HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved. Court No. - 55 Case :- CRIMINAL REVISION No. - 1591 of 2011 Revisionist :- Abdul Bari Sekh Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Ronak Chaturvedi Counsel for Opposite Party :- Govt. Advocate Hon'ble Bharat Bhushan,J.
1. Heard Mr G. S. Chaturvedi, learned Senior Counsel assisted by Sri Ronak Chaturvedi, learned counsel for the revisionist, Sri M. M. Tripathi, learned counsel for the respondent no. 2 and learned AGA on behalf of State and have perused the material on record.
2. By means of this criminal revision, revisionist has prayed for quashing of the summoning order dated 4.3.2011 passed by learned Chief Judicial Magistrate, Allahabad in Criminal Case No. 1817 of 2009, (State Vs Abdul Bari) arising out of Case Crime No. 163 of 2009, under Sections 419, 420, 467, 468, 468 IPC, P.S. Colonelganj, District Allahabad.
3. The facts leading to the present criminal revision are that opposite party no. 2 lodged an FIR on 19.3.2009 against the revisionist vide case Crime No. 163 of 2009, under Sections 419, 420, 467, 468 IPC, P.S. Colonelganj, District Allahabad for an incident alleged to have taken place on 2.3.1982. It is stated that revisionist and opposite party no. 2 were co-sharer in Bhumidhari Plot No. 68 measuring 2 bigha, 13 biswa situated in Village Bhagwatpur, Pargana and Tehsil Sadar, District Allahabd and the said land was sold by the revisionist through a registered sale deed on 2.3.1982 in favour of one Ghanshyam Singh knowing fully well that the said land belongs to opposite party no. 2. It is further alleged that when the said act of revisionist came into knowledge of the opposite party no. 2, he immediately got his name mutated in the revenue records and further there was apprehension in the mind of opposite party no. 2 that the revisionist, who is co-sharer with opposite party no. 2 over other lands, might execute sale deeds of the lands which are exclusively possessed by the opposite party no. 2.
4. The matter was investigated by the police and the Investigation after concluding the investigation submitted the charge sheet in the matter on 21.9.2009 against the revisionist under Sections 419, 420, 467, 468 IPC, upon which learned Magistrate took cognizance on 24.11.2009 and case was registered as Case No. 1817 of 2009, and thereafter the court below summoned the revisionist to face the trial vide order dated 4.3.2011. It is this order which is subject matter of challenge before this court.
5. It is contended by learned senior counsel appearing on behalf of revisionist that no offence under Sections 419, 420, 467, 468 IPC is made out against the revisionist and further the dispute in the present case is of purely civil nature and has been maliciously converted into criminal offence and further a suit under Section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act (In short UPZA & LR Act) for declaration of Bhumidhari rights over the land in question is pending against the opposite party no. 2 before the competent court. It is further submitted that the court below has passed the impugned order without mentioning the sections under which the revisionist is sought to be summoned and hence the impugned order is liable to be set aside. Further the court below has also failed to consider the fact that the FIR has been lodged after an unexplained delay of about 27 years for an incident which took place on 2.3.1982 and that no reason has been assigned while taking cognizance of the offence. It is also submitted that a criminal proceeding between the co-sharers of a joint property should not be allowed to proceed rather it is mere an abuse of process of court and it would be unfair.
6. Learned senior counsel appearing on behalf of the revisionist after taking the Court through the entire material and the allegations made in the FIR and all other relevant materials on record contended that even if all the allegations made against the revisionist are taken at their face value, no case under any provision of the Indian Penal Code, is made out. It is further submitted that the dispute between the parties is confined to the extent of their respective shares and for that a suit has already been filed. For such right even if denied by other co-sharers for any reason, the civil remedies are available and criminal proceedings cannot be taken for enforcing such a civil right.
7. Learned counsel dealing with the principles relating to exercise of jurisdiction of this court under revisional exercise to quash the entire criminal proceedings including order taking cognizance specially when the dispute relates to civil nature, submitted that the Apex Court has given a clear guidelines for dealing with such cases. It was also submitted that the complainant has not produced or given details of any document/agreement which has been forged and that all the allegations are bald and vague and do not constitute any offence so as to initiate a criminal proceeding against the revisionist. Lastly, it is submitted that the entire criminal proceedings including the order taking cognizance is fit case to be quashed as the allegations made against the revisionist do not constitute any offence and it is a sheer abuse of the process of the court and the criminal proceeding has been initiated with malice and with absurd and improbable allegations. In support of his arguments, learned counsel has placed reliance on the case of Devendra and others Vs State of UP and another reported in (2009) 7 SCC 495, wherein the Hon‟ble Supreme Court observed that:
"24. .....When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing".
8. Per contra learned counsel for the respondent has submitted that a mere pendency of a civil action between the parties, can be no ground to quash the criminal proceeding. It is also submitted that it has been held in catena of decisions of the Hon'ble Apex Court that criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. It is also submitted that a civil proceeding has to be decided on the basis of probabilities while the criminal case has to be decided by adopting the standards of proof of "beyond reasonable doubt". At this initial stage, truthfulness or otherwise of the allegations levelled by the complainant against the revisionist cannot be meticulously examined. Even if the accused is successful in creating some doubt or suspicion, it would not be proper to quash the entire proceedings or the order taking cognizance as the same would result in giving finality without allowing the complainant to adduce evidence to substantiate the allegations.
9. In the light of the factual position and allegations made against the revisionist, the question that falls for consideration is as to whether on the facts disclosed in the FIR any criminal offences as alleged are made out against the revisionist ? In the case in hand the Magistrate has taken cognizance of the offence under Sections 419, 420, 467, 468 IPC, therefore, it will be necessary to look as to whether any offences under aforesaid sections are made out or not against the revisionist.
10. Perusal of the FIR would indicate that the only allegation levelled against the revisionist is of execution of the sale deed to another person of the property allegedly possessed jointly by the revisionist and opposite party no. 2 to the third person. For the purpose of constituting an offence of Cheating, it is required to show that the revisionist had fraudulent or dishonest intention at the time of making the sale deed, which is lacking in the present case.
11. Further to constitute an offence of forgery defined under Section 463 IPC, it is necessary to execute a document with the intention of causing it to be believed that such document inter alia was made by the authority of a person by whom or by whose authority he knows that it was not made. The revisionist claims title over the property and it is not in dispute that he has executed a sale deed. If any person is aggrieved by the false assertions made in the said sale deed, it should be the vendee not the complainant.
12. In the instant case, the complainant is claiming himself to be a co-sharer along with the revisionist and has stated that though the property has not been partitioned by metes and bounds, the revisionist is selling the property. It is also alleged that a suit under Section 229 B of the U.P.Z.A. & L.R. Act is pending between the parties before the competent court regarding the property in dispute. Obviously, the ingredients responsible to constitute the offence are lacking in the present case. It appears that a civil dispute has been converted into criminal case. The present case is one of that type where the matter is predominantly a civil wrong. A civil suit is already pending between the parties. The respondent No. 2 cannot be allowed to give the civil dispute of property a cloak of criminal offence. Criminal procedures are not short cuts of other remedies available in law. In the instant case question of title over the property in dispute is involved which cannot be adjudicated by Criminal Court. It is pertinent to point out that complainant is not the purchaser of disputed property. He is claiming title over the property already sold.
13. Hon'ble Supreme Court in Mohammed Ibrahim and others Vs State of Bihar and another reported in (2009) 8 SCC 751 has held thus:-
"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. 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; or 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; or 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). 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 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 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'. 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 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 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 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.
Section 420 IPC
18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
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, or
(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.
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."
14. In the light of aforesaid law laid down by the Apex Court, it is evident that no offence under Sections 419, 420,467,468 IPC is made out against the revisionist. This dispute requires adjudication of question of title over the disputed property which can not be done by criminal court.
15. Apex Court in the case of Chandra Pal Singh v. Maharaj Singh, AIR 1982 SC 1238 has held that a frustrated litigant should not be permitted to give vent to his frustration cheaply by agitating invoking jurisdiction of the Criminal Court.
16. In the present case, when civil proceedings are already pending in Civil Court, the respondent cannot be permitted to misuse the criminal law to entangle the revisionist into a criminal prosecution to brow beat him. In the sequence of facts as stated in the instant revision, permitting the respondent No. 2 to misuse the criminal law by criminal case, where the matter is completely a civil dispute, would be the abuse of the process of law and the interest of justice requires that the proceedings pending against the revisionist should be quashed.
17. The Apex Court in CRIMINAL APPEAL NO. 2069 OF 2012, arising out of Special Leave Petition (Crl) No. 7720 of 2011 (Paramjeet Batra Vs State of Uttarakhand and others) in paragraph no. 8 has held that Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.
18. In view of the aforesaid discussion, I feel it is a fit case to observe that there is no evidence available on record to justify summoning of the revisionist as an accused in the present case as no criminal offences under Sections 419, 420,467,468 IPC are made out.
19. In light of above, the instant criminal revision is allowed. The impugned summoning order is hereby set aside and the criminal proceedings pending against the revisionist are quashed.
Order Date :- 17.11.2015 RavindraKSingh (Justice Bharat Bhushan)