the properties disputable, so that they could earn money illegally. Based on this FIR, after investigation, charge-sheet was submitted against the co- accused Anil David and Johnson T. John, and the petitioners, which is basis of the case. In that charge- sheet cognizance has been taken, which is impugned herein. 4. Learned counsel for the petitioners would submit that the petitioners are bona fide purchasers; they had purchased the property on 10.10.2014, by virtue of a registered sale deed, and they had paid the consideration by way of demand drafts. Learned counsel raised the following points also in his submission: (i) After purchase of the property, mutation has already been done in favour of the petitioners. The property has been recorded in their names. (ii) The informant or any other person has not filed any case for cancellation of sale deed. (iii) With regard to similar allegations, Special Investigation Team (the SIT) at Dehradun had investigated the matter and had found that, in fact, co-accused Anil David was the Director of the Trust even in the year 2017. (iv) Petitioners are innocent and they did not commit any offence. 5. In support of his contention, learned counsel has placed reliance on the principles of law as laid down in the case of Mohammed Ibrahim and Others vs. State of Bihar and Another, (2009) 8 SCC 751 to argue that mere sale and purchase does not make out a case of forgery. 5. In support of his contention, learned counsel has placed reliance on the principles of law as laid down in the case of Mohammed Ibrahim and Others vs. State of Bihar and Another, (2009) 8 SCC 751 to argue that mere sale and purchase does not make out a case of forgery. In the case of Mohammed Ibrahim (supra), the Hon’ble Supreme Court has interpreted the concept of false document and in Para 17 observed as hereunder: “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.” 6. On the other hand, learned counsel for the informant would submit that the co-accused did forge resolution of the trust, which speaks of some applications, having been given by the petitioners, but there is no such application on record and, thereafter, allegedly the sale was done. He would also raise the following points in his submission: (i) The consideration is shockingly disproportionate; the property worth Crores was sold for some lakhs only. (ii) There has been no resolution of trust as such. (iii) Part of the consideration has been shown to be given in cash, which doubts the transactions and creates a huge doubt that the petitioners, under a conspiracy, purchased the property, so that it may be grabbed. (iv) The SIT was constituted for the instant transactions that gave its report on 30.03.2018 and held that the transactions were not done by the trust. The co-accused forged the documents and under a conspiracy with the petitioners executed the deeds. Reference has been made to the report of SIT, which has been filed along with the counter affidavit of the informant. (v) The petitioners are implicated for criminal conspiracy. Forgery was done by the co- accused by forging the resolution of the trust. 7. It is a petition under Section 482 of the Code of Criminal Procedure, 1973 (the Code). Reference has been made to the report of SIT, which has been filed along with the counter affidavit of the informant. (v) The petitioners are implicated for criminal conspiracy. Forgery was done by the co- accused by forging the resolution of the trust. 7. It is a petition under Section 482 of the Code of Criminal Procedure, 1973 (the Code). A jurisdiction which is much wide, so as to make such orders, as may be necessary to give effect to any order of the court or to prevent abuse of the process of any court or otherwise to secure the ends of justice. At the same time, the jurisdiction is much guided by the principles of law as laid down by the Hon’ble Supreme Court in a catena of decisions. In the case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, the Hon’ble Supreme Court illustratively gave a list of circumstances under which the jurisdiction may be exercised. In Para 102, the Hon’ble Supreme Court observed as hereunder: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 8. What is being argued is that there is no prima-facie case made out against the petitioners because they had purchased the property from the co-accused; they are bona fide purchasers. The prosecution case is that the co-accused Anil David and Johnson T. John were not authorized to act on behalf of the trust; they forged the resolution and under a conspiracy with the petitioners, the petitioners had purchased the property of Widows’ Home at a throwaway price. The petitioners have been charged under Section 120B IPC also. The prosecution case is that the co-accused Anil David and Johnson T. John were not authorized to act on behalf of the trust; they forged the resolution and under a conspiracy with the petitioners, the petitioners had purchased the property of Widows’ Home at a throwaway price. The petitioners have been charged under Section 120B IPC also. Section 120B IPC provides for punishment for criminal conspiracy, which has been defined under Section 120A IPC, it is hereunder: “120A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done: (1) an illegal act. (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” 9. It is true that if a transaction is purely civil in nature, without any element of criminality, an interference, at this stage, is always warranted. That is what is being projected on behalf of the petitioners. The question is, is it so? In order to find out the elements of criminal conspiracy, the act and conduct is much relevant. The conspiracy may not be read as such, it has to be inferred by the deeds or the conduct. 10. A few facts need elaboration: (i) According to the petitioners, pursuant to a resolution dated 18.09.2014, the co-accused had sold the property to them, it is annexure-2. (ii) Three sale deeds were executed in favour of the petitioners on 10.10.2014. (iii) In favour of petitioner no. 1, Mohan Joshi, the sale deed, that was executed, records the valuation of share purchased at Rs. 37,70,000/- but the property was sold for Rs. 5 lakhs, which was given in cash. (iv) The property, which was purchased by the petitioner no. 2-Madan Joshi has been valued in the sale deed at Rs. 37.70 lakhs. It was sold for Rs. 5 lakhs. Out of which Rs.1 lakh was given in cash. (v) The property, which was sold to petitioner no. 3 Pradeep Joshi records in the sale deed that its value is Rs. 2-Madan Joshi has been valued in the sale deed at Rs. 37.70 lakhs. It was sold for Rs. 5 lakhs. Out of which Rs.1 lakh was given in cash. (v) The property, which was sold to petitioner no. 3 Pradeep Joshi records in the sale deed that its value is Rs. 45.24 lakhs, but it was sold for Rs. 6 lakhs. Out of which Rs. 2 lakhs was given in cash. (vi) The petitioners have filed the drafts at Annexure-9. They are dated 3rd, 4th & 5th June, 2014. 11. It may be noted that in the alleged resolution of the trust, which is annexure-2 to the petition, it is recorded that against the applications of the petitioners, but the date of application is left blank. It also records of some advance demand drafts, but their numbers and dates are also blank in this resolution. 12. The question is how did the petitioners give applications? How did petitioners come to know that co-accused are going to sale some property of Widows’ Home? Has there been any publication or an advertisement? The Court posed these questions to the learned counsel for the petitioners. He has no reply. 13. This Court is conscious that it is a stage of disposal of a petition under Section 482 of the Code, a mini trial is always avoided. But, to the extent of appreciating the arguments, the matter is being looked into or examined. 14. Petitioners have also not filed the applications, which they had given to the co-accused for purchasing the property. As stated, it is not revealed as to what was the occasion for the petitioners to move applications. 15. The charge-sheet records that the co-accused did not deposit the amount in the trust’s account. Instead, it was deposited in their individual accounts. 16. The consideration is definitely shockingly disproportionate. The property of Widows’ Home has been sold at a throwaway price. Some of the payments have allegedly being made in cash. 17. Most importantly, it is the case of the petitioners that they had given the drafts, as enclosed at Annexure-9 to the petition, but, as stated, these drafts are of 3rd, 4th & 5th June, 2014. What was the occasion for the petitioners to prepare the drafts in the month of June? When did the petitioners give any application? How did they come to know that the property is being sold? What was the occasion for the petitioners to prepare the drafts in the month of June? When did the petitioners give any application? How did they come to know that the property is being sold? More importantly, when allegedly the resolution was made on 18.09.2014, why and how the drafts were prepared in the month of June, 2014? These questions would require a trial. The allegation as levelled against the petitioners definitely makes out a prima-facie case against them. 18. Having considered, this Court is of the view that there is no reason to make any interference at this stage. Accordingly, the petition deserves to be dismissed. 19. The petition is dismissed.