Jharkhand High Court
M/S Online Entertainment Private ... vs The State Of Jharkhand on 18 March, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 1865 of 2020
----
1. M/S Online Entertainment Private Limited, represented by its Director
Anamika Gautam, W/o Dr. Nishikant Dubey, aged about 40 years,
resident of: opposite B.Ed. College, Williams Town, P.O. P.S. Town &
Dist: Deoghar, State: Jharkhand.
2. Anamika Gautam, W/o. Dr. Nishikant Dubey, aged about 40 years,
resident of: opposite B.Ed. College, Williams Town, P.O. P.S. Town &
Dist: Deoghar, State: Jharkhand.
... Petitioners
-versus-
1. The State of Jharkhand
2. Kiran Devi aged about 58 years W/o Shashikumar Singh, resident of
Kiran Palace, Hanuman Tikri, Deoghar, District, Town, P.O. & P.S:
Deoghar, State: Jharkhand.
... Opposite Parties
----
WITH
Cr. M.P. No. 1846 of 2020
----
Anamika Gautam W/o. Dr. Nishikant Dubey, aged about 40 years, resident
of: opposite B.Ed. College, Williams Town, P.O. P.S. Town & Dist:
Deoghar, State: Jharkhand.
... Petitioners
-versus-
1. The State of Jharkhand
2. Vishnu Kant Jha aged about 40 years, resident of: Bampas Town,
Deoghar Town, P.O. & P.S: Deoghar, District: Deoghar, State: Jharkhand.
... Opposite Parties
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
----
For the Petitioners : Mr. Mukul Rohatgi, Sr. Advocate
Mr. R.S. Majumdar, Sr. Advocate
Mr. Keshav Mohan, Advocate
Mr. Namit Kumar, Advocate
Mrs. Preity Sinha, Advocate
For the State: Mr. Dushyant Dave, Sr. Advocate
Mr. Anurabh Choudhary, A.A.G.
Mr. Kaushik Sarkhel, G.A. V
Ms. Pragya Baghel, Advocate
Ms. Neha, Advocate
Ms. Supriya Minz, A.C. to G.A. V
For the O.P. No.2 Mr. Jitendra S. Singh, Advocate
[in Cr. M.P. No.1865/2020]
2
For the O.P. No.2 Mr. Ranjan Kumar Singh, Advocate
[in Cr. M.P. No.1846/2020]
----
ORDER
RESERVED ON 04.02.2021 PRONOUNCED ON 18.03.2021
10/ 18.03.2021 Cr. M.P. No.1865 of 2020
In this criminal miscellaneous petition (Cr. M.P. No.1865 of 2020) filed
under Section 482 of the Code of Criminal Procedure, petitioners have prayed
for quashing the First Information Report registered as Deoghar Town Police
Station Case No.346 of 2020 for offences punishable under Sections
467/468/471/420/511/120B of the Indian Penal Code and Section 82 of the
Registration Act.
PROSECUTION CASE
2. The prosecution case, as per the written report of one Kiran Devi @
Kiran Singh wife of Shashi Kumar Singh is as follows.
Kiran Devi stated that she being resident of Deoghar, had purchased a
land measuring 1 Bigha 3 Kathas 11 Dhurs situated at Mouza Shyamganj,
Thana No.413, Jamabandi No.7/3385, Plot No.240, in the year 1994. She
stated that in relation to the said property, one Chandra Bhushan Ojha was
the registered power of attorney holder of the legal heirs and successors of
Nirmala Bala Ghosh wife of Balai Chandra Ghosh. The legal heirs are as
follows: -
(a) Gora Chand Ghosh son of Yogesh Chandra Ghosh
(b) Bhavesh Chandra Ghosh son of late Balay Chandra Ghosh
(c) Ramesh Chandra Ghosh son of late Balay Chandra Ghosh
(d) Smt. Ghosh daughter of late Balay Chandra Ghosh
(e) Parul Ghosh daughter of late Balay Chandra Ghosh
(f) Smt. Srisur daughter of Yogesh Chandra Ghosh
(g) Smt. Smriti Kunwar
(h) Pradeep Kumar Ghosh son of Suresh Chandra Ghosh
(i) Praveer Kumar Ghosh son of Suresh Chandra Ghosh
(j) Smt. Ira Pal wife of late Suresh Chandra Ghosh
On the said land, there was a two storied building, named as "Elokeshi
Dham". On the strength of the said power of attorney, said Chandra Bhushan
Ojha executed a sale deed bearing No.3415/3733 dated 05.12.1994 in favour
of the informant. The informant is also paying the holding tax of the aforesaid
holding. The informant stated that she is in peaceful possession over the said
land and at present "Mahadev Private ITI College" is functioning from the said
piece of land and there is one marriage house named as "Shiv Marriage
Palace". She alleges that the same land of Mouza Shyamganj, Thana No.413,
Jamabandi No.7/3385, Plot No.240, area 1 Bigha 3 Kathas 11 Dhurs (59605
sq. ft.) was again sold by one Sanjeev Kumar son of Binodanand Mishra and
one Kamal Narayan Jha son of late Biajnath Jha, being the power of attorney
holders of the heirs of the erstwhile original owners. Following are the details
of the power of attorney: -
(a) Sanjeev Kumar is the power of attorney holder of Smt. Era Pal
daughter of late Suresh Chandra Ghosh & wife of Panchanand
Ghosh vide power of attorney obtained on 22.05.2015;
(b) Kamal Narayan Jha is the power of attorney holder of
i. Smt. Smriti Kunwar daughter of Yogesh Chandra Ghosh
& wife of Pradip Kumar
ii. Smt. Srisur daughter of Yogesh Chandra Ghosh & wife
of Pravesh Sur
iii. Smt. Deepa Niyogi daughter of Ramesh Chandra Ghosh
& wife of Kumar Niyogi
iv. Jyotsa Ghosh wife of late Bhawesh Chandra Ghosh
v. Smt. Chandrima Pal daughter of late Bhawesh Chandra
Ghosh
vi. Smt. Lalima Ghosh daughter of late Bhawesh Chandra
Ghosh & wife of Satabrata Ghosh
vii. Manju Ghosh daughter of late Balay Chandra Ghosh &
wife of late Purnand Ghosh
viii. Surojit Ghosh son of Ashok Kumar Ghosh & late Parul
Ghosh
It is further stated in the First Information Report that all these power of
attorneys were registered in the Sub Registrar Office and other Offices in West
Bengal. It has been mentioned that these two persons, namely, Sanjeev
Kumar and Kamal Narayan Jha obtained power of attorney of all the above
persons and one Sujit Kumar Jha son of Ramanand Jha (Raman) and one
Amrit Singh son of Rajeshwar Singh were the witnesses to the power of
attorney.
It is alleged that on the strength of the aforesaid power of attorney, said
Sanjeev Kumar and Kamal Narayan Jha sold the same property to the
petitioner No.1 Online Entertainment Pvt. Ltd. vide registered deed No.770
dated 29.08.2019, of which the petitioner No.2 is the proprietor. It is alleged
that the property was sold in wrongful manner and on the basis of forged
documents. It is further mentioned in the First Information Report that Anamika
Gautam (petitioner No.2) had submitted an affidavit sworn before the Notary
Public, Deoghar, Sri Lalit Kumar Sinha, which was signed on 28.01.2019. In
the said affidavit, there is reference of two LPCs (Land Possession Certificate)
being (i) LPC No. 177 dated 23.01.2019 and (ii) LPC No. 1258 dated
27.08.2019. It is alleged that the said affidavit was placed at the time of
registration of the sale deed. Producing the said affidavit suggests forgery and
the malafide and criminal intention to commit fraud because the affidavit was
executed on 28.01.2019 wherein, no reference could have been given to the
LPC dated 27.08.2019. Further, from the affidavit, it would be clear that LPC
No.1258 dated 27.08.2019 has been extrapolated in the affidavit. Thus, the
entire document is a back dated one. Further, in the First Information Report it
has been mentioned that the Circle Officer, Deoghar in the letter No.177 has
given report that the Land Register II, Jamabandi No.13/3392, Plot No.240,
area 1 Bigha 3 Kathas 11 Dhurs is transferable. Again the Circle Officer,
Deoghar vide memo No.212 dated 28.01.2019, has nullified the letter No.177
dated 23.01.2019. Further another letter dated 27.08.2019 was issued by the
then Circle Officer, Sri Amar Prasad in his letter No.1258 wherein he intimated
that the land is transferable. Thus, according to the informant, these are the
contradictions. It is alleged that these letters are being used to transfer the
aforesaid land in favour of the petitioners by the power of attorney holder.
Further, it has been mentioned in the First Information Report that the
consideration price in the deed was shown as Rs.18,94,16,000/-, but, actually
payment of only Rs.3 crore has been made, that too in cash, which is against
the RBI Guidelines and against the Company Law. It has been mentioned that
the actual value of the land would be more than Rs.35 crore. It has been
alleged that when the actual value is Rs.35 crore, selling the said property at
Rs.3 crore creates a doubt. Further, it has been mentioned that as per the sale
deed, the area was shown as 50000 sq.ft., whereas the actual area is 59605
sq.ft., which has been purchased by the informant. On the basis of the
aforesaid allegations made in the First Information Report the petitioners have
been arraigned as accused for the offence punishable under Sections
Sections 467/468/471/420/511/120B of the Indian Penal Code and Section 82
of the Registration Act.
ARGUMENTS OF THE PETITIONERS
3. Mr. Mukul Rohatgi, learned Senior Counsel appearing for the petitioners
submits that the entire First Information Report is lodged with malice. He
submits that to wreak political vendetta, the present First Information Report
has been lodged. As per him, as the husband of the petitioner No.2 is a sitting
Member of Parliament from the Parliamentary Constituency of Godda and is
not from the ruling political party of the State, the present First Information
Report has been lodged. He submits that the petitioner No.2 is not the owner
of petitioner No.1, rather, is one of the directors as the petitioner No.1 is a
company registered under the Companies Act. He further submits that there is
no fraudulent transaction as the petitioner No.1 had paid stamp duty of
Rs.18,94,16,000/-, which was the prevailing circle rate at the relevant time. He
submits that as per the First Information Report, vendors had appointed
Sanjeev Kumar and Kamal Narayan Jha as their power of attorney, who had
executed sale in favour of petitioner No.1. He further submits that so far as the
allegation that the property was registered at a lower rate than the market
price is concerned, it is submitted that neither the vendor nor the vendee has
got any grievance. He submits that this allegation does not in any manner
constitute any criminal offence. He submits that the informant has suppressed
material facts as a First Information Report being 292 of 2005 for offence
punishable under Sections 465, 466, 467, 477, 420, 34 of the Indian Penal
Code was registered on the complaint of District Sub Registrar against the
informant and Chandra Bhushan Ojha (the power of attorney holder through
whom the informant had purchased the land). It has been mentioned that
challenging the said FIR, the informant had preferred Cr. M.P. No.1479 of
2005, which was dismissed by this High Court on 02.02.2012. He further
submitted that the fact of G.R. No.784 of 2005 against the informant and the
details thereof have been very cleverly suppressed by the informant. He
further submitted that admittedly, jamabandi in favour of the informant over the
land in question was opened on 29.01.2005 and the same was cancelled on
31.03.2005 by the Additional Collector, Deoghar on the ground that the title of
the land is in dispute. The cancellation was duly incorporated in Register II
maintained by the Office of the Circle Officer. Aggrieved by the said
cancellation, Kiran Devi had preferred miscellaneous appeal being Misc.
Appeal No.10 of 2005-06, which was also dismissed on 24.01.2018. It is
submitted that by concealing all these facts, the informant managed to get a
holding number in her favour from Deoghar Municipal Corporation, but, after
coming to know about the fraud played, the holding number was cancelled and
the notice was sent to the informant. Further, the Circle Officer, Deoghar
recommended cancellation of the sale deed through which Kiran Devi is
claiming ownership over the property. He submits that the aforesaid facts have
been suppressed. Learned senior counsel argues that in view of the aforesaid
fact, on the date of execution of the sale deed in favour of petitioner No.1,
there was no valid sale deed in favour of the informant nor she was the title
holder of the land. He submits that the dispute is absolutely civil in nature as
the informant has already filed a declaration suit bearing No.71 of 2019 before
the learned Civil Judge Senior Division cum Additional Chief Judicial
Magistrate, Deoghar and has also filed a Miscellaneous Civil Application
No.252 of 2019 for adding this petitioner No.1 as defendant therein. Further, a
Civil Miscellaneous Application No.253 of 2019 has been filed by the informant
praying for a decree of declaration to the effect that the sale deed No.770 of
2019 executed in favour of the petitioner be declared as void-ab-initio and
illegal. He further submits that the informant has got criminal antecedent and
several cases are pending against her and her husband. So far as the
allegation of extrapolation is concerned, he submits that it is an admitted case
of the parties that there are two LPCs, i.e., LPC No.177 dated 23.01.2019 and
LPC No.1258 dated 27.08.2019. He submits that it is also an admitted fact by
all the parties that both the LPCs were issued for the same land and contents
of both the LPCs are same. He submits that as the petitioner had to undergo
some medical treatment and at that time, application had lapsed, therefore, at
the instance of power of attorney holder, second LPC was prepared and a
fresh application was filed mentioning both the dates, i.e., 23.01.2019 and
27.08.2019. He submits that both the LPCs were sent directly to the Registrar
Office and Circle Office and there was departmental circulation, thus, there
was no question of interpolation. He submits that the second LPC bears the
reference of first LPC, thus, it cannot be said that the documents are forged.
He submits that merely adding the date of the second LPC in an already sworn
affidavit cannot be said to be an illegality or an act being criminal in nature,
rather the same is merely an irregularity. He relies upon the judgment of the
Supreme Court in the case of Sasikala Pushpa & Others versus State of
T.N. reported in (2019) 6 SCC 477. He submits that the allegation that there is
a loss to public exchequer is absolutely false. He submits that stamp duty was
paid at prevailing circle rate and thus, no fraud is committed upon the State.
He submits that the information of the entire transaction was given to the
Income Tax Department and the valuation of the land was done by an Income
Tax Registered Valuer and a report was obtained from him. He submits that
inspite of the fact that proper stamp duty was paid, the sale deed, which was
executed in favour of this petitioner No.1 was cancelled on 18.01.2021. He
submits that so far as cash transaction is concerned, the same cannot come
within the purview of the Indian Penal Code and in fact power of attorney
holder has no grievance against the petitioner, thus, the State cannot be said
to be at loss. He submits that no offence under Section 420 of the Indian Penal
Code is made out as there was no contract between the petitioner and the
informant and there is no question of inducing the informant. Admittedly, there
is no document, which is forged or manufactured, thus, Section 467, 468 and
471 of the Indian Penal Code are also not attracted. He submits that there was
no false or misleading representation on the side of the petitioners. He submits
that admittedly, from the First Information Report, itself, it is apparent that the
informant had purchased the land from a separate set of power of attorney
holders whereas the petitioner No.1 had purchased the land from absolutely a
different set of power of attorney holders. It is apparent from the First
Information Report that the case is absolutely civil in nature. He relies upon the
judgment of the Supreme Court in the case of B. Suresh Yadav versus
Sharifa Bee & Another reported in (2007) 13 SCC 107. He then heavily relies
upon the judgment of the Supreme Court in the case of Rajeshbhai Muljibhai
Patel & Others versus State of Gujarat & Another reported in (2020) 3 SCC
794 as also in the case of State of Haryana & Others versus Bhajan Lal &
Others, reported in 1992 Supp (1) SCC 335 in support of his contentions. He
further submits that the dispute is pending before the Civil Court in an
appropriate title suit, as such, continuance of present First Information Report
is nothing, but, an abuse of the process of the Court.
ARGUMENTS OF THE INFORMANT
4. Counsel appearing on behalf of the opposite party No.2-informant
submits that the land as per the FIR was recorded in the name of Nirmala Bala
Ghosh, who died sometime in the year 1970. He was succeeded by four sons
and two daughters. The informant purchased the said land through the power
of attorney holder, namely, Chandra Bhushan Ojha vide sale deed No.3415
dated 05.12.1994. Informant got her name recorded in the record of rights and
was paying rent, but, on 20.09.2005, a First Information Report was registered
being Deoghar Police Station Case No.292 of 2005, alleging therein that the
sale deed executed in her favour (informant of the FIR) appears to be
suspicious. The police submitted final form, but, the Court, disagreeing, had
taken cognizance. The matter is pending before this High Court in Cr. Revision
No.670 of 2016. He further argues that the informant was also served with a
notice on 25.06.2005 by the District Sub Registrar, Deoghar calling her to
submit an explanation with respect to the sale deed executed in her favour on
05.12.1994. The said action was challenged in W.P.(C) No.3682 of 2005 and
the High Court vide order dated 01.07.2014 made observation that the District
Sub Registrar does not have any authority to cancel the sale deed and,
therefore, the notice is bad in law. It has been mentioned that the petitioner,
having greedy eyes on the said property, got the sale deed executed in her
favour vide sale deed No.770 dated 29.08.2019. As per the informant, since
the sale deed, which was executed in her favour, was still existing, no sale
deed could have been executed in favour of the petitioners. He submitted that
the petitioner was in exclusive possession of the land, however, Land
Possession Certificate (LPC) was issued by the authority on the ground that
the jamabandi created in favour of the informant has been cancelled. Counsel
for the informant, further states that the informant's jamabandi was cancelled
for which a miscellaneous appeal being Miscellaneous Appeal No.10 of 2005-
06 was also filed, which was rejected vide order dated 24.01.2019. Aggrieved
by the said order, the informant has preferred a writ application before this
High Court being W.P.(C) No.3069 of 2018, in which notices were issued. It
has been further argued that the petitioner had full knowledge about the sale
deed executed in favour of the petitioner and had also knowledge that the
cancellation of the Jamabandi in favour of the informant is under challenge in
W.P.(C) No.3069 of 2018. As per him, knowing these facts fully, the
petitioners, with a malafide intention had purchased the aforesaid land. He
submits that the LPC issued on 23.01.2019 was withdrawn on 28.01.2019 and
thus, issuing the subsequent LPC dated 27.08.2019 taking into consideration
the earlier LPC is bad and as the husband of the petitioner No.2 is an
influential person, these acts have been done. He submits that there is an
interpolation in the affidavit dated 28.01.2019 as there is a reference of second
LPC without mentioning the LPC number. He further submits that the
transaction was made in cash, which is not permissible. He submits that the
interpolation and extrapolation make out a case of forgery and even if there is
a civil essence in the entire transaction, the criminal case is not barred. He
relies on the judgment of the Supreme Court in the case of State of
Maharashtra versus Sayed Mohammed Masood & Another reported in
(2009) 8 SCC 787.
ARGUMENTS ON BEHAF OF THE STATE
5. Learned Senior Counsel Mr. Dushyant Dave, appearing on behalf of the
State, submitted that the First Information Report suggests serious criminal
offences. He submits that the investigation cannot be stalled. He submits that
the State has constituted a Special Investigation Team consisting of five
persons. He submits that as per the investigating team, it came to light that on
23.01.2019, vide letter No.177 LPC was issued, which was later on repealed
vide letter dated 27.01.2019 and again vide letter No.1258 dated 27.08.2019
LPC was issued. He submits that the Circle Officer did not verify the Register II
before issuing the LPC, rather connived with the petitioners. He submits that
sale deed dated 29.08.2019 is a sham document, which does not confer any
title to the petitioners. He submits that the owners/vendors, during
investigation, had stated that they are not aware of the sale transaction and
the original owners, when examined, during investigation, have stated that
they have received paltry amount of Rs.7.5 lakh, Rs.2 lakh and Rs.10 lakh
while Chandrima Pal and Surajit Ghosh have stated that they have not
received any money from the power of attorney holders. He submitted that the
owners stated that they have not received any money from the power of
attorney, namely, Sanjeev Kumar, Kamal Narayan Jha or Sujit Kumar Jha. On
this basis, he submits that the entire transaction of sale is sham as no
consideration money was ever paid to the vendors or the land owners. He
submits that the owners have not received consideration money and this
appears to be a case of land grabbing. It is his case that the sale deed dated
29.08.2019 is a false document. Further, he submits that one of the vendors,
namely, Smriti Kumari had expired on 16.08.2019 in West Bengal prior to the
alleged execution of the sale deed. He further submits that the power of
attorney holder has also stated that he has received no amount from the
petitioner. He further submits that huge amount has been paid in cash, which
is absolutely illegal. He submits that a date '27.08.2019' is handwritten, which
is extrapolated in the affidavit sworn, which was presented at the time of
registration of the sale deed. He submits that an affidavit sworn on 28.01.2019
cannot possibly refer to an LPC which was subsequently issued on
27.08.2019. He also submits that during investigation, it has been found that
the Circle Officer, without verifying Register II, has issued LPC and the
physical verification in respect of the possession was also not done, which
clearly proves the deep routed conspiracy. He further submits that the Circle
Officer, in his statement recorded under Section 161 of the Code of Criminal
Procedure, has stated that he filled up the affidavit on 28.01.2019 without
knowing the seller or purchaser. Thus, as per the State, it shows that the
affidavit was extrapolated and altered. It is his submission that similar type of
transaction was entered into with another company where the modus operandi
was same and the same was unearthed during investigation. It is submitted
that since the investigation is going on and allegations are serious, the First
Information Report should not be quashed. It is submitted that the case does
not fall within the exceptions of the judgment passed by the Hon'ble Supreme
Court in the case of State of Haryana & Others versus Bhajan Lal &
Others, reported in 1992 Supp (1) SCC 335. In support of his submissions, he
refers to the following judgments:-
(a) Director, Central Bureau of Investigation & Others versus
Niyamavedi & Others [(1995) 3 SCC 601]
(b) S.M. Datta versus State of Gujarat & Another [(2001) 7 SCC
659]
(c) State of Orissa & Others versus Ujjal Kumar Burdhan
[(2012) 4 SCC 547]
(d) P. Chidambaram versus Directorate of Enforcement
[(2019) 9 SCC 24]
(e) Somay Soren & Others versus The State of Jharkhand &
Another [Cr. M.P. No.78 and 263 of 2016]
It is submitted that in exercise of jurisdiction under Section 482 of the
Code of Criminal Procedure, the High Court cannot quash the First Information
Report where an offence is made out.
LEGAL PROVISIONS IN RESPECT OF QUASHMENT OF AN FIR
6. Chapter XII of the Code of Criminal Procedure (hereinafter referred to as
'the Code') deals with information to the police and their power to investigate.
Section 154 of the Code under the said chapter, deals with an offence, which
are cognizable in nature, whereas Section 155 of the Code deals with
information as to non-cognizable cases and investigation of such cases.
Section 156 of the Code deals with the police officer's power to investigate
cognizable cases. A First Information Report is registered under Section 154
of the Code in relation to cognizable offences. When a cognizable offence is
reported to the police, the police officer has to register a First Information
Report and proceed for investigation. The Hon'ble Supreme Court in the case
of Lalita Kumari versus Government of U.P. & Others reported in (2014) 2
SCC 1 has held that registration of FIR is mandatory under Section 154 CrPC,
if the information discloses commission of cognizable offence and no
preliminary enquiry is permissible in such a situation. It has been further held
that a police officer cannot avoid his duty of registering an FIR if cognizable
offence is disclosed. As per the said judgment, if the offence so reported is
non-cognizable in nature, then before registering an FIR, a preliminary enquiry
can be conducted only to ascertain as to whether cognizable offence is
disclosed or not. The scope of such enquiry is not to verify the veracity or
otherwise of the information so received, but only to ascertain whether the
information reveals any cognizable offence or not. Thus, from the aforesaid
judgment, it can be very well understood that when on basis of a written report
on its face value, a cognizable offence is made out, an FIR under Section 154
of the Code has to be instituted. Once an FIR under Section 154 of the Code
is instituted on an information which makes out a cognizable offence, in terms
of Section 156 of the Code, the police have to proceed with the investigation
without the order of the Magistrate.
7. In this context, it may be taken note of that if an offence is non-
cognizable in nature and is reported to the police, the police, after entering the
substance of information in a book kept by the officer, as prescribed, has to
refer the informant to the Magistrate in terms of Section 155 of the Code.
Further, Section 155(2) of the Code mandates that a police officer, without a
specific order from the Magistrate, cannot investigate a non-cognizable
offence. Sub Section (4) of Section 155 of the Code provides that if a case
relates to both cognizable and non-cognizable offences, then the case shall be
deemed to be of cognizable in nature.
8. From the aforementioned provision of law and the judgment rendered by
the Hon'ble Supreme Court in the case of Lalita Kumari (supra), it is clear
that registration of FIR in cognizable offence is mandatory and the police gets
jurisdiction to investigate an offence without the permission of the Magistrate
only if the offence are cognizable in nature.
9. The case in hand is in relation to quashing of the FIR. The FIR has been
registered for offence, which are cognizable in nature. As the police has
jurisdiction to investigate the offence without the permission of the Magistrate
in this case, quashing of the FIR will mean quashing of the investigation also.
10. The Hon'ble Supreme Court, in 1960 in the case of R.P. Kapur versus
State of Punjab reported in AIR 1960 SC 866 (at paragraph 6) has indicated
that a criminal proceeding can be quashed if the case being dealt with falls in
the given category of cases. Paragraph 6 of the said judgment reads as
under:-
6. .....................However, we may indicate some
categories of cases where the inherent jurisdiction can
and should be exercised for quashing the proceedings.
There may be cases where it may be possible for the High
Court to take the view that the institution or continuance of
criminal proceedings against an accused person may
amount to the abuse of the process of the Court or that the
quashing of the impugned proceedings would secure the
ends of justice. If the criminal proceeding in question is in
respect of an offence alleged to have been committed by
an accused person and it manifestly appears that there is a
legal bar against the institution or continuance of the said
proceeding the High Court would be justified in quashing
the proceeding on that ground. Absence of the requisite
sanction may, for instance, furnish cases under this
category. Cases may also arise where the allegation in the
first information report or the complaint, even if they are
taken at their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases no
question of appreciating evidence arises; it is a matter
merely of looking at the complaint or the first information
report to decide whether the offence alleged is disclosed
or not. In such cases it would be legitimate for the High
Court to hold that it would be manifestly unjust to allow
the process of the criminal court to be issued against the
accused person. A third category of cases in which the
inherent jurisdiction of the High Court can be successfully
invoked may also arise. In cases falling under this
category the allegations made against the accused person
do constitute offence alleged but there is either no legal
evidence adduced in support of the case or evidence
adduced clearly or manifestly fails to prove the charge. In
dealing with this class of cases it is important to bear in
mind the distinction between a case where there is no
legal evidence or where there is evidence which is
manifestly and clearly inconsistent with the accusation
made and cases where there is legal evidence which on its
appreciation may or may not support the accusation in
question. In exercising its jurisdiction under Section 561-A
the High Court would not embark upon an enquiry as to
whether the evidence in question is reliable or not. That is
the function of the trial Magistrate, and ordinarily it would
not be open to any party to invoke the High Court's
inherent jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made against
the accused would not be sustained. Broadly stated that is
the nature and scope of the inherent jurisdiction of the
High Court under Section 561-A in the matter of quashing
criminal proceedings and that is the effect of the judicial
decisions on the point.
11. In the case of State of Haryana & Others versus Bhajan Lal &
Others, reported in 1992 Supp(1) SCC 335, the Hon'ble Supreme Court has
laid down guidelines for exercising inherent powers to quash a First
Information Report. After discussing the law and the several judgments, the
Hon'ble Supreme Court, in paragraph 102 of the said judgment has laid down
the following principles when an FIR can be quashed: -
(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.
12. In the aforesaid judgment, the Hon'ble Supreme Court has held that the
High Court is entitled to exercise its inherent jurisdiction for quashing the
criminal procedure or a First Information Report, when the allegations made in
the First Information Report do not disclose commission of a cognizable
offence. Whether a First Information Report has to be quashed or not depends
on particular facts of each case.
13. Further, in the case of Prashant Bharti versus State (NCT of Delhi)
reported in (2013) 9 SCC 293, the Hon'ble Supreme Court at paragraph 22,
while referring to the case of Rajiv Thapar & Others versus Madan Lal
Kapoor reported in (2013) 3 SCC 330 has quoted paragraphs 30 to 30.5
wherein the Supreme Court has delineated the following steps to determine
the veracity of a prayer for quashing the criminal proceeding raised by an
accused by invoking the power vested under Section 482 of the Code: -
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing raised by
an accused by invoking the power vested in the High Court
under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable and indubitable i.e. the
material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the
charges levelled against the accused i.e. the material is
sufficient to reject and overrule the factual assertions
contained in the complaint, i.e., the material is such, as
would persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution /
complainant; and/or the material is such, that it cannot be
justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would
result in an abuse of process of the Court and would not
serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative,
judicial conscience of the High Court should persuade it to
quash such criminal proceedings in exercise of power
vested in it under Section 482 CrPC. Such exercise of
power, besides doing justice to the accused, would save
precious court time, which would otherwise be wasted in
holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same would
not conclude in the conviction of the accused.
14. In the case of Union of India versus Prakash P. Hinduja & Another
reported in (2003) 6 SCC 195, the Hon'ble Supreme Court, after considering
the judgments, including the judgment of Bhajan Lal (supra) has held that
Section 482 of the Code can be exercised to quash the criminal proceeding in
following cases: -
1. Where the allegations made in the FIR or 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 uncontroverted allegations made in the
FIR or the 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
3. Where there is an express legal bar engrafted in any
of the provisions of the Code of Criminal Procedure
or the Act concerned to the institution and
continuance of the proceedings. But this power has
to be exercised in a rare case and with great
circumspection.
15. In the case of Rupan Deol Bajaj (MRS) & Another versus K.P.S. Gill
& Another, reported in (1995) 6 SCC 194, the Hon'ble Supreme Court, at
paragraph 23, has observed and held that:-
"................. - a settled principle of law that at the
stage of quashing an FIR or complaint the High Court
is not justified in embarking upon an enquiry as to
the probability, reliability or genuineness of the
allegations made therein....."
16. Similarly, in the case of Rajesh Bajaj versus State (NCT of Delhi) &
Others, reported in (1999) 3 SCC 259, at paragraph 9, the Hon'ble Supreme
Court has held as under: -
9. It is not necessary that a complainant should
verbatim reproduce in the body of his complaint all
the ingredients of the offence he is alleging. Nor is it
necessary that the complainant should state in so
many words that the intention of the accused was
dishonest or fraudulent. Splitting up of the definition
into different components of the offence to make a
meticulous scrutiny, whether all the ingredients have
been precisely spelled out in the complaint, is not the
need at this stage. If factual foundation for the
offence has been laid in the complaint the court
should not hasten to quash criminal proceedings
during investigation stage merely on the premise that
one or two ingredients have not been stated with
details. For quashing an FIR (a step which is
permitted only in extremely rare cases) the
information in the complaint must be so bereft of
even the basic facts which are absolutely necessary
for making out the offence. In State of Haryana v.
Bhajan Lal the Court laid down the premise on which
the FIR can be quashed in rare cases. The following
observations made in the aforesaid decisions are a
sound reminder (SCC p. 379, para 103)
"103. We also give a note of caution to the effect
that the power of quashing a criminal proceeding
should be exercised very sparingly and with
circumspection and that too in the rarest of rare
cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made
in the FIR or the complaint and that the
extraordinary or inherent powers do not counter
an arbitrary jurisdiction on the court to act
according to its whim or caprice"
17. In the case of Medchi Chemicals & Pharma (P) Ltd. versus
Biological E Ltd. & Others reported in (2000) 3 SCC 269, in paragraph 2, the
Hon'ble Supreme Court has held as under:-
2. Exercise of jurisdiction under the inherent power
as envisaged in Section 482 of the Code to have the
complaint or the charge-sheet quashed is an
exception rather than a rule and the case for
quashing at the initial stage must have to be treated
as rarest of rare so as not to scuttle the prosecution.
With the lodgement of first information report the ball
is set to roll and thenceforth the law takes its own
course and the investigation ensues in accordance
with the provisions of law. The jurisdiction as such is
rather limited and restricted and its undue expansion
is neither practicable nor warranted. In the event,
however, the court on a perusal of the complaint
comes to a conclusion that the allegations levelled in
the complaint or charge-sheet on the face of it does
not constitute or disclose any offence as alleged,
there ought not to be any hesitation to rise up to the
expectation of the people and deal with the situation
as is required under the law. Frustrated litigants
ought not to be indulged to give vent to their
vindictiveness through a legal process and such an
investigation ought not to be allowed to be continued
since the same is opposed to the concept of justice,
which is paramount.
18. From the law laid down by the Hon'ble Supreme Court, which has been
cited hereinabove, it is clear that an FIR can be quashed invoking inherent
jurisdiction, if the allegations made in the First Information Report taken at their
face value do not constitute the offence as alleged. Further, it is also clear that
this power has to be exercised very sparingly. At the stage of quashing an FIR
or complaint the High Court is not justified in embarking upon an enquiry as to
the probability, reliability or genuineness of the allegations made therein, nor
can weigh the allegations, neither shift the burden. The statements made in
the FIR have to be taken on their face value and accepting those statements
to be true, the Court has to judge as to whether any offence, as alleged, is
made out or not. If on the face value, an offence is made out, the FIR cannot
be quashed. This means that if an offence, or an offence, as alleged, is not
made out from bare perusal of the FIR, the FIR can be quashed to prevent the
abuse of the process of the Court.
19. The aforesaid principle in relation to quashing of the FIR has been
consistently held and reiterated by the Hon'ble Supreme Court in catena of
judgments.
ANALYSIS AND FINDINGS
20. Keeping in view the aforesaid established principles in relation to
quashing of an FIR and the principles as to how the Court has to exercise the
inherent jurisdiction including its limitation, now it is to be seen in the instant
case as to whether the narration of facts, which have been made in the First
Information Report, make out any offence or any cognizable offence and
whether any case has been made out to quash the First Information Report
and the investigation, or not.
21. During course of argument, a specific question was put to the parties as
to whether the sale deed dated 29.08.2019, by which the petitioner No.1
claims to have purchased the property, exists or not and whether the said
document has been registered or not. All the parties admitted existence of the
said document and also admitted that the said sale deed is registered.
22. Another question was put to the parties about the existence of two
LPCs, reference whereof finds place in the affidavit dated 28.01.2019 being
LPC No.177 dated 23.01.2019 and LPC No.1258 dated 27.08.2019. All the
parties admitted existence of the said two LPCs. It is not the case of any of the
parties that these two LPCs were not issued at all and these documents have
been manufactured.
23. Now, in view of the penal Sections under which the FIR is registered, it
has to be seen whether the facts and the allegations made in the FIR attracts
any of the offences so alleged, or the basic ingredients of the offences, as
enumerated above are there in the facts narrated in the FIR. In simple words,
it is to be seen whether any offence mentioned in the FIR fulfills the aforesaid
ingredients of the penal provision or not. This has to be on the basis of the
narration made in the FIR itself.
24. From the First Information Report and the submission of the parties, I
find the following facts, which are admitted: -
A. There exists a sale deed, which is a registered document
executed on 29.08.2019, by which the power of attorney
holders, namely, Sanjeev Kumar and Kamal Narayan Jha
sold the land in favour of the petitioner No.1.
B. It is not disputed that the persons, who executed the sale
deed are the power of attorney holders.
C. It is also not the case of any of the parties that some
imposters have executed the sale deed as power of
attorney holders, nor it is a case of impersonation.
D. Existence of LPCs being LPC No.177 dated 23.01.2019
and LPC No.1258 dated 27.08.2019 is admitted.
E. Affidavit dated 28.01.2019, which has been duly signed is
not in dispute.
25. The allegations, which is born out from the First Information Report and
the arguments are that: -
A. The land in question was purchased by the informant
through power of attorney holder, namely, Chandra
Bhushan Ojha in the year 1994 and the same land was
purchased by the petitioners, which was sold by the
power of attorney holders, namely, Sanjeev Kumar and
Kamal Narayan Jha vide registered sale deed No. 770
dated 29.08.2019. Thus, the informant has been
cheated.
B. The affidavit dated 28.01.2019 contains reference of two
LPCs, one being LPC No.177 dated 23.01.2019 and the
second being LPC No.1258 dated 27.08.2019. As the
second LPC has been issued on much later date than
the swearing date of the affidavit, the same could not
have been incorporated in the affidavit dated
28.01.2019, thereby the affidavit seems to be
manufactured and forged document.
C. There is a huge cash transaction, which is absolutely
illegal and the same is a criminal offence.
D. The sale deed was not properly valued.
26. The aforesaid are the allegations levelled in the First Information Report,
whereas, during arguments, counsel for the State came up with some new
facts, which is not there in the First Information Report and according to him,
the said facts are gathered during investigation and also constitutes an
offence. The new facts are as follows:-
A. The original vendors have stated that they have not
received any money in lieu of sale from the power of
attorney holders. (but, surprisingly, in the written notes
the original land owners have stated that some amount
has been paid to them).
B. In connivance with the petitioners, the LPCs were issued
by the officials, which could not have been issued.
C. Power of Attorney Holders says that he has not received
any money from the petitioners in lieu of the sale, rather
the money which he has received was in respect of
some other transaction.
27. The case of the opposite parties is that since LPC No.177 dated
23.01.2019 was cancelled on 28.01.2019, the second LPC being LPC
No.1258 dated 27.08.2019 could not have been issued.
28. It has been admitted by the informant that the LPC, which stood in her
favour including the jamabandi were cancelled. Miscellaneous Appeal
challenging the said cancellation was also dismissed and the writ petition is
pending before this High Court. It is also evident from the First Information
Report that the land was sold to these petitioners vide sale deed No.770 dated
29.08.2019 executed by Sanjeev Kumar and Kamal Narayan Jha, who
claimed to be the power of attorney holders of the original land owners. There
is no allegation that some imposters have executed the deed nor there is
allegation that there is no existence of the registered sale deed. If that be so,
at best, it can be said that the petitioners have purchased a land from the
persons, who did not have any valid right, title, interest or possession over the
property. In the alternative, it can be said that the power of attorney holders
has sold a land to the petitioner No.1 without having any title nor the owners
had any title.
29. The First Information Report, as narrated above, has been registered
under Sections 467, 468, 471, 420 read with Sections 511 and 120B of the
Indian Penal Code and Section 82 of the Registration Act of 1908.
30. Section 467 of the Indian Penal Code provides for punishment for
forgery of valuable security, will, etc., which reads as under: -
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.
31. Section 468 of the Indian Penal Code provides for punishment for
forgery for purpose of cheating, which reads as under: -
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 a term which may
extend to seven years, and shall also be liable to fine.
32. Section 471 of the Indian Penal Code provides for punishment for using
as genuine a forged document or electronic record, which reads as under: -
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.
33. What are the ingredients which are essential for commission of an
offence under Section 467 of the Indian Penal Code, has been highlighted by
the Hon'ble Supreme Court in the case of Inder Mohan Goswami & Another
versus State of Uttaranchal & Others reported in (2007) 12 SCC 1. As per
paragraph 44 of the said judgment, the following are the ingredients:-
a) the document in question so forged;
b) accused, who forged it;
c) document is one of the kinds enumerated in Section
467;
34. Essentials of Section 468 of the Indian Penal Code is that:-
a) there should be a forged document or electronic
record;
b) an intention to use the said forged document for the
purpose of cheating;
35. Essentials of Section 471 of the Indian Penal Code is that
a) document should be forged;
b) the person using the forged document, must use the
said document, fraudulently or dishonestly, using the
forged document as genuine;
c) person doing so, must know or has reasons to
believe that the document is forged;
36. From analysing these three Sections of the Indian Penal Code, I find
that the pivotal point is 'forgery' of a document or an electronic record. This
means to attract these sections, there has to be a forged document or an
electronic record. Forgery is defined in Section 463 of the Indian Penal Code.
For better appreciation, provision of the said Section is quoted hereinbelow:-
463. Forgery - Whoever makes any false documents
or false electronic record or part of a document or
electronic record, 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 any express or implied
contract, or with intent to commit fraud or that fraud
may be committed, commits forgery.
37. From bare perusal of the same, I find that there are some essentials /
ingredients of 'forgery' as defined in Section 463. These essentials are
a) making of a false document or false electronic
record, in full or in part;
b) the said making should be with an intention to cause
damage or injury to public or to any person;
Or
c) to support any claim or title;
Or
d) to enter into any express or implied contract;
Or
e) with intention to commit fraud or fraud may be
committed.
38. From analysis of the aforesaid provision, I find that there has to be
making of a false document or false electronic record with an intention to
cause damage to public or to any person or for the other purposes specified in
the aforesaid Section, as mentioned above.
39. So, for the purpose of forgery as mentioned in Section 467, 468 and 471
of the Indian Penal Code read with the definition, i.e., Section 463 of the Indian
Penal Code, there has to be an existence / making of a false document. What
is making of a false document is enumerated in Section 464 of the Indian
Penal Code. For better appreciation, it is necessary to quote Section 464 of
the Indian Penal Code, which reads as under:-
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 electronic signature on any electronic
record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that
such document or part of document, electronic
record or electronic 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 electronic signature either
by himself or by any other person, whether such
person be living or dead at the time of such
alteration; 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 electronic
signature on any electronic record knowing that such
person by reason of unsoundness of mind or
intoxication cannot, or that by reason of deception
practiced upon him, he does not know the contents
of the document or electronic record or the nature of
the alteration.
40. From the aforesaid provision of law, I find that there are three modes, by
which a false document or electronic record can be made. If we carefully read
the three modes, I find that merely making affixing or cancelling or altering or
putting seal, sign etc. etc., by itself, is not sufficient. Doing such acts, which is
mentioned in 'first', 'secondly' or 'thirdly' clause, must be dishonestly or
fraudulently. This finds support from the fact that in all these three clauses, the
legislature has used the word 'dishonestly' or 'fraudulently'. It is quite clear
from perusal that the person, who is doing such act, must do the same,
dishonestly or fraudulently. Thus, the element of 'dishonestly' and 'fraudulently'
must be present, while making a false document. If only making of a document
could have qualified to be making of a false document in terms of Section 464
of the Indian Penal Code, then in all the three clauses, there would not have
been any occasion for the legislature to put the words, 'dishonestly' or
'fraudulently'.
41. The word 'dishonestly' and 'fraudulently' has been defined in Indian
Penal Code itself. Section 24 of the Indian Penal Code defines 'dishonestly'
as under: -
24. "Dishonestly" - Whoever does anything with the
intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that
thing "dishonestly".
42. From bare perusal of the aforesaid Section, it is clear that something
has to be done with an intention to cause wrongful gain to one person and
wrongful loss to other.
43. Similarly, Section 25 defines the word 'fraudulently', which is as
under:-
25. "Fraudulently" - A person is said to do a thing
fraudulently if he does that thing with intent to
defraud but not otherwise.
44. From the aforesaid Section, I find that a person has to do a thing with
intent to defraud, but not otherwise. This means if an act is done without an
intention to defraud, the same cannot be said to have been done 'fraudulently'.
45. Thus, making of a document must be with an intention to cause wrongful
gain to one person and wrongful to another or making of such document must
be done with an intention to defraud. In absence of this fraudulent or dishonest
intention, Section 464 of the Indian Penal Code will not be attracted.
46. Another Section of the Indian Penal Code under which the FIR has been
lodged is Section 420 of the Indian Penal Code. Section 420 of the Indian
Penal Code is the punishment for cheating. Cheating is defined in Section 415
of the Indian Penal Code. Section 415 is quoted hereinbelow: -
415. Cheating - Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any person shall retain any property, or
intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if
he were not so deceived, and which act or omission
causes or is likely to cause damage or harm to that
person in body, mind, reputation or property, is said
to "cheat".
47. The requirement of Section 415 IPC has been set forth in paragraph 41
of the judgment rendered in the case of Inder Mohan Goswami (supra) by
the Hon'ble Supreme Court. Paragraph 41 reads as under: -
41. Section 415 IPC thus requires -
1. Deception of any person
2. (a) Fraudulently or dishonestly inducing that
person-
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any
property; or
(b) Intentionally inducing that person to do or omit to
do anything which he would not do or omit if he were
not so deceived, and which act or omission causes
or is likely to cause damage or harm to that person in
body, mind, reputation or property.
48. The Hon'ble Supreme Court, in the aforesaid judgment, in paragraph 42,
has analysed as to what are the separate classes of the acts, which would
attract the aforesaid provision of the law. It is necessary to quote paragraph 42
of the aforesaid judgment rendered by the Hon'ble Supreme Court in the case
of Inder Mohan Goswami (supra):-
42. On a reading of the aforesaid section, it is
manifest that in the definition there are two separate
classes of acts which the person deceived may be
induced to do. In the first class of acts he may be
induced fraudulently or dishonestly to deliver
property to any person. The second class of acts is
the doing or omitting to do anything which the
person deceived would not do or omit to do if he
were not so deceived. In the first class of cases, the
inducing must be fraudulent or dishonest. In the
second class of acts, the inducing must be
intentional but need not be fraudulent or dishonest.
Therefore, it is the intention which is the gist of the
offence. To hold a person guilty of cheating it is
necessary to show that he had a fraudulent or
dishonest intention at the time of making the
promise. From his mere failure to subsequently keep
a promise, one cannot presume that he all along had
a culpable intention to break the promise from the
beginning.
49. The other Sections of the Indian Penal Code, which has been
mentioned in the FIR is Section 511 of the Indian Penal Code, which is
punishment for attempting to commit offences punishable with imprisonment
for life or other imprisonment; and Section 120B, which is a punishment for
criminal conspiracy. Sub Section (1) of the aforesaid Section provides for
punishment to a party to a criminal conspiracy to commit an offence
punishable with death, life imprisonment or rigorous imprisonment for two
years or upwards and sub Section (2) is in relation to offences, which is not
covered in the Sub Section (1). Thus, there should be an offence committed to
attract Section 120B of the Indian Penal Code.
50. Another penal provision, which has been mentioned in the FIR is
Section 82 of the Registration Act of 1908. Section 82 of the Registration Act,
1908 reads as follows: -
82. Penalty for making false statements, delivering
false copies of translations, false personation, and
abetment - Whoever -
(a) intentionally makes any false statement, whether
on oath or not, and whether it has been recorded or
not, before any officer acting in execution of this Act,
in any proceeding or inquiry under this Act; or
(b) intentionally delivers to a registering officer, in
any proceeding under section 19 or section 21, a
false copy or translation of a document, or a false
copy of a map or plan; or
(c) falsely personates another, and in such assumed
character presents any document, or makes any
admission or statement, or causes any summons or
commission to be issued, or does any other act in
any proceeding or enquiry under this Act; or
(d) abets anything made punishable by this Act,
Shall be punishable with imprisonment for a term
which may extend to seven years, or with fine, or with
both.
51. The basic ingredients of the aforesaid Section is that (i) someone has to
intentionally make a false statement, whether on oath or not before any officer
acting in execution of this Act in any proceeding or enquiry. OR (ii) intentionally
delivers to a registering officer in any proceeding under Section 19 or 21 of the
Act a false copy or a translation of a document or map; (iii) falsely
impersonates and presents any document or does any act in enquiry or
proceeding; (iv) abates anything which is punishable under the Act. Thus, here
has to be a false statement or delivering a false copy or translation or map OR
impersonation to attract Section 82 of the Registration Act or the person
should have abated anything, which is punishable under the Act.
52. From the admitted facts of this case, which is apparent from the FIR and
the arguments of the parties, the sale deed, by which the petitioners have
purchased the land does exist and has also been registered. Thus, the sale
deed is not a forged document within the meaning of Section 463 and 464 of
the Indian Penal Code to attract punishment under Sections 467, 468 and 471
of the Indian Penal Code. The sale deed, at best, may not have conveyed a
proper valid title to the petitioner No.1, but, that does not mean that the sale
deed is forged.
53. The issue involved here, more or less, has been set at rest by the
Hon'ble Supreme Court in the case of Md. Ibrahim & Others versus State of
Bihar & Another reported in (2009) 8SCC 751. In the aforesaid case of Md.
Ibrahim (supra) I find that there was an allegation that without having any
connection with the land and without having any title, a person, having no title
thereto, had executed and registered sale deeds in favour of other persons. In
that case, the seller was an accused, so were the purchasers, who purchased
the property. The aforesaid case, on amongst other sections, was registered
under Sections 420, 467, 471 of the Indian Penal Code. The facts of selling
someone's property by another person, who does not have any title, is similar
to this case also. In the aforesaid judgment, the Hon'ble Supreme Court in
paragraphs 13 to 16 has discussed as to what is the condition precedent for
an offence under Section 467 and 471 of the Indian Penal Code. In paragraph
14, the Hon'ble Supreme Court has held that a person is said to have made a
"false document", if (i) he made or executes a document; 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.
54. Admittedly, the sale deed executed in favour of the petitioner No.1 of
which petitioner No.2 is a director, clearly and certainly do not fall under the
category of false document, as it is an admitted case that the document was
not executed by 'X' claiming him to be 'Y' (i.e., impersonation) nor it is a case
that the power of attorney holders, who had executed the sale deed in favour
of the accused, did not have such power to do so, nor it is the case that there
is alteration or tampering in the sale deeds, nor there is allegation that by
practicing deception, the document was obtained.
55. More or less, in the similar circumstances as in this case, where the
allegation is that the informant's land has been sold illegally to the petitioner
No.1, the Hon'ble Supreme Court in the case of Md. Ibrahim (supra), in
paragraph 16 and 17, has dealt with the issue and has held as under:-
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 authorized 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 no 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.
56. The Hon'ble Supreme Court in the aforesaid case has also dealt with as
to whether Section 420 of the Indian Penal Code will be applicable or not. In
paragraph 19 of the said judgment, the Hon'ble Supreme Court has held that
to constitute an offence under Section 420, there should not only be cheating,
but, as a consequence of cheating, the accused should have dishonestly
induced the person deceived (i) to deliver any property to any one; 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).
57. In the instant case, it is an admitted fact that the petitioner No.1 is the
purchaser of the property and the petitioner No.2 is its director. The sale deed,
through which the petitioner No.1 has purchased the property, is alleged to
have conveyed the title of the property to the petitioners. The sale deed was
executed through power of attorney holders of the original land owners. The
informant's allegation is that she has purchased the land through different
power of attorney holders of the original land owners, prior to execution of the
sale deed, which is the subject matter of this case. Admittedly, there is no
transaction between the petitioner accused and the informant, nor there was
any representations or communications between them.
58. This situation was dealt with by the Hon'ble Supreme Court in the same
judgment in paragraphs 20 to 23, which read as under: -
20. When a sale deed is executed conveying a
property claiming ownership thereto, it may be
possible for the purchaser under such sale deed to
allege that the vendor has cheated him by making a
false representation of ownership and fraudulently
induced him to part with the sale consideration. But
in this case the complaint is not by the purchaser. On
the other hand, the purchaser is made a co-accused.
21. It is not the case of the complainant that any of
the accused tried to deceive him either by making a
false or misleading representation or by any other
action or omission, nor is it his case that they offered
him any fraudulent or dishonest inducement to
deliver any property or to consent to the retention
thereof by any person or to intentionally induce him
to do or omit to do anything which he would not do
or omit if he were not so deceived. Nor did the
complainant allege that the first appellant pretended
to be the complainant while executing the sale deeds.
Therefore, it cannot be said that the first accused by
the act of executing sale deeds in favour of the
second accused or the second accused by reason of
being the purchaser, or the third, fourth and fifth
accused, by reason of being the witness, scribe and
stamp vendor in regard to the sale deeds, deceived
the complainant in any manner.
22. As the ingredients of cheating as stated in
Section 415 are not found, it cannot be said that there
was an offence punishable under Sections 417, 418,
419 or 420 of the Code.
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.
59. Further, the term "fraudulently defrauded" has been analysed by the
Hon'ble Supreme Court in the said judgment.
60. Further, in the present case, I find that it is an admitted case of the
informant, which bore out during the arguments advanced by him and also
from the written arguments that her jamabandi was cancelled for which a civil
suit is pending before the competent Court and in the said civil proceeding, the
sale deed executed in favour of this petitioner is also under challenge. It is also
evident that before executing and registering the sale deed in favour of
petitioner No.1, the jamabandi of the informant already stood cancelled.
61. The facts, aforesaid, and also from the judgment of the Hon'ble
Supreme Court in the case of Md. Ibrahim (supra) clearly suggests that so far
as the execution of sale deed in favour of petitioner No.1 is concerned, the
same lacks ingredients of Sections 420, 467, 468, 471 of the Indian Penal
Code.
62. So far as the allegation that the affidavit sworn by the petitioner No.2,
i.e., affidavit dated 28.1.2019 before the Notary is concerned, I find that there
is an allegation that the reference of LPC dated 27.8.2019 has been
incorporated in the said affidavit, which was sworn on 28.01.2019. It is the
case of the informant and the State that the reference of the said LPC has
been extrapolated in the affidavit at a later stage. It may be noted here that in
the said affidavit, there is reference of another LPC being LPC No.177 dated
23.01.2019. It is an admitted case of the parties that both these two LPCs
existed and has been prepared by the authority competent to do so. It is not
the case that the LPC dated 27.08.2019 is manufactured one. The opposite
parties harp heavily that since in the affidavit dated 28.01.2019, the reference
of LPC dated 27.08.2019 has been extrapolated, the entire affidavit becomes
a manufactured document and, thus, Section 467, 468 and 471 of the Indian
Penal Code would be attracted. Both the LPCs are on record and the contents
of the same have been admitted by all the parties. The first LPC, i.e., 177
dated 23.01.2019 mentions that on application of Kamal Narayan Jha, an
enquiry was conducted and it was found that in Register II, the property was
registered in the name of Balai Chandra Ghosh. Vide order No. 03/05 of the
Circle Officer, the Khata was opened in the name of Smt. Kiran Devi
(informant herein), but again vide order No.19/05, of the Additional Collector,
Deoghar, and memo No.246 dated 31.03.2005, name of Kiran Devi has been
removed and the old Jamabandi was restored. This was the sum and
substance of the first LPC.
In the second LPC, it has been mentioned that earlier LPC No.177
dated 23.01.2019 was issued, after proper verification and in the said LPC it
has been mentioned that the land is not surveyed and as per Register II, name
of Balai Chandra Ghosh has been reflected. From matching the aforesaid two
LPCs, it would be crystal clear that there is no variance of facts in the two
LPCs. The second LPC merely reiterates what has been narrated in the first
LPC.
63. Thus, I find that by bringing to light the second LPC, there was no
fraudulent or dishonest intention on part of the petitioner No.2. This fact, which
has been narrated above will not attract Section 463 of the Indian Penal Code.
Further, there has to be an element of dishonest and fraudulent intention in
terms of Section 464 of the Indian Penal Code. Since, contents of both the
LPCs are same and it was brought to the knowledge of the registering
authority, it cannot be said that the petitioners had any dishonest or fraudulent
intention. The only question is whether putting reference of the second LPC in
the affidavit, which is sworn prior to existence of the second LPC can make the
entire affidavit a forged and manufactured document. In opinion of this Court,
the answer has to be in negative. Since the basic intention to do something
fraudulently or dishonestly is missing in the entire transaction of preparation of
the affidavit, it cannot be said that the entire affidavit is a manufactured one.
Be it noted here that the preparation of the affidavit and execution of the same
has not been denied by the parties. Further, it has been admitted that there
was no impersonation while executing the said affidavit. Thus, merely giving a
reference of the second LPC in the affidavit at a later stage, will not make the
entire document a forged one or a manufactured document as defined in
Sections 463 and 464 of the Indian Penal Code. At best, it can be said that the
document, i.e., the affidavit has become irregular or defective.
It is also admitted fact that these two LPCs does exist and has been
issued by the competent authority and there is no interpolation or tampering in
the said two LPCs.
64. So far as the attraction of Section 82 of the Registration Act is
concerned, from the facts of this case, as narrated in the FIR and also from the
submission of the parties, I find that no false statement has been made before
the Registering Authority. Admittedly, on the date of registration of the sale
deed in favour of the petitioner, the Jamabandi of the informant stood
cancelled. Further, admittedly, it is not a case of impersonation. No false
document was produced before the Registering Authority. In absence of all
these ingredients Section 82 of the Registration Act is not attracted in this
case. Reference of Section 82 of the Registration Act has been incorporated in
the FIR without any factual basis.
65. So far as the allegation that there is a cash transaction in respect of sale
and purchase of this property is concerned, the same will definitely not attract
Sections 420, 467, 468 and 471 of the Indian Penal Code. If at all there is any
violation of the Income Tax Act, it is for the Income Tax Department to look
into, but, the provision of the Indian Penal Code would not be attracted.
66. So far as the allegation that the sale deed was undervalued, the said
allegation also will not attract the offences under Sections 420, 467, 468, 471
of the Indian Penal Code as it was within the domain of the Registrar to see
whether the valuation of the property is proper for purposes of stamp duty or
not. If the stamp duty is not proper, the document can be impounded, but, non
payment of proper stamp duty will not attract an offence under Section 420,
467, 468, 471 of the Indian Penal Code.
67. Further, during argument, counsel for the State submitted that during
investigation, it has come that the original land owners have not received any
sale proceeds. Thus, according to him, the sale deed is sham. Surprisingly,
this allegation is not there in the First Information Report. Further surprising is
that no such allegation has been levelled by the original land owners, rather
from the counter affidavit filed by the State, it is apparent that the land owners
have stated that they have received some money though a paltry sum.
Further, from the counter affidavit, it is also clear that power of attorney was
also executed by the original land owners in favour of Kamal Narayan Jha and
Sanjeev Tiwari. This also suggests the genuine existence of power of attorney
also.
68. Judgments referred by the counsel for the opposite party No.2 deals
with the powers and the situations to quash the First Information Report and
when the same should be exercised. It is true that if serious allegations are
made which makes out an offence, the FIR cannot be quashed. A complaint
cannot be curtailed at an initial sage. It is also true that powers under Section
482 of the Code of Criminal Procedure should be used sparingly. But, all these
proposition of law have to be related with the facts of each individual case and
no straight jacket universal formulae can be applied to each and every facts,
which are different.
69. On the facts of the instant case and what has been discussed above, I
find that no offence under Sections 420, 467, 468, 471, 511 or 120B of the
Indian Penal Code nor under Section 82 of the Registration Act is made out
from bare perusal of the First Information Report itself. Even some
submissions, which were made by the opposite parties on some facts, though
it is not there in the First Information Report (which has been narrated earlier),
the same also do not constitute any offence under the Indian Penal Code. The
dispute, if any, is absolutely civil in nature for which a civil suit is already
pending between the parties before a competent Court. So, when no offence is
made out, initiation of the criminal proceeding and continuance of the same is
nothing but, sheer abuse of the process of the Court. On the facts of this case,
the judgments referred to by the State cannot be applied. In my opinion, this is
a fit case where the inherent power of the High Court should be exercised for
quashing the FIR as the FIR and its continuance is a sheer abuse of the
process of the Court.
70. Thus, in view of what has been held above, I find merit in this
application. This criminal miscellaneous petition is allowed. The First
Information Report registered as Deoghar Town Police Station Case No.346 of
2020 registered for offences punishable under Sections 467/468/471/420/511/
120B of the Indian Penal Code and Section 82 of the Registration Act is
hereby quashed and set aside.
71. This criminal miscellaneous petition (Cr. M.P. No.1865 of 2020) is,
accordingly, allowed.
Cr. M.P. No. 1846 of 2020
72. In this criminal miscellaneous petition under Section 482 of the Code of
Criminal Procedure, the petitioner has prayed to quash the First Information
Report registered as Deoghar Town Police Station Case No.343 of 2020 for
offences punishable under Sections 420/467/468/120B/34 of the Indian Penal
Code.
73. The First Information Report was registered at the instance of one
Vishnu Kant Jha. In the First Information Report, he has narrated that in
Deoghar a building, namely, "Alokeshi Dham" was registered on 29.08.2019 in
favour of Anamika Gautam, wife of Nishikant Dubey. It is alleged that by
influencing the officers, the Member of Parliament has got the land registered.
It is alleged that there was some interpolation in the affidavit by the petitioner
and her lawyer. He alleges that the property is valued about Rs.20 crore, but, it
was registered showing the value to be Rs.3 crore, which is illegal. It is stated
that there is no provision for cash transaction also. Thus, the Government has
been cheated. The aforesaid is the sum and substance of the First Information
Report.
74. Mr. Mukul Rohatgi, learned Senior Counsel appearing on behalf of the
petitioner submits that the informant is a flyby person and has got no authority
to lodge this First Information Report. He submits that no offence, as alleged,
is made out. He further submits that exactly on the same allegations, a detail
First Information Report has been registered, i.e., Deoghar Town Police
Station Case No.346 of 2020, which is the subject matter of Cr. M.P. No.1865
of 2020 and on the same allegation, the State cannot investigate this offence.
Further, he submits that the allegation is absolutely vague. It is submitted that
the property if undervalued at the time of registration is a matter of concern
between the Revenue and the petitioner and the informant has got no authority
to question the same. Purchasing and selling of a private property is being
questioned by a stranger, when neither the seller nor the purchaser nor the
power of attorney holder of the owner have got any grievance.
75. Mr. Dushyant Dave, learned Senior Counsel appearing for the State,
during course of arguments, fairly admitted that in view of the First Information
Registered as Deoghar Town Police Station Case No. 346 of 2020, which is
the subject matter of Cr. M.P. No.1865 of 2020, State is not proceeding with
the investigation of the present First Information Report, i.e., Deoghar Town
Police Station Case No.343 of 2020. He further admits that the facts, which the
informant in this case tries to bring forth, is elaborately and in detail narrated in
the First Information Report, i.e., Deoghar Town Police Station Case No.346 of
2020, which is the subject matter of Cr. M.P. No.1865 of 2020, which the State
is investigating and is also proceeding with.
76. Learned counsel appearing on behalf of the opposite party No.2-
informant, submits that an offence is, definitely made out and there is loss to
the Government Exchequer as the property was registered showing lesser
value.
77. I have heard the counsel for the parties and have gone through the First
Information Report.
78. This case was heard along with Cr. M.P. No.1865 of 2020 arising out of
Deoghar Town Police Station Case No.346 of 2020. Both these two First
Information Reports narrate the same incidence. The instant First Information
Report, i.e., Deoghar Town Police Station Case No.343 of 2020 is not in detail,
whereas the First Information Report being Deoghar Town Police Station Case
No.346 of 2020, which is the subject matter of Cr. M.P. No.1865 of 2020 gives
details of the allegations. The instant First Information Report (Deoghar Town
Police Station Case No.343 of 2020) has been filed by a person, who has got
no relation with the property in question, whereas the First Information Report
being Deoghar Town Police Station Case No.346 of 2020, which is the subject
matter of Cr. M.P. No.1865 of 2020, has been lodged by Kiran Devi, who
claims to be a purchaser of the property and it is her case that her property
was again sold to the petitioners. This Court, by a detailed judgment, in Cr.
M.P. No.1865 of 2020, has held that on the facts of the case, no offence, as
alleged in the First Information Report, i.e., Deoghar Town Police Station Case
No.346 of 2020, is made out and thus, quashed the same. This Court, thus,
feels that on the same facts, this First Information Report, i.e., Deoghar Town
Police Station Case No.343 of 2020, also cannot be allowed to sustain.
Continuance of this First Information Report, i.e., Deoghar Town Police Station
Case No.343 of 2020, would be nothing, but, an abuse of the process of the
Court. Thus, this First Information Report being Deoghar Town Police Station
Case No.343 of 2020 is also hereby quashed and set aside.
79. This criminal miscellaneous petition (Cr. M.P. No.1846 of 2020) is also,
accordingly, allowed.
(Ananda Sen, J.)
Kumar/Cp-03
