Kerala High Court
K. Mohammed Ali vs Chinnamma K.M on 8 November, 2024
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CRL.MC NO. 3248 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
CRL.MC NO. 3248 OF 2023
CC NO.2 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST
CLASS-IV, KOZHIKODE
PETITIONERS/ACCUSED 1 - 13:
1 K. MOHAMMED ALI
AGED 51 YEARS
S/O. ABDULA HAJI, KANOTH MEETHAL HOUSE,
NARIPETTA PO, NARIPETTA AMSAM DESOM,
VADAKARA TALUK, KOZHIKODE 673506
2 FATHIMA RAHIZA
AGED 31 YEARS
D/O. KUNJU AHMED, THAIYULLATHIL HOUSE,
JATHIYERI, CHERUMOTH, VALAYAM AMSAM DESOM,
KOZHIKODE PIN - 673517
3 HUSAIN POYILKANDIYIL
AGED 38 YEARS
S/O. KUNJU ABDULLAH, POYILKANDIYIL HOUSE,
VELLIYODE AMSAM, BHOMIVATHUKAL DESOM,
KOZHIKODE
PIN - 673517
4 SHAFINA
AGED 37 YEARS
D/O. KUNJU ABDULLAH, THAIYULLATHIL HOUSE,
JATHIYERI, CHERUMOTH, VALAYAM AMSAM DESOM,
KOZHIKODE PIN - 673517
5 JAMEELA
AGED 65 YEARS
D/O. ABOOBACKER, TADANILAMPARAMBIL,
ODAKKAL, PANNIYENKARA VILLAGE, KALLAI,
KOZHIKODE PIN - 673003
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2
6 AMINA K. ALIAS AMINA BEE,
AGED 64 YEARS
D/O. ABOOBACKER, 34/182D, P.M. APARTMENTS,
ELECTRIC POST NO. K.P./MF/31/21,
TADAMBAT TAZHAM, VENGERI P.O,
KOZHIKODE PIN - 673010
7 HAJIRABI
AGED 63 YEARS
D/O. ABOOBACKER, SHAHNAZ, KURUVISSERI,
KARAPARAMBU P.O, KOZHIKODE, PIN - 673010
8 SAUJATH BEEBI ALIAS SAUDATH
AGED 60 YEARS
D/O. ABOOBACKER, AYISHA'S HOUSE, HOUSE NO. 51,
OTHAYAMANGALAM ROAD, KARAPARAMBU P.O,
ELECTRIC POST NO. OM-71B,
KOZHIKODE PIN - 673010
9 ABDUL LATHEEF
AGED 57 YEARS
S/O. ABOOBACKER, 34/182, P.M. APARTMENTS,
ELECTRIC POST NO. K.P./MF/31/21,
TADAMBAT TAZHAM, VENGERI P.O,
KOZHIKODE, PIN - 673010
10 ZUBAIDA
AGED 50 YEARS
D/O. ABOOBACKER, 34/182, P.M. APARTMENTS,
ELECTRIC POST NO. K.P./MF/31/21,
TADAMBAT TAZHAM, VENGERI P.O,
KOZHIKODE, PIN - 673010
11 FAUZIA
AGED 49 YEARS
D/O. ABOOBACKER, 34/182, P.M. APARTMENTS,
ELECTRIC POST NO. K.P./MF/31/21,
TADAMBATH TAZHAM, VENGERI PO,
KOZHIKODE, PIN - 673010
12 MALLISSERI K.P. AJEESH
AGED 40 YEARS
S/O. LEELAMMA, DOCUMENT WRITER, DAD 322, SAD
693, SOFTECH KAKKODI, PARAMBIL P.O,
KOZHIKODE PIN - 673012
13 P.T. PADMAKUMAR
AGED 42 YEARS
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3
S/O. SHEKARAN NAIR, DOCUMENT WRITER,
PUNATHIL TAZHATTU,
GURUVAYURAPPAN COLLEGE P.O,
KOZHIKODE PIN - 673014
BY ADVS.
M.GOPIKRISHNAN
LEJO JOSEPH GEORGE
HARINDRANATH B G
AMITH KRISHNAN H
GOWRI DEV(K/003380/2023)
P.DEVIKRISHNA(K/002502/2023)
AHANAA MUHAMMED(K/002154/2024)
RESPONDENTS/COMPLAINANT:
1 CHINNAMMA K.M.
AGED 65 YEARS
W/O. VINOD SINGH CHERIAN, 64/192,
KOCHUVEETHIL HOUSE, ERANZHIPALAM PO,
KOZHIKODE, PIN - 673006
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA - 682031
BY ADVS.
MADHAVANUNNI V T
LEO LUKOSE(K/001131/2016)
T.M.KHALID(K/000047/2013)
K.P.SUSMITHA(K/956/2001)
VINOD SINGH CHERIYAN(K/000197/1983)
B.G HARINDRANATH(SR.)
SRI. RENJIT GEORGE, SR.PUBLIC PROSECUTOR,
ADV.ALEX JOSEPH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 26.09.2024, THE COURT ON 08.11.2024 PASSED
THE FOLLOWING:
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CR
ORDE R
Dated this the 8th day of November, 2024
This Criminal Miscellaneous Case has been filed
under Section 482 of the Code of Criminal Procedure to quash
Annexure-A1 complaint in C.C.No.2/2023 on the files of the
Judicial First Class Magistrate Court, Kozhikode. The
petitioners are accused Nos.1 to 13 in the above case.
2. Heard the learned counsel for the petitioners,
the learned Public Prosecutor and the learned counsel for the
1st respondent in detail. Perused the available records.
3. In the instant case, investigation started
when the complainant lodged complaint before the Judicial
First Class Magistrate Court-IV, Kozhikode, alleging
commission of offences punishable under Sections 465 and
468 of the Indian Penal Code (hereinafter referred to as 'IPC'
for short) and under Section 82 of the Registration Act.
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4. The prayer herein is to quash the complaint.
At the same time, it is submitted by the learned counsel for the
1st respondent and the learned counsel for the petitioners that
acting on the complaint, the learned Magistrate proceeded
further and took cognizance of the matter and issued
summons by another separate order and the said order is not
produced. The precise allegation of the prosecution is that the
accused herein created false documents viz., 1994/2016,
87/2020, 88/2020, 89/2020 and 90 of 2020 showing public
way and public well as private properties, with a view to avoid
the use of the same by the public. This is the base on which
the prosecution alleges commission of the above offences.
5. While challenging the complaint, on the
submission that none of the offences prima facie made out,
the learned senior counsel for the petitioners placed decision
of the Apex Court in Devendra and Others v. State of Uttar
Pradesh and Another, reported in (2009) 7 SCC 495,
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referring paragraph Nos.5 and 27 to contend that none of the
offences made out, prima facie. The facts dealt in the decision
is stated in paragraph No.5 which reads as under:
"5. On or about 22.08.1997, a sale deed was
executed by Appellants 1 and 2 in favour of Appellants
3 and 4. On 24.08.2005, a suit was filed by Respondent
2 and others for cancelling the aforesaid deed of sale
dated 22.08.1997, which was registered as Civil Suit
No.382/2005. The said suit is still pending in the Court
of the learned Civil Judge (Junior Division), Ghaziabad.
In the said suit, however, it was averred that Solhu had
four sons whereas in Suit No.135/1982, it was stated
that solhu had five sons. The appellants filed an
application under Order 9 Rule 13 read with Section
151 of the Code of Civil Procedure before the Court of
the Deputy District Magistrate (First Class), Ghaziabad
praying for dismissal of Suit No.135 of 1982. An
application for impleadment was also filed by the
appellants in Civil Miscellaneous Writ Petition No.17667
of 1985."
6. In paragraph No.27, the Apex Court
observed as under:
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"27. Mr. Das submits that a wrong committed on
the part of a person may be a civil wrong or a criminal
wrong although an act of omission or commission on the
part of a person may give rise to both civil action and
criminal action. A distinction must be made between a civil
wrong and a criminal wrong. When dispute between the
parties constitute only a civil wrong and not a criminal
wrong, the courts would not permit a person to be
harassed although no case for taking cognizance of the
offence has been made out."
7. Another decision in Mohammed Ibrahim
and Others v. State of Bihar and Another, reported in
(2009) 8 SCC 751 also has been placed with reference to
a case where the facts dealt in paragraph No.2 as under:
"2. The second respondent herein filed a complaint
against Appellants 1 to 3 (Accused 1 to 3) and two
others before the Chief Judicial Magistrate,
Madhubani, alleging that he was the owner of Katha
No. 715, Khasra Nos. 1971 and 1973 admeasuring 1
bigha, 5 kathas and 18 dhurs; that the first accused
who had no connection with the said land and who
had no title thereto, had executed two registered sale
deeds dated 2-6-2003 in favour of the second
accused in respect of a portion of the said land
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measuring 8 kathas and 13 dhurs; and that the third,
fourth and fifth accused being the witness, scribe and
stamp vendor respectively in regard to the sale deeds
had conspired with Accused 1 and 2 to forge the said
documents; and that when he confronted Accused 1
and 2 about the said forgery, they abused him and hit
him with fists and told him that he can do what he
wanted, but they will get possession of the land on
the basis of the said documents."
8. In the said decision, the Apex Court
considered allegation of commission of offences punishable
under Sections 323, 341, 420, 467, 471 and 504 of IPC and
discussed many aspects and in paragraph Nos.13 to 17, the
Apex Court held as under:
"13. The condition precedent for an
offence under Sections 467 and 471 is forgery. The
condition precedent for forgery is making a false
document (or false electronic record or part thereof).
This case does not relate to any false electronic
record. Therefore, the question is whether the first
accused, in executing and registering the two sale
deeds purporting to sell a property (even if it is
assumed that it did not belong to him), can be said to
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have made and executed false documents, in
collusion with the other accused.
14. An analysis of Section 464 of the
Penal Code shows that it divides false documents into
three categories:
1. The first is where a person dishonestly or
fraudulently makes or executes a document with the
intention of causing it to be believed that such
document was made or executed by some other
person, or by the authority of some other person, by
whom or by whose authority he knows it was not
made or executed.
2. The second is where a person
dishonestly or fraudulently, by cancellation or
otherwise, alters a document in any material part,
without lawful authority, after it has been made or
executed by either himself or any other person.
3. The third is where a person
dishonestly or fraudulently causes any person to sign,
execute or alter a document knowing that such person
could not by reason of (a) unsoundness of mind; or (b)
intoxication; or (c) deception practised upon him,
know the contents of the document or the nature of
the alteration.
In short, a person is said to have made a
"false document", if (i) he made or executed a
document claiming to be someone else or authorised
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by someone else; or (ii) he altered or tampered a
document; or (iii) he obtained a document by
practising deception, or from a person not in control of
his senses.
15. The sale deeds executed by the
first appellant, clearly and obviously do not fall under
the second and third categories of "false documents".
It therefore remains to be seen whether the claim of
the complainant that the execution of sale deeds by
the first accused, who was in no way connected with
the land, amounted to committing forgery of the
documents with the intention of taking possession of
the complainant's land (and that Accused 2 to 5 as the
purchaser, witness, scribe and stamp vendor,
colluded with the first accused in execution and
registration of the said sale deeds) would bring the
case under the first category.
16. There is a fundamental difference
between a person executing a sale deed claiming that
the property conveyed is his property, and a person
executing a sale deed by impersonating the owner or
falsely claiming to be authorised or empowered by the
owner, to execute the deed on owner's behalf. When
a person executes a document conveying a property
describing it as his, there are two possibilities. The
first is that he bona fide believes that the property
actually belongs to him. The second is that he may be
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or fraudulently claiming it to be his even though he
knows that it dishonestly 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."
9. Another decision of the Apex Court in Indian
Oil Corpn v. NEPC India Ltd, reported in (2006) 6 SCC 736
also has been placed, wherein the Apex Court dealt with
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offences under Sections 378, 405, 415, and 425 of IPC.
10. In Mohammed Ibrahim's case (supra), in
paragraph No.8, the Apex Court held as under:
"8. This Court has time and again
drawn attention to the growing tendency of the
complainants attempting to give the cloak of a criminal
offence to matters which are essentially and purely
civil in nature, obviously either to apply pressure on
the accused, or out of enmity towards the accused, or
to subject the accused to harassment. Criminal courts
should ensure that proceedings before it are not used
for settling scores or to pressurise parties to settle civil
disputes. But at the same time, it should be noted
that several disputes of a civil nature may also contain
the ingredients of criminal offenes and if so, will have
to be tried as criminal offences, even if they also
amount to civil disputes. (See G.Sagar Suri v. State of
U P and Indian Oil Corpn. v. NEPC India Ltd.)
11. While asserting that no offence under Section
82 of the Registration Act is made out, decision of the
Karnataka High Court in Pushpavalli v. The Sub Registrar,
Gandhinagar, Bangalore, reported in ILR 2022 KAR 3923 is
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placed, with reference to paragraph No.12 of the said decision
and the same is as under:
"12 In the light of the above, the
points that arise for my consideration in this revision
petition are:
(i) Whether a recital made in a document
submitted for registration, particularly in a Deed of
Conveyance, be considered as a statement made
before the Sub-Registrar in an enquiry or proceeding
enabling exercise of power under Section 82 of the
Registration Act, 1908?
(ii) Whether the concurrent finding recorded
by the Trial Court, as well as the Sessions Judge's
Court that the accused committed the alleged offence
punishable under 82 of the Registration Act, 1908,
warrants any interference at the hands of this Court?"
In paragraph No.20 of the said judgment, the
Karnataka High Court observed as under:
"20. Thus, to initiate an action under
Section 82(a) of the Registration Act, there had to be
necessarily:
(i) a statement,
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(ii) the said statement should have been made
intentionally,
(iii) the statement proves to be a false one,
(iv) the said statement should have been made
before any officer acting in execution of the
Act,
(v) the said statement should have been made in
any proceeding or enquiry under the Act.
In the instant case, admittedly the accused
has not made any statement before the Sub-
Registrar/ complainant, but, the alleged statement is
only a recital in a Deed of Conveyance presented by
the accused for its registration, which is at Ex.P-5.
Therefore, it cannot be held that there was any
statement made by the accused, much less, before
any Officer under the Act. Even if it is assumed that
the said recital was a false recital, it cannot be taken
that it was a statement made before the Sub-Registrar
in any enquiry or proceeding. If at all PW-2 Sri.
S.Swatantra Rao, the complainant before the Sub-
Registrar, who filed his complaint as per Ex.P-2, was
aggrieved by the recital made in Ex.P-5, then, it was
open for him to initiate appropriate legal action against
the present accused/petitioner in a manner known to
law and in a competent Court by instituting either civil
action or a criminal action. Admittedly, he has initiated
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a civil action against the present petitioner/accused by
instituting a civil suit in O.S.No.4528/2005 before the
City Civil Court at Bengaluru. Therefore, the suitable
action for the alleged false recital said to have been
made in Ex.P-5 has already been initiated by the
alleged aggrieved person by instituting
O.S.No.4528/2005."
12. Relying on the decisions, it is argued by the
learned counsel for the petitioners that in the facts of the case,
none of the offences prima facie made out. Therefore
applying the same ratio, the entire proceedings would require
quashment.
13. Dispelling this argument, the learned counsel
for the first respondent also read out the relevant paragraphs
in Mohammed Ibrahim's case (supra) on the submission that
in the instant case, A5 to A11 sold out the property individually
to A1, thereafter, to A2, thereafter to A3 and finally A4
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respectively. Therefore, the facts of the case relied on by the
learned counsel for the petitioners are different from the facts
of the present case. On reading Section 463 of IPC, it is
pointed out that the intention, which should be read out
distinctively as found in Section 463 of IPC, is a matter of
evidence and therefore, quashment sought for is liable to fail.
He has placed decision of the High Court of Jharkhand in
Chandeshwar Lal Das & Ors V. The State of Jharkhand &
Anr, reported in 2008 4 JCR 19 : 2008 0 Supreme (jhk) 899 :
2008 4 JLJR 30 and in paragraph No.5 it has been held as
under:
"5. Having regard to the facts and
circumstances of the case, I find that the
complainant/opposite party No.2, who filed the
complaint petition, has tried to make out a prima facie
criminal case against the petitioners for the alleged
offence and the learned Judicial Magistrate, Dhanbad
having been satisfied by detailed discussions found a
prima facie criminal case against the petitioners and
directed summons to be issued against them. It is not
clear from the record as to whether the petitioners
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have appeared in the Court of Judicial Magistrate on
receipt of summons. Yet, I find substance in the
arguments that the title over the land in question
cannot be decided in exercise of inherent jurisdiction
of this court under Section 482 of the Code of
Criminal Procedure. Taking the considered view, I
direct that in the event of appearance of the
petitioners before the learned Judicial Magistrate and
on the presentation of the petitions under Sections
437 as well as 245 of the Code of Criminal
Procedure, the same shall be considered on its own
merit without being prejudiced by this order."
14. The learned counsel for the first respondent
also placed reliance on the decision in Dharamadeo Rai v.
Ramnagina Rai, reported in 1972 KHC 393 SC, where
Section 83 of the Registration Act was considered, with
reference to paragraph No.3 which reads as under:
"83(1) A prosecution for any offence under
this Act coming to the knowledge of a
registering officer in his official capacity
may be commenced by or with the permission of
the Inspector General, the Registrar or the
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Sub-Registrar, in whose territories district
or subdistrict, as the case may be, the
offence has been committed.
(2) Offences punishable under this Act shall
be triable by any Court or officer- exercising
powers not less than those of a Magistrate of
the second class."
On a reading of the section, it would be clear that it
deals only with prosecution for an offence under the
Act coming to the knowledge of the Registering
Officer in his official capacity. It, in effect, provides
that where an offence comes to the knowledge of the
Registering Officer in his official capacity, a
prosecution may be commenced by or with the
permission of any of the officers mentioned in the
section. The section can possibly have no
application to cases in which offences are committed
under the Act, but the offences do not come to the
knowledge of the Registering Officer in his
official capacity. If the Registering Officer does not
know in his official capacity that the document
produced before him is a false document or that the
person appearing before him is personating some
other person, the section has no application. The
section is not prohibitory in that it does not preclude
a private person from commencing a prosecution.
Even in a case where the commission of an offence
comes to the knowledge of the Registering Officer
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in his official capacity, the section does not prohibit
a private person from commencing a prosecution
as the section is clearly permissive in its language
and intent. In other words, the section is an
enabling one. It enables the persons mentioned
therein to commence a prosecution in cases where
the commission of the offence under the Act
comes to the knowledge of the Registering
Officer in his official capacity. The Section enables
the officers named to use 'their official position for the
purpose of prosecution without personal risk."
15. The decision of this Court in Sivadasan V. The
Sub Registrar, Malappuram and Ors, reported in
MANU/KE/1559/2019 also has been placed to substantiate his
contentions, wherein this Court relied on the decision in Sathyapal
v. State of M.P, reported in 2016 (10) SCC 767.
16. Now the question raises for consideration is;
whether the offences punishable under Sections 465 and 468 of
IPC and Section 82 of the Registration Act are made out prima
facie, warranting trial of the matter or otherwise, the same is not
made out from the materials so as to allow the quashment sought
for.
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17. In this connection, it is relevant to refer
Sections 463, 465 and 468 of the IPC and its corresponding
provision in the Bharatiya Nyaya Sanhita (hereinafter referred
to as 'BNS' for short).
Section 463 of IPC provides as under:
463. Forgery.--Whoever makes any false
document 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.
Section 336 of BNS is the corresponding
provision to Section 463 of IPC. The same reads as
under:
"336. Forgery - (1) Whoever makes any
false document 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
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implied contract, or with intent to commit fraud or that
fraud may be committed, commits forgery.
(2) 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.
(3)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.
(4)Whoever commits forgery, intending that the
document or electronic record forged shall harm the
reputation of any party, or knowing that it is likely to be
used for that purpose, shall be punished with
imprisonment of either description for a term which
may extend to three years, and shall also be liable to
fine."
Section 465 of IPC provides as under:
"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."
Section 336(2) of BNS is the corresponding provision
to Section 465 of IPC and the same reads as under:
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"(2) 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."
Section 468 of IPC 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 for a term which may extend to
seven years, and shall also be liable to fine."
Section 336(3) of BNS is corresponding to Section
468 of IPC and the same reads as under:
"(3)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."
18. Coming to the essentials to constitute
forgery, the same are as under:
(a) Essential Ingredients.- The elements of forgery
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are:
(i) The making of a false documents or part of it;
(ii) Such making should be with intent
a. To cause damage or injury to (i) public, or
(ii) any person; or
b. To support any claim or title; or
c. To cause any person to part with property;
or
d. To cause any person to enter into express
or implied contract; or
e. To commit fraud or that fraud may be
committed.
19. Further it is the settled law that every false or
fabricated document is not a forged document. There must be
acts that constitute the document as a false or fabricated one,
that is to say, the case must fall within the definition of making
false document under Section 464 of the IPC and such false
document must also possess the character of tendency
described under Section 463 of IPC. It is not necessary that
the document should be published or made in the name of a
really existing person (vide explanation 2). But it must either
appear on its face to be, in fact, on which, if true, would
possess some legal validity. Or in other words, must be legally
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capable of effecting the fraudulent intent. Until a false
document is made either in whole or in part, there cannot be
any forgery. Mere preparation for the commission of a possible
crime of forgery without a false document in part or in whole
cannot itself be either forgery or abetment of forgery. To put it
otherwise, it is not correct to say that an offence of forgery in
terms of Section 464 of IPC comes into being when a person
makes a false document and not when a person causes to be
made a false document. No word in an enactment is
surplusage. The law-making authority, in its wisdom, has used
the word "makes" in addition to the other words, such as
"signs, seals and executes". The said word has, therefore, to
be interpreted independently of the other words referred
above. Making a document is different from causing it to be
made. As per explanation 2 to Section 464 of IPC, it is clarified
that for constituting offence under Section 464 of IPC, it is
imperative that a false document is made and the accused
person is the maker of the same.
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20. An intent to cause injury is not an essential
ingredient in the offence of forgery. The intents, as recited in
section 463 of the Indian Penal Code, 1860 include among
various alternatives, an intent to cause damage or injury, but
this phrase does not govern the other intents mentioned in the
section. It is an intent complete in itself. The definition in
section 463 is itself subject to the definition in section 464 IPC,
in which the other two essential elements are that the act
should be done "dishonestly or fraudulently." In other words,
whichever of the intents given in section 464 may be
applicable, the act itself must be done dishonestly or
fraudulently to sustain a conviction for forgery. The use by the
Legislature of words "dishonestly or fraudulently" in the
alternative, obviously means that they are not tautological but
must be given different meanings. The intention to defraud is
something other than the intention to cause wrongful gain or
loss.
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21. In the decision reported in Shri Sukhbir
Singh Badal v. Balwant Singh Khera and Others reported
in 2023 KHC 6479, the Apex Court considered the offence of
forgery in paragraph No.5.7 and held as under:
"whoever makes any false documents, with intent to
cause damage or injury, to the public or to any
person, or to support any claim or title, or to cause
any person to part with property, or to enter into any
express or implied contract, or with intent to commit
fraud or that fraud may be committed", he is said to
have committed the offence of forgery. Making a false
document is defined under S.464 IPC. Therefore, for
the offence of forgery, there must be making of a
false document with intent to cause damage or injury
to the public or to any person. Therefore, making the
false document is sine qua non. Identical question
came to be considered by this Court in the case of
Mohammed Ibrahim & Ors. (supra). While
interpreting S.464 and S.471 IPC and other relevant
provisions of IPC, in paragraphs 13 an d 14, it is
observed and held as under:- "13. The condition
precedent for an offence under S.467 and S.471 is
forgery. The condition precedent for forgery is making
a false document (or false electronic record or part
thereof). This case does not relate to any false
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electronic record. Therefore, the question is whether
the first accused, in executing and registering the two
sale deeds purporting to sell a property (even if it is
assumed that it did not belong to him), can be said to
have made and executed false documents, in
collusion with the other accused. 14. An analysis of
S.464 of the Penal Code shows that it divides false
documents into three categories:
1.The first is where a person dishonestly or
fraudulently makes or executes a document with the
intention of causing it to be believed that such
document was made or executed by some other
person, or by the authority of some other person, by
whom or by whose authority he knows it was not
made or executed. 2. The second is where a person
dishonestly or fraudulently, by cancellation or
otherwise, alters a document in any material part,
without lawful authority, after it has been made or
executed by either himself or any other person. 3. the
third is where a person dishonestly or fraudulently
causes any person to sign, execute or alter a
document knowing that such person could by reason
of (a) unsoundness of mined; or (b) intoxication; or (c)
deception practised upon him, know the contents of
the document or the nature of the alteration. In
short, a person is said to have made a "false
document", if (i) he made or executed a document
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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
practising deception, or from a person not in control
of his senses"
22. In the decision reported in Shoma G.Madan
v. Kerala State reported in 2023 KHC 9333, this Court also
extensively considered the foundation for the offence of
forgery and held in paragraph No.3, 4 and 5 are as under,
after referring the definition of the words "dishonestly" and
"fraudulently", as defined under Section 24 and 25 of the IPC
as under:
3. The foundation of the offences alleged is "forgery". The
definition of "false document" is a part of the definition of
'forgery'. Both definitions are interlinked to form the
offence. On a reading of the ingredients of the offence of
forgery, the following are essential:-
(1) Fraudulently signing a document or a part of a
document with the intention of causing it to be believed
that such document or part of a document was signed by
another or under his authority;
(2) Making such a document with the intention to commit
fraud or that fraud may be committed.
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4. The elements of mens rea, as per the definition, are
dishonestly and fraudulently. Section 24 of the Indian
Penal Code defines "dishonestly" as follows:-
"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".
Section 25 Of IPC defines 'fraudulently' as follows:-
"25. "Fraudulently" A person is said to do a thing
fraudulently if he does that thing with intent to defraud but
not otherwise."
5. The word "defraud" includes an element of deceit.
Deceit is not an ingredient in the definition of the word
"dishonestly" while it is an important ingredient in the
definition of the word 'fraudulently. The former involves a
pecuniary or economic gain or loss, while the latter
excludes that element. In the definition of `dishonestly',
wrongful gain or wrongful loss is the necessary ingredient.
Both need not exist, and and one would be enough. If the
expression "fraudulently" involves the element of injury to
the person or persons deceived, it would be reasonable to
assume that the injury should be something others than
pecuniary or economic loss. Though almost always an
advantage to one causes loss to another and vice versa, it
need not necessarily be so. To satisfy the definition of
"fraudulently" it would be enough if there was a non-
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economic advantage to the deceiver or a non-economic
loss to the deceived, and both need not co-exist.
Therefore, the expression "defraud" involves two
elements, namely, deceit and injury to the person
deceived. Injury is something other than economic loss,
that is, deprivation of property, whether movable or
immovable, or of money, and it will include any harm
whatever caused to any person in body, mind, reputation
or such others. In short, it is a non-economic or
nonpecuniary loss. A benefit or advantage to the deceiver
will almost always cause loss or detriment to the deceived.
Even in those rare cases where there is a benefit or
advantage to the deceiver but no corresponding loss to the
deceived, the second condition is satisfied. (Vide: Dr.
Vimla v. The Delhi Administration (AIR 1963 SC 1572).
23. Summing up the ingredients for the offence
of forgery, in order to bring home an offence of forgery under
the first category, where a person dishonestly or fraudulently
makes or executes a document with the intention of causing it
to be believed that such document was made or executed by
some other person, or by the authority of some other person,
by whom or by whose authority he knows it was not made or
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executed, are necessary. But there is a difference between a
person executing a sale deed, claiming that the property
conveyed is his property and a person executing a sale deed
by impersonating the owner or falsely claiming to be
authorised or empowered by the owner to execute the deed
on owner's behalf. In the first instance, the person bonafide
believes that the property actually belongs to him. In the
second instant, he may be dishonestly or fraudulently claiming
it to be his own even though he knows that it dishonestly is not
his property. In order to consider a document as a false
document, it is not sufficient that a document has been made
or executed dishonestly or fraudulently, but 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 the person, by whom or by
whose authority he knew that it was not made or executed.
24. To be explicit, when a person executing a
document describing a public way and public well as his own
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property, and making the buyer to believe that the same is his
property, that alone would not attract the offence of forgery.
But when the said person making the buyer to believe that he
was executing a document with the intention of causing it to be
believed that such document was made or executed, or by the
authority of a person, by whom or by whose authority he
knows that it was not made or executed, the said action
amounts to forgery. In the instance case, property of the
government, in fact, included in the title deed as private
property by the petitioners claiming the same as their property
and the same will not cover the three instances of forgery
explained herein above and therefore, the offences under
Sections 465 and 468 of IPC not made prima facie and
therefore, criminal proceedings for the said offences are liable
to be quashed. However, the remedy of the aggrieved to
challenge the documents whereby properties, for which, the
transfer have no saleable right before the civil court is very
much available and left open.
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25. Coming to the allegation as to commission of
offence under Section 82 of the Registration Act, it is relevant
to extract Section 82 of the Registration Act and same is as
under:
82. Penalty for making false statements, delivering
false copies or 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 enquiry under this Act; or
(b) intentionally delivers to a Registering
Officer, in any proceeding under this Act or
the rules made thereunder 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.
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26. As per the decision of the Karnataka High
Court (Pushpavalli's case (supra)), relied on by the learned
counsel for the petitioners, when presenting a document for
registration which would contain false recitals, the same is not
akin to making any false statement and therefore, Section 82
of the Registration Act has no application.
27. The learned counsel for the 1st respondent
distinguished the ratio in Pushpavalli's case (supra), on the
submission that it is not legally correct to say that intentionally
making any false document is not akin to make a false
statement.
28. Coming to the offence under Section 82 of
the Registration Act, as per the ratio in Pushpavalli's case
(supra), even though the Karnataka High Court held that when
there is a false recital in a deed of conveyance, presented for
registration, and the same is not a statement made before the
Sub Registrar in tune with Section 82 of the Registration Act,
on reading Section 82(a) of the Registration Act, whoever
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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 proceedings or
enquiry under this Act is an offence. Now the question is
confined as to whether it has to be held that a false recital
made in a document is not a statement contemplated under
Section 82 of the Registration Act or the statement recited in a
deed of conveyance also is akin to a false statement dealt
under Section 82 of the Registration Act. In this connection, it
is relevant to refer a decision of the High Court of Madras in
Selvi V. Inspector General of Registration and Others
reported in 2023 SCC OnLine Mad 1895 and in paragraph
No.6, it has been observed as under:
"6. The settled legal position is that
questions of title should be determined by a civil
court and not by a registering authority. The
registering authority is, however, empowered to
conduct an enquiry in relation to the matters
specified in Section 82 of the Registration Act. The
matters specified in Section 82 include the making
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of a false statement before the registering authority,
the production of a false document before the
registering authority, impersonation and the like
Section 83 empowers the registering authority to
initiate prosecution for any offence under the
Registration Act. According to the learned counsel
for the petitioner, respondents 4 to 7 had
suppressed the partition suit while executing the
sale deed dated 05.07.2012. In course of enquiry
before the registering authority, learned counsel
submits that it was falsely stated that the land
purchased by the third respondent was allotted to
the share of respondents 4 to 7 under the
preliminary and final decree of partition. Whether
such false statement was made is within the scope
of enquiry under Section 82 of the Registration Act."
29. When one evaluates the broad use of the
term 'statement' the same literally means 'a definite or clear
expression of something in speech or in writing. It includes a
single declaration or remark i.e., assertion and a report of facts
or opinion. As per the Cambridge Dictionary, statement
means someone says or writes something officially or an
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action done to express an opinion. Thus statement is a fact or
idea made either orally or in writing. When a defendant in a
civil suit is filing his contentions opposing the plaint averments,
the same becomes 'a written statement'. If so, it is difficult to
lay down a principle that when false recitals are incorporated
in a deed of conveyance and presented for registration, the
same is not as a statement for the purpose of Section 82 of
the Registration Act. The same also covers the definition of
the statement. If so, the offence under Section 82 of the
Registration Act would apply in the facts of this case. Viewing
so, the decision in Pushpavalli's case (supra) could not be
followed.
30. Holding so, this Crl.M.C. stands allowed in
part. It is held that the offences under Sections 465 and 460 of
IPC not made prima facie and accordingly, the prosecution for
the said offences stands quashed. However, it is held that
offence under Section 82 of the Registration Act is made out
prima facie in the facts of the case, for which the accused are
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liable to be tried. As a sequel thereof, quashment prayer
stands dismissed for the offence under Section 82 of the
Registration Act, with direction to the trial court to proceed with
trial for the said offence.
Interim order of stay stands vacated.
Registry is directed to forward a copy of this order to
the jurisdictional court for information and further steps.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
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PETITIONER ANNEXURES
ANNEXURE-A1 TRUE COPY OF THE PRIVATE COMPLAINT CC
NO. 2 OF 2023 DATED 18.11.2022 FILED
BEFORE THE COURT OF JUDICIAL 1ST CLASS
MAGISTRATE, IV KOZHIKODE
ANNEXURE-A2 TRUE COPY OF THE ORIGINAL SUIT NO. 261
OF 2021 ON THE FILES OF MUNSIFF COURT
I, KOZHIKODE DATED 30.9.2021
RESPONDENT ANNEXURES
ANNEXURE R1(A) COPY OF THE COMPLAINT IN C.C. NO. 2 OF
2023 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT - IV, KOZHIKODE ALONG
WITH ALL DOCUMENTS
ANNEXURE R1(B) COPY OF THE REPORT OF THE CHIEF TOWN
PLANNER (VIGILANCE), LOCAL SELF
GOVERNMENT DEPARTMENT,
THIRUVANANTHAPURAM DATED 4.7.2022
ANNEXURE R1(C) COPY OF THE REPORT WITH PLAN OF THE
OF 2021 ON THE FILE OF THE ADDITIONAL
MUNSIFF - I, KOZHIKODE DATED 3.4.2023
