Gujarat High Court

Harun Yusuf Hanslod vs State Of Gujarat on 11 October, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/17592/2020                          JUDGMENT DATED: 11/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                     FIR/ORDER) NO. 17592 of 2020
                                With
            R/CRIMINAL MISC.APPLICATION NO. 16979 of 2015
                                With
             R/CRIMINAL MISC.APPLICATION NO. 4788 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                   Sd/-

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1      Whether Reporters of Local Papers may be allowed              Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                       Yes

3      Whether their Lordships wish to see the fair copy             No
       of the judgment ?

4      Whether this case involves a substantial question             No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          HARUN YUSUF HANSLOD
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR MAHMOOD A MADNI(5092) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 11/10/2023
                             ORAL JUDGMENT

1. Since all these petitions are filed by different accused

persons against the same FIR, all these petitions are taken

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up for consideration and are decided together by this common

judgement. By filing these petitions, the petitioners have

prayed to quash and set aside FIR being C.R.No.I-160 of

2015 lodged with Kosamba Police Station, Surat (Rural), and

all consequential proceedings arising out of same FIR for the

offences punishable under Sections 465, 467, 468, 471 and

114 of the Indian Penal Code, so far as present petitioners

are concerned.

2. As the facts are by and large similar in all these

petitions, for the purpose of deciding these petitions, facts are

taken from Criminal Misc. Application No.17592 of 2020

which are as under:-

2.1 The first informant has narrated a story in the FIR

that the agricultural land situated in Block No.117, Block

No.133, Village-Ghunti, Taluka-Mangrol, District-Surat, was in

the joint names of accused no.1 and his maternal uncle-in-

law. However, in absence of his uncle in law who passed

away on 17.10.1995, the said land was sold in the year 2006.

In such circumstances, the first informant communicated with

the family members of his maternal uncle-in-law and with an

intention to take further action in the matter convinced them

to execute a power of attorney in his favour. Such power of

attorney dated 01.07.2011 was executed in favour of first

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informant. Ever since the first informant is pursuing all the

issues attached to the above referred land, ultimately on

28.08.2015, the first informant lodged the impugned FIR also.

As per the narration given in the FIR, the seller of the land

i.e. accused no.1 prepared a pedigree wherein the maternal

uncle-in-law was shown as the brother of the accused no.1

however, he was shown unmarried and without any progeny.

It was also stated in said pedigree that he has passed away

in the year 1995. The pedigree shows that when it was

prepared by the village officer, it was needed to be verified

by a "Panchkias" and such panchkias bears signature of the

applicants. It is pertinent to note that above panchkias was

passed upon an affidavit of fact affirmed by accused no.1.

2.2 The applicants state that though the FIR came to be

lodged as back as on 28.08.2015, the applicants of Criminal

Misc. Application No.17592 of 2020 came to be arrested on

03.09.2018.

2.3 The accused nos.7 to 13 have approached this Hon'ble

Court by way of an application by invoking the inherent

jurisdiction of this Hon'ble Court under Section 482 of the

Code of Criminal Procedure, by filing Criminal Misc.

Application No. 16979 of 2015 wherein the Hon'ble Court was

pleased to grant protection to accused nos.7 and 13.

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3. I have heard Mr.M.A.Kharadi for the petitioner in

Criminal Misc. Application No.17592 of 2020 and Mr.Tanmay

Kariya for the petitioner of Criminal Misc. Application

No.4788 of 2020 and Ms.Mohini Bhavsar for Mr.Bharat Dave

in Criminal Misc. Application No.16979 of 2015 and Mr.Rahul

Dave for the original complainant and learnedap for the

respondent state.

4. At the outset, it is treated by Mr.Rahul Dave, learned

advocate for the complainant that original complainant has

expired during the pendency of these petitions.

5. It is the case of the complainant that maternal uncle-

in-law of complainant and Yusuf Kasam Patel as well as real

sister of the complainant i.e.Sugarabibi, who happens to be

daughter of Kasim Patel were holding land situated in Block

No.117, Block No.133, Village-Ghunti, Taluka-Mangrol,

District-Surat, which was owned at the relevant point of time

by Yusuf Kasim Patel, who shifted to London and expired on

7.10.1995. Heirs of Yusuf Kasim Patel i.e. his wife Noorjahan

and children are there, however, as they could not come from

London for doing necessary process for Heirship in the

revenue record, accused-Sugarabibi has prepared bogus

pedigree (pedhinama) and stated that her brother Yusuf

Kasim Patel had not married and he expired without having

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any children. Such pedigree (pedhinama) is signed by accused

nos.2 to 6 as witnesses and accused no.7 has purchased the

stamp paper in his name and, therefore, on the basis of such

pedigree (pedhinama) and affidavit filed before Mamlatdar,

Mangrol, name of accused no.1 was entered into revenue

record and entries in Village Form Nos.6 and 7/12 are also

certified. Thereafter, said land is sold to accused nos.7 to 13

by register Sale Deed. Therefore, offence is committed by all

the accused persons.

6. Learned advocates for the respective petitioners have

drawn attention of the Court to role of the petitioners as

alleged in the FIR. It is submitted by all the learned

advocates that accused Sugarabibi is now settled in Canada

and she is not yet arrested. Criminal Misc. Application

No.16979 of 2015 is filed subsequent purchasers of the land

in question, while Criminal Misc. Application No.4788 of 2020

and Criminal Misc. Application No.17592 of 2020 are filed

by the witnesses to the documents in question. Considering

the role of Harun Hanslod, he has signed the panchnama of

pedigree as a witness of panchkyas. Accused Ayub Suleman

Patel has also signed such pedigree as a witness of

panchkyas. Accused Dineshchandra Bhagwanji Patel has

purchased the stamp paper in his name and that was used

for preparing the affidavit and pursuant to that such

pedigree is prepared.

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6.1 On the basis of said pedigree and affidavit, entry is

certified in revenue records and, thereafter, against such

entries, revenue proceedings are also initiated. At present,

such proceedings are pending before Special Secretary,

Revenue Department. However, all the petitioners have not

played an active role except either signing as witness or they

have purchased the stamp paper, which is thereafter used for

preparing affidavit, but said document is never executed by

any of the petitioner. Therefore, it is submitted that

considering the material available on the record, prima facie

no offence is made out against present petitioners.

6.2 It is also submitted that the complaint is filed after

delay of nine years from date of transaction in question and

even if date of execution of power of attorney in the year

2011 is taken into consideration, then also FIR is filed on

28.8.2015 i.e. after four years of execution of Power of

Attorney. Therefore, considering such an inordinate delay,

present proceedings are required to be quashed. Learned

advocates for the parties have relied upon following

judgments.

(i) Chanchalpati Das Versus State Of West Bengal with

Madhupandit Das Versus State Of West Bengal reported

in 2023 (0) AIJEL SC 71074;

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(ii) M.Srikanth v. State of Telangana and Another reported

in 2019 (10) SSC 373; and

(iii) State of Haryana V/s Bhajan Lal reported in AIR 1992

SC 604.

6.3 By relying upon aforesaid judgments, it is submitted

that no fruitful purpose will be served by continuing present

proceedings against present petitioners as no ingredients of

alleged offences are satisfied against present petitioners. It is

also submitted that, by considering the fact that this Court

has granted interim relief and ordered that no coercive steps

may taken against present petitioners, therefore, this Court

has also found prima facie case and it is prayed that all

these matters may be allowed. It is submitted that

continuation of proceedings will amount to abuse of process of

law, therefore, it is submitted that this is a fit case to

exercise powers under Section 482 of Criminal Procedure

Code by allowing present petition.

7. Mr.Rahul Dave, learned advocate for the complainant

has submitted that the complainant has expired, therefore,

now he cannot make submissions on his behalf. He has

submitted that he has not received any instructions from

heirs of the complainant, however, considering the facts and

material available on record and the allegations of creation of

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bogus pedigree, and as all the accused persons have played

an active role in committing such offence, prima facie case is

made out against present petitioners.

8. Learned APP, Ms.Monali Bhatt has strongly objected to

the prayers made in these petitions and tendered a copy of

the report submitted by concerned police station, wherein

specific roles of all the accused persons are mentioned. She

has submitted that the panchkyas is also sent for

handwriting expert's report at FSL and report is yet not

received. She has submitted that charge sheet is already filed

against Harun Yusuf Hanslod, Aadam Yusuf Hanslod and

Rashid Dawood Patel and, therefore, she has submitted that

when sufficient material is available against other accused

persons, present petitions may not be entertained as the

petitioners can put their defence before the Court at the time

of trial. She has, therefore, prayed to dismis all these

petitions.

9. I have considered rival submissions made at bar. The

offences alleged against present petitioners punishable under

Sections 465, 467, 468, 471 and 114 of IPC. Said provisions

are reproduced hereunder:-

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"114. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

..............

465. Punishment for forgery.

Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. ...........

467. Forgery of valuable security, will, etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or 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.

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468. Forgery for purpose of cheating.

Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

.......

471. Using as genuine a forged document or electronic record.

Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."

10. Before proceeding further, this Court may refer to the

observations of the Hon'ble Supreme Court in the case of

State of Haryana V/s Bhajan Lal reported in AIR 1992 SC

604, wherein the Hon'ble Supreme Court has illustrated the

cases wherein inherent powers under Section 482 of the

Criminal Procedure Code could be exercised either to prevent

abuse of the process of any court or otherwise to secure the

ends of justice and observed as under:-

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"In the backdrop of the interpretation of the various

relevant provisions of the Code under Ch.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 Art.226 or the inherent

powers under sec.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.

(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 sec.156(1) of the

Code except under an order of a Magistrate within the

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purview of sec.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

sec.156(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.

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(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."

11. It is also relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Inder Mohan Goswami and

Another versus State of Uttaranchal reported in (2007) 12

SCC 1, more particularly para : 23 & 24 thereof, which read

as under:-

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified

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by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

12. Keeping in mind aforesaid provisions of law and the

law laid donw in aforesaid decisions, I have also considered

the role of petitioners of Criminal Misc. Application No.17592

and 4788 of 2020, which is limited to the extent that they

have signed the pedigree is witness and such signature is

put without any criminal intention. Therefore, it would not

constitute any offence as alleged against them. In absence of

any material found during the course of Investigation

connecting the accused of these two petitions with the alleged

offence and in absence of any mens rea, it cannot be said

that offences under Sections 465, 467, 468, 471 and 114 of

IPC is made out against the petitioners of these two

petitions. Considering the contents of the FIR and the role

attributed to these accused coupled with the provisions of

alleged offences, it cannot be said that these accused have

created any false document or they are the author of these

documents on the contrary they are shown as witnesses.

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Considering this position, it is well settled that the person

who has signed merely as a attesting witness of any

document cannot be held liable for any criminality, unless

there is some specific material to indicate that he is having

some criminal intention or he has hatched any conspiracy

with other accused persons. On bare reading of the

complaint, no case is made out against petitioners of these

two petitions.

13. So far is petitioners of Criminal Misc. Application

No.16797 of 2015 are concerned, they are the purchasers of

the property and they have entered into the transaction

subsequent to the document produced by accused no.1

Sugarabibi for entering her name in the revenue record.

Sugarabibi might have committed the offence, as alleged in

the complaint, but she is not yet arrested. The only

allegation to implicate accused-Dineshchandra Patel is that he

has purchased the stamp paper in question whereupon the

affidavit is prepared. This accused might have purchased

stamp paper, but it cannot be said that he has used the

same for creating a forged document. Such affidavit is neither

signed by petitioner no.1 nor it is created by him. This

document might have been used for getting the revenue entry

registered, however, that itself is not sufficient to connect the

present accused with the crime in question because he has

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purchased the land by paying full sale consideration. Such

transaction can be set aside by initiating appropriate civil

proceedings by seeking appropriate declaration from the

concerned Court. It is needless to say that the revenue

authority has cancelled those entries and now the issue is

pending before Special Secretary, Revenue Department. Those

proceedings will be decided on its own merits, however,

subsequent purchaser cannot be implicated in the present

offence as there is no material except one document which is

purchased by Dineshchandra Patel is stamp paper. On the

basis which Sugarabibi has a created affidavit and, thereafter,

pedigree is prepared but that itself is not sufficient to satisfy

the ingredients of offences under Sections 465, 467, 468, 471

and 114 of IPC and, in absence of any Section being invoked

for hatching conspiracy, merely invocation of Section 114

cannot be attracted in absence of any specific allegations or

specific role and, more particularly, when the offence under

that Section is not made out against present petitioner.

Therefore, the role ascribed to the present petitioner in the

FIR does not constitute any prima facie offence. Therefore, it

is relevant to refer to the judgement of the Honourable Apex

Court in the case of M.Srikanth v. State of Telangana and

Another reported in 2019 (10) SSC 373, wherein it is

observed as under:-

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"20. The complaint filed by respondent No. 2 runs into 26 pages and 26 paragraphs. As already discussed hereinabove, it reveals a disputed property claim based on inheritance between the complainant, her sisters and her brother, accused No. 1. A perusal of the complaint would further reveal, that the complainant also disputes with regard to the area of the property including the manner of its devolution upon the parents of the complainant and her competing interest with that of her siblings. There is not even a whisper in the complaint that the present appellant, i.e., accused No. 4 was fully aware that accused No. 1 was not the sole beneficiary by inheritance and that the property had devolved upon the complainant and her sisters. Also there is nothing to show that knowing this he has collusively entered into the lease agreement with accused No. 1, by creating a false and fabricated will. Though, there is a mention with regard to conspiracy, but there is not even a suggestion with regard to manner of such conspiracy.

21. Upon perusal of the complaint itself, it would reveal that the father of the complainant and accused No. 3 had himself entered into a development agreement which subsequently came to be cancelled during his lifetime. It would also reveal, that only after the lease in question was executed in favour of the appellant, the complainant has raised all these issues. We are of the considered view, that the issues raised reflect a civil dispute with regard to

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inheritance amongst the legal heirs. We fail to understand as to how a dispute with regard to the inheritance under a will and deed of confirmation can be decided in a criminal proceeding. We find, that the same can be done only in an appropriate civil proceeding. Not only that, the civil proceedings with that regard are already instituted by various parties including the complainant. These proceedings are as follows:

(i) O.S. No. 239 of 2004 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(ii) O.S. No. 337 of 2002 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(iii) O.S. No. 58 of 2001 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(iv) O.S. No. 277 of 2000 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(v) O.S. No. 506 of 2001 on the file of the Hon'ble XI ACJ, CCC, Hyderabad.

(vi) Writ Petition (C) No. 685 of 2010.

22. It will be relevant to refer that though in the complaint, the complainant had mentioned about pendency of O.S. No. 1989 of 1996 against accused No. 3 and O.S. No. 1403 of 1999 against M/s Banjara Construction Pvt. Ltd., there is no reference with regard to the other proceedings. Accused No. 4 has been impleaded as a partydefendant in

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O.S. No. 506 of 2001 only on 30.10.2009.

23. O.S. No. 239 of 2004 has already been filed by the complainant against her brother, accused No. 1 and her three sisters inter alia for partition and separate possession which is stated to be pending. As such, the documents alleged to be fraudulent in the complaint will fall for consideration in the said suit. A possibility of contradictory finding in civil proceeding as against criminal proceedings cannot be ruled out. Though, the complainant had filed Writ Petition Nos. 23017/2009 and 23672/2009 to restrain construction on the plot in question, the same was dismissed on 28.10.2009. However, there is no mention with regard to the same in the complaint. This Court in Sardool Singh vs. Nasib Kaur, 1987 Supp. SCC 146 observed as follows:

"2. A civil suit between the parties is pending wherein the contention of the respondent is that no will was executed whereas the contention of the appellants is that a will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the will is a forged one. That question will have to be decided by

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the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts."

24. It is further to be noted, that the complainant and her sisters executed an agreement of salecumirrevocable specific power of attorney on 20.03.2015 in favour of one Mohd. Khalid Shareef. Various litigations have also been filed with regard to the installation of the petrol pump and grant of N.O.C. etc. The complaint was sent to the police for registration of an FIR and investigation under Section 156(3) of the Cr.P.C. on 24.11.2010. In its final report dated 30.08.2017, the police has opined that no material had surfaced to show any conspiracy during investigation.

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25. The learned Judge himself in Paragraph 8, after observing that it is nobodies case that the signatures on the documents in question are forged or anybody has impersonated for the purpose of cheating, goes on to observe thus:

"8...The allegation in nutshell in this regard is that accused No. 1 is not the absolute owner of the properties, but for one of the coowner or cosharer along with the de facto complainant and other sisters of them and he falsely claimed as if he is the owner for purpose of cheating by using as if genuine forged and fabricated documents of so called will and so called deed of confirmation. The so called will is of the year 1950 and the so called deed of confirmation is of year 19891990 and the alleged oral gift prior to that is of 1966.."

26. We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against accused No. 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the Police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and accused No. 1 executing the lease deed on the basis of the

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said forged and fabricated documents were only against accused No. 1, ought to have exercised his jurisdiction to quash the proceedings qua accused No. 4 also. We find that the learned Judge ought to have applied the same parameters to the present accused No. 4, which had been applied to the other accused whose applications were allowed.

27. Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned single Judge has rightly found that there was no material to proceed against accused No. 5 - HPCL and its officers accused Nos. 6 and 9 as also accused Nos. 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned single Judge has rightly exercised his jurisdiction under Section 482 of the Cr.P.C.

28. Insofar as original accused No. 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in the case of Bhajan Lal (supra). As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against accused No. 4. We are of the considered view, that continuation of criminal proceedings against accused No. 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed."

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14. In the case of Chanchalpati Das Versus State Of West

Bengal (supra), it is observed as under:-

"11. It is again pertinent to note that, even as per the

case of the complainant, the alleged incident of bus theft had

taken place in the year 2001, and it was only in 2009 that

the substantial complaint was made in the Court of Chief

Judicial Magistrate, Alipore. It is just not believable that the

concerned Ballygunge Police Station, Kolkata would not have

taken any action on the report made in 2002 on behalf of

the powerful body like the ISKCON Kolkata, or on the letter

dated 30.09.2006 written by the Branch Manager of the

ISKCON, Kolkata. The respondent no. 2- complainant also

did not take any concrete action for getting the said

complaint registered with regard to the alleged theft of bus

for a long period of eight years, till the complaint in the

Court was filed in the year 2009. In the opinion of the

Court such an inordinate delay of eight years in filing the

complaint in the court itself would be a sufficient ground to

quash the proceedings. If the luxury bus owned by the

ISKCON, Kolkata Branch in 1998 was so precious to them,

they would not have sat silent for such a long time of eight

years. In our opinion, the criminal machinery set into motion

by filing the complaint for the alleged incident which had

taken place eight years ago, that act itself was nothing but

a sheer misuse and abuse of the process of the court."

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15. In the case of Sheila Sebastian v. R. Jawaharraj and

Another reported in (2018) 7 SCC 581, it is observed as

under:-

"19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.

20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC.

As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore,

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an offence of forgery cannot lie against a person who has not created it or signed it.

21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that-

"14. .. 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."

22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.

23. The Court in Md. Ibrahim (supra) observed that:

"16. .......There is a fundamental difference between a person executing a sale deed claiming that the property

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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."

24. In Mir Nagvi Askari vs. Central Bureau of Investigation,

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(2009) 15 SCC 643, this Court, after analysing the facts of that case, came to observe as follows:

"164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.

25. Keeping in view the strict interpretation of penal statute

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i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.

26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.

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27. A reasonable doubt has already been thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The State of Maharashtra, (2018) 3 SCC 66 wherein 'reasonable doubt' has been enunciated by this Court as "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis."

28. In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability."

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16. Considering these judgements, I am of the opinion that

prima facie no offence is made out against present petitioners of all these petitions. Considering the material available on

the record and ratio laid down in the case of Bhajan Lal

and Inder Mohan Goswami (supra), this is a fit case wherein

this Court should exercise powers under Section 482 of

Criminal Procedure Code to prevent abuse of process of law.

Considering factual aspects of present case, no offence is

made out against present petitioners, therefore, all these

petitions are required to be allowed.