Madhya Pradesh High Court

Kalvinder Singh Alias Goldi vs The State Of Madhya Pradesh on 31 May, 2024

Author: Sanjeev S Kalgaonkar

Bench: Sanjeev S Kalgaonkar

                                       1


            IN THE HIGH COURT OF MADHYA PRADESH

                                  AT GWALIOR
                            CRA No. 6860 of 2023
       (KALVINDER SINGH ALIAS GOLD AND ORS. Vs THE STATE OF MADHYA PRADESH)



       Shri Sankalp Sharma- Advocate for the appellants.
       Shri Kaushlendra Singh Tomar- Public Prosecutor for the State.
       Shri Anshu Gupta- Advocate for the complainant.
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               Reserved on            :       14.05.2024
               Pronounced on :                31.05.2024
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        This matter having been heard on IA No. 1042 of 2024 and
reserved for order, coming on for pronouncement this day, Justice
Sanjeev S Kalgaonkar pronounced the following:
                                    ORDER

Heard on the question of admission.

Record of the trial Court has been received.

Being arguable, the appeal is admitted for final hearing.

Also heard on IA No. 1042 of 2024, third application under Section

389(1) Cr.P.C. moved on behalf of appellant No.1- Kalvinder Singh @

Goldi seeking suspension of sentence and grant of bail. Earlier

applications were dismissed as withdrawn vide orders dated 26.06.2023

and 20.09.2023.

Appellant stood convicted under Section 467/34 of IPC and

sentenced to undergo four years RI with fine of Rs. 5,000/- and Section

468 of IPC and sentenced to undergo four years RI with fine of Rs.5,000/-

with default stipulations vide judgment of conviction and sentence dated

11.05.2023 passed by First Additional Sessions Judge, Dabra District

Gwalior (M.P.) in ST No.36/2017.

Learned counsel for the appellant in addition to the ground

mentioned in the application contends that learned Trial Court convicted

the appellant for offence punishable under Section 467 r/w Section 34 of

IPC and Section 468 of IPC. There was no charge for offence punishable

under Section 420 of IPC against the appellant. Learned counsel referring

to the judgment of Apex Court in case of Sheila Sebastian v. R.

Jawaharaj and Anr. AIR (2018) SC 2434 and Md. Ibrahim and Ors. v.

State of Bihar and Anr. AIR 2010 SC (Suppli.) 347 contends that the

appellant does not fall within the definition of maker of false document as

defined under Section 464 of IPC. Mere execution of a sale-deed by

claiming that the property sold was executant's property did not amount

to commission of offence punishable under Sections 467 and 471 of IPC

even if the title of property did not vest in the executant. Learned counsel

submits that in view of aforementioned position of law, learned trial

Court committed error in convicting the appellant No.1- Kalvinder

Singh @ Goldi for offence punishable under Sections 467/34 and 468 of

IPC. Learned counsel further submits that the appellant No.1-Kalvinder

has already undergone custody for one year. Fine amount has already

been deposited by the appellant. He was on bail during trial. He had not

misused the liberty granted to him. There is no likelihood of early hearing

of appeal in near future. On these grounds, learned Counsel prays that

execution of remaining jail sentence of appellant may be suspended and

he may be enlarged on bail.

Per contra, learned Counsel for respondent State ably assisted by

learned counsel for the objector opposes the application and submits that

appellant No.1- Kalvinder Singh is habitual offender. There is criminal

history of nine cases against the appellant including two cases of similar

nature. Appellant- Kalvinder stands convicted vide judgment dated

08.03.2022 in ST No.74/2019 passed by Learned IInd ASJ, Dabra,

Gwalior for offence punishable under Sections 341, 323 and 326 read

with Section 34 of IPC, therefore, the appellant does not deserves

suspension of sentence.

Heard both the parties and perused the record.

Learned trial Court on appreciation of record concluded that the

prosecution has proved beyond doubt that the appellant Kalvinder

executed a sale deed as power of attorney of Narendrajeet Kaur in favour

of Prajeet Singh Chahal on 22.12.2005. Thereafter, knowing fully well

that the land comprised in sale deed dated 22.12.2005 stands transferred

to Prajeet Singh Chahal, dishonestly got executed, another sale deed

dated 24.11.2010 of the same land to himslef in furtherance of common

intention with co-accused Narendrajeet Kaur to cheat to Prajeet Singh

Chahal.

Section 464 of IPC defines making of false document.

Illustration 'h' of Section 464 of IPC reads as under:-

(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery.

Section 467 of IPC provides for punishment for the offence of

forgery of valuable security, Will, etc. Learned trial Court has convicted

the appellant for offence punishable under Section 467/34 of IPC and

Section 468 of IPC.

Learned counsel for the appellant has relied on the judgment in

case of Sheila Sebastian(supra) and Md. Ibrahim (supra) to contend

that appellant cannot be convicted for forgery of sale deed as he is not

maker of the sale deed. The second sale deed was executed by

Narendrajeet Kaur in his favour. He is not executant of the second sale

deed.

The Supreme Court in case of Md. Ibrahim (supra) while

discussing the forgery and making of false document held as under:-

.........In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by 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 dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.

In case of Sheila Sebastian(supra), the Supreme Court relying on

Md. Ibrahim (supra) held as under:-

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

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

In both the referred matters, the sale deed was executed by the

person who had no title on the land comprised in the sale deed/ power of

attorney.

In the present case, the appellant executed earlier sale deed in

favour of the complainant Prajeet Singh Chahal on the basis of power of

attorney executed by owner of land i.e. co-accused Narendrajeet Kaur.

The appellant and Narendrajeet Kaur were fully aware that the title of

land stands transferred in favour of Prajeet Singh Chahal on execution of

sale deed dated 22.12.2005. Thereafter, they colluded to defraud Prajeet

Singh Chahal and in furtherance of fraudulent intention to cause wrongful

loss to Prajeet Singh Chahal, Narendrajeet Kaur executed second sale

deed of same land in favour of appellant - Kalvinder Singh. Thus, in view