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2023 DIGILAW 2924 (ALL)

Pavnari Devi v. State of U. P.

2023-12-22

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. By means of present criminal revision, the revisionists, have assailed the order dated 20.6.2012 and 12.7.2012, passed by Additional Chief Judicial Magistrate, Maharajganj, in Criminal Case No. 797 of 2012, (State Vs. Raghvendra Pratap Singh @ Ankit and others) under Sections 420, 467, 468, 471 I.P.C. and P.S. Nichlaul, District-Maharajganj, arising out of Case Crime No. 227 of 2012. 2. As both the criminal revisions have arisen out of same impugned order passed in Criminal Case No. 797 of 2012, (State Vs. Raghvendra Pratap Singh @ Ankit and others) under Sections 420, 467, 468, 471 I.P.C. and P.S. Nichlaul, District-Maharajganj, therefore, both the revisions are being decided by this common order. 3. Heard the submissions of learned senior counsel Sri Gajendra Pratap, assisted by Sri S.P. Srivastava on behalf of the revisionists and Sri Manish Tiwari, learned Senior Advocate, assisted by Sri Rahul Chaudhary and Sri Shiv Saran Singh, on behalf of opposite party No. 2, learned A.G.A. for the State and perused the record. 4. The facts arisen to file present criminal revisions are that the informant Manvendra Singh, moved an application on 2.2.2012 before the Court of CJM, Maharajganj, under Section 156(3) Cr.P.C. with prayer to direct the SHO, concerned to register a case and investigate the same. Learned CJM allowed the application vide order dated 25.2.2012 to register a case and investigation of same pursuant to the order of the Court of Chief Judicial Magistrate, the present FIR was lodged on 17.3.2012, at 12:30 hours, wherein it is stated that plot no. 148 measuring 0.210 hectare has four co-sharers, named, Devendra Singh (since deceased), Shivendra Singh, Manvendra Singh and Dharmendra Singh and each one of them has equal 1/4 share in it. That after the death of Devendra Singh his 1/4 share has devolved upon his wife Smt. Alka, son Raghvendra Pratap and daughter Km. Arunima and each of them have become co-sharer of 1/12. That the said heirs of deceased Dharmendra Singh have sold out excess land of their share by executing two sale deeds dated 19.4.2011 and 9.5.2011 in favour of accused Smt. Pavnari Devi. The execution of the said sale deeds amounts to commission of cheating and forgery causing wrongful gain to them and wrongful loss to other three co-sharers. That the said heirs of deceased Dharmendra Singh have sold out excess land of their share by executing two sale deeds dated 19.4.2011 and 9.5.2011 in favour of accused Smt. Pavnari Devi. The execution of the said sale deeds amounts to commission of cheating and forgery causing wrongful gain to them and wrongful loss to other three co-sharers. The marginal witnesses of the two sale deeds, i.e. Feku, Bhagat, Vishwanath and Phool Badan and Chandra Shekhar Pandey, Scribe of the said sale deeds alongwith lekhpal of the area, named as Madan Gopal also conspired in the commission of the said offences. 5. The FIR was lodged against Raghvendra Pratap Singh, Alka Singh, Arunima Singh, the heirs of late Devendra Singh, who were co-sharer of the informant alongwith Smt. Pavnari Devi (vendee), Chandra Shekhar Pandey, Scribe of impugned sale-deeds and Madan Gopal-Halka Lekhpal and marginal witnesses of sale-deed. The police investigated the case and filed charge-sheet against ten named accused persons with prayer to prosecute them for charge under Sections 420, 467, 468, 471 I.P.C. 6. Learned Magistrate on 20.6.2012 and 12.7.2012, passed impugned orders, which are transcribed in English as under: “On 20.6.2012 - Today charge-sheet received. Cognizance taken. Order-Issue notice to accused after preparation of copies.” “On 12.7.2012 - Today copies are received after preparation. Order- File be put up on 5.8.2012. Issue summon to accused.” 7. Learned counsel for the revisionist submitted that this is admitted fact that accused revisionist Raghvendra Pratap Singh, his mother Smt. Alka Singh and sister Km. Arunima Singh are legal heirs of late Devendra Singh, who were co-sharer of the informant Manvendra Singh alongwith others. The informant is co-sharer of disputed land mentioned as Plot No. 148, measuring 0.210 hectares alongwith Devendra Singh, Shivendra Singh and Dharmendra Singh. The stand of the revisionist-vendors namely, Raghvendra Pratap Singh, Smt. Alka Singh and Arunima Singh is that they sold their own share in plot No. 148, measuring 0.210 hectares to the vendees, who are co-accused whereas the informant has alleged that they had sold 1/2 portion of disputed plot to the vendees through sale deed dated 19.4.2011 and 9.5.2011 whereas they had only 1/4 share, which they inherited through late Devendra Singh in said plot. Thus, the main allegation against the revisionists/vendors is that they sold the 1/4 share which belongs to informant and other co-sharers in said plot in excess of their 1/4 share in said plot. Thus they sold 1/2 of the area of said plot instead of 1/4 which actually fell in their share. The matter is essentially of civil nature. No case of forgery is made out on the basis of allegations levelled against them. The case neither comes within the purview of forgery nor cheating as there is no complaint by the predecessor of impugned sale-deeds against the vendors. Inasmuch as the vendors, vendees, marginal witnesses, Lekhpal, Scribe are wrongly impleaded as accused in FIR and police wrongly filed chargesheet against all of them. Whereas, no offence has been committed by the accused persons. He further submitted that learned court below has failed to consider the binding authority of Hon’ble Apex Court cited before it by the accused persons. 8. Learned counsel for the revisionists further submitted that learned trial court while taking cognizance and issuing process against accused revisionists has not disclosed any reason. The impugned orders is in teeth of the binding authority in Mohd. Ibrahim and others vs. State of Bihar, (2009) 8 SCC 751 . The learned trial court has taken cognizance on police report submitted against the accused persons in the case without disclosing any reason and thus, the impugned orders is outcome of non application of mind towards the facts of the case. It is expected on the part of the court below to apply its mind to the facts and allegations contained in the charge-sheet to ascertain whether the facts or allegations constitute commission of an offence, complaint of and to find out whether any offence is made out on the basis of allegations made in prosecution version. He also contended that execution of sale deeds in excess of ones share generates only a civil cause of action and no offence punishable under Sections 420, 467, 468, 471 I.P.C. is disclosed against the revisionists and this Court had passed a stay order on 21.8.2012 as the matter required consideration. He also submitted that the informant of the case namely, Manvendra Singh is facing trial of murder of Devendra Singh, the predecessor-in-interest of Raghvendra Singh and others. He also submitted that the informant of the case namely, Manvendra Singh is facing trial of murder of Devendra Singh, the predecessor-in-interest of Raghvendra Singh and others. In fact, heirs of deceased Devendra Singh have been falsely roped in as accused in the present case by Manvendra Singh to exert pressure on them so that they may not evidence against them in the said murder case. The revisionist and other accused persons had filed a Criminal Writ being Writ No. 51 of 2012, before this Court for quashing of present FIR, in which this Court was pleased to stay arrest of the accused persons by order dated 11.5.2012 till submission of police report under Section 173(2) Cr.P.C. The only excess land owned and possessed by revisionists was sold, no share of any one was illegally sole by Raghvendra Pratap Singh and others. They did not commit any fraud or forgery on complainant nor his land was alienated in any manner. 9. Per contra, learned counsel for the respondent No. 2 submitted that this is clear case where the revisionist Raghvendra Pratap Singh, Smt. Alka Singh and Arunima Singh had sold the land in excess of their shares to Pavnari Devi and others, which fell within the portion of informant Manvendra Singh and other co-sharers. Therefore, the informant and other co-sharers of revisionist suffered wrongful loss to the illegality committed by Raghvendra Singh and others due to which the vendors and the vendees, both got benefited and other co-accused persons facilitated the execution of his sale deed. 10. Learned counsel for the respondent No. 2 has placed reliance on a judgment passed by Division Bench of this Court in Criminal Misc. Writ Petition No. 4029 of 2020 (Neetu Mittal and Another vs. State of U.P. and others), in which this Court dismissed the writ petition filed by the accused persons with prayer to quash the FIR loged against them under Sections 419, 420, 467, 468, 471 and 120-B IPC. Learned counsel further submitted that in that case the judgment of Mohd. Ibrahim and others vs. State of Bihar (supra) cited by revisionists was distinguished with observation “as observation on forgery and cheating therein have been made in the peculiar facts of the case.” 11. In that case the complainant had no clear title to the suit property, whereas the vendor had inherited the suit property form his parent. Ibrahim and others vs. State of Bihar (supra) cited by revisionists was distinguished with observation “as observation on forgery and cheating therein have been made in the peculiar facts of the case.” 11. In that case the complainant had no clear title to the suit property, whereas the vendor had inherited the suit property form his parent. The Supreme Court has noted that the dispute therein was of purely civil nature and had deprecated the tendency of complainant attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature with a view to apply pressure on the accused or out of enmity towards the accused, or to subject the accused to harassment. No such situation can be contemplated in the facts of the present case. 12. In Neetu Mittal’s case (supra), the petitioners were purchasers of a property situated at C-51, Ramprastha, Surya Nagar, District Ghaziabad through a registered sale deed dated 2.1.2012. The vendor of the disputed property was Mr. Vikas Garg. The disputed property was purchased by Vikas Garg jointly with his brother Vinay Garg and sister Deepika Garg and it was in possession of Vinay Garg. The said property was mortgaged to the company namely Citi Financial Consumer Finance India Ltd. against a loan of Rs. 1 Crore 65 Lakhs and odd jointly taken by the above three purchasers. This loan was assigned to Kotak Mahindra Bank and in an arbitration proceeding for realization of loan, arbitration award was passed fixing liability of the loanees namely Vikas Garg, Vinay Garg and Deepika Garg. The loan money found due by the arbitrator was to be paid to the Kotak Mahindra Bank. The bank took the matter to the Debt Recovery Tribunal in a proceeding initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (also known as the “SARFAESI Act”). In the meantime, the disputed property was sold to the petitioners herein by Vikas Garg, one of the co-owners vide sale deed dated 2.1.2012. The purchasers petitioners are sister-in-law and brother-in-law of Vikas Garg. The petitioners herein again took loan from the Citi Bank by creating a mortgage on the disputed property. While the proceedings under SARFAESI Act were going on, the Kotak Mahindra Bank had lodged a criminal complaint against Vikas Garg, Vinay Garg, the respondent no. The purchasers petitioners are sister-in-law and brother-in-law of Vikas Garg. The petitioners herein again took loan from the Citi Bank by creating a mortgage on the disputed property. While the proceedings under SARFAESI Act were going on, the Kotak Mahindra Bank had lodged a criminal complaint against Vikas Garg, Vinay Garg, the respondent no. 4 herein his wife and Deepika Garg on the allegation that they had deceived the bank by creating a third party interest over the mortgaged property. 13. On above facts, this Court declined to quash the FIR lodged against the petitioners on peculiar facts of the case. 14. In Mohd. Ibrahim and others vs. State of Bihar, (supra), the informant had filed complaint against accused persons namely Mohd. Ibrahim and 2 others before CJM, Madhubani with allegation that he was the owner of agricultural plots in question. The first accused, who had no relation with the said land and who had no title over it, had executed two registered sale deeds dated 2.6.2003 in favour of the second accused in respect of a portion of the said land measuring - 8 Khatas and 13 Dhurs; and that the third, fourth and fifth accused being respectively the witness, scribe and stamp vendor in regard to the sale deeds had conspired with accused 1 and 2 to forge the said documents. Hon’ble Apex Court considered the matter at length and observed as under: “7. The question that therefore arises for consideration is whether the material on record prima facie constitutes any offences against the accused. The contention of the appellant is that if the allegations made in the complaint and FIR, even if accepted to be true in entirety did not disclose the ingredients of any offence of forgery (sections 467 and 471) or cheating (section 420) or insult (section 504) or wrongful restraint (section 341) or causing hurt (section 323) and there was no other material to show any offence and therefore, their application ought to have been accepted. 8. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. 8. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See: G. Sagar Suri v. State of U.P. 2000 (2) SCC 636 and Indian Oil Corporation vs. NEPC India Ltd. 2006 (6) SCC 736 ]. Let us examine the matter keeping the said principles in mind. 9. Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under section 467 or section 471 of Penal Code. 10. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. 11. Section 470 defines a forged document as a false document made by forgery. The term “forgery” used in these two sections is defined in section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. 12. Section 464 defining “making a false document” is extracted below: “464. 12. Section 464 defining “making a false document” is extracted below: “464. Making a false document - A person is said to make a false document or false electronic record: First - Who dishonestly or fraudulently: (a) makes, signs, seals or executes a document or part of a document. (b) makes or transmits any electronic record or part of any electronic record. (c) affixes any digital signature on any electronic record. (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed. Secondly - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation. Thirdly - Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. Explanation 1 - A man’s signature of his own name may amount to forgery. Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. Note: The words ‘digital signature’ wherever it occurs were substituted by the words ‘electronic signature’ by Amendment Act 10 of 2009.” 13. 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). Note: The words ‘digital signature’ wherever it occurs were substituted by the words ‘electronic signature’ by Amendment Act 10 of 2009.” 13. 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. 14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories: (1) 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. (2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. (3) 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 by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised 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 document’ if (i) he made or executed a document claiming to be someone else or authorised 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. 15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of ‘false documents’. 15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of ‘false documents’. 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 complainant’s land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. 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. 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. 19. 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. 19. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived: (i) to deliver any property to any person. (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security). 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. 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. 23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. 23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.” 15. With above observations, Hon’ble Apex Court concluded that the averments made in the complaint if assumed to be true, do not make out any offence under sections 420, 467, 471 and 504 of the Code. 16. In the present case, the main allegation against the revisionists is that Raghvendra Pratap Singh, his mother Alka Singh and sister Arunima Singh, who were co-sharers with the informant in regard to property in question sold a portion of land to other revisionist Pavnari Devi and others in excess of their share, which fell to the portion of informant and other co-sharers. This matter is squarely covered within the authority of Hon’ble Apex Court in Mohd. Ibrahim’s Case (supra) and it can be inferred on the basis of aforesaid judgment that on facts of the case, the offence as alleged against the revisionist/accused persons is not made out against the revisionists. 17. Learned trial court while passing impugned order has not discussed any reason as to how an in what circumstances, cognizance is being taken of the offence against accused-revisionists and summoning order is being passed against them to face trial. 18. Learned trial court has even not stated in impugned order that the court perused the police report and documents accompanied therewith while taking the cognizance of the offence on the basis of police report filed under Section 173(2) Cr.P.C. after conclusion of investigation. The matter is essentially of civil nature. 19. As prima facie, the offence alleged against revisionists are not made out in the light of aforesaid judgment of Hon’ble Apex Court in Mohd. The matter is essentially of civil nature. 19. As prima facie, the offence alleged against revisionists are not made out in the light of aforesaid judgment of Hon’ble Apex Court in Mohd. Ibrahim and others vs. State of Bihar (supra), this Court does not find it expedient to remit the matter before court below for deciding afresh. The impugned orders suffer from illegality and are not sustainable under law. The orders are liable to be set aside. 20. Accordingly, both criminal revisions referred as above stand allowed and the impugned orders dated 20.6.2012 and 12.7.2012, passed by Additional Chief Judicial Magistrate, Maharajganj, in Criminal Case No. 797 of 2012, (State Vs. Raghvendra Pratap Singh @ Ankit and others) under Sections 420, 467, 468, 471 I.P.C. and P.S. Nichlaul, District- Maharajganj, arising out of Case Crime No. 227 of 2012, are hereby set aside. 21. Proceeding initiated against accused persons before the court below in respect of offence in question is hereby quashed. 22. Let a certified copy of this judgment be forwarded to court concerned for information/necessary action.