Madras High Court

B.Chandravarma vs State Rep. By on 28 January, 2022

                                                                                    Crl.O.P.No.11885 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    Dated : 28.01.2022

                                                           CORAM:

                                  THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                               Crl.O.P.No.11885 of 2018 &
                                                Crl.M.P.No.6275 of 2018


                     1. B.Chandravarma
                     2. B.Samrat
                     3. A.R.Nruptunga
                     4. B.G.Manjula                                              ... Petitioners

                                                             Vs

                     1. State rep. by
                        The Inspector of Police,
                        District Crime Branch,
                        Krishnagiri
                        (Crime No.10 of 2018)

                     2. R.Ramakrishnan                                           ... Respondents

                     PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to call
                     for the entire records relating to the Crime No.10 of 2018 on the file of the 1st
                     respondent and quash the same.

                                         For Petitioners    : Mr.R.Ezhilarasan




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                                                                                         Crl.O.P.No.11885 of 2018

                                        For Respondents : R1 – Mr.R.Kishore Kumar,
                                                              Government Advocate (Criminal Side)

                                                             R2 – Mr.Mr.Arun Prakash
                                                                  for A.V.Raja


                                                              ORDER

This Criminal Original Petition has been filed to quash the First

Information Report in Crime No.10 of 2018 on the file of the 1 st respondent

Police registered against the petitioners for the offences punishable under

Sections 420, 406, 465, 471, 468 and 506(i) of IPC.

2. The crux of the allegation in the F.I.R. is that the defacto complainant

purchased to an extent of 5.41 cents on 12.10.2007 from the first accused and

others. Thereafter, in the year 2011-12, the accused have created a Power of

Attorney and also sold certain properties and also entered into a partition deed

among themselves. Thereby, the First Information Report has been registered.

3. It is the contention of the learned counsel for the petitioner that the

allegation that the accused have not fraudulently created any documents and

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they have dealt with the property as their own property. Hence, offence of

cheating and forgery is not attracted. Further, the suit in O.S.No.65 of 2010 has

been filed by the first accused and the suit in O.S.No.60 fo 2018 has been filed

by the defacto complainant. The suit filed by the defacto complainant has been

dismissed for default. The entire dispute is with regard to the title of the

properties. Therefore, submitted that the injunction already granted in favour

of the defacto complainant has already been vacated in O.S.No.65 of 2010 by

the Order of this Court in CRP.No.191 and 195 of 2020. Hence, submitted that

present case is nothing but abuse of process of law and the same has to be

quashed.

4. The Order of this Court also indicate that the defacto complainant

though purchased to an extent of 5.41 cents in the year 2007, he has sold to an

extent of 5.86 cents, more than what he has purchased. Further, there are title

dispute between the parties and the same has to resolved only before the Civil

Court. Merely because the accused claiming right over the ancestral property

and dealt with the property as their own property, offences under section 420

and 465 will not be attracted. The documents have been filed on the side of the

petitioner and the accused are claiming right only on the basis of the documents

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of the year 1979 and 1983. Therefore, a person executing a sale deed claiming

that the property as his own cannot be a ground for the offences under sections

420 and 465 IPC.

5. It is relevant to note that to attract the offence under section 420 IPC,

essential ingredients of the offence of cheating are as follows :

(i) deception of a person either by making a false or

misleading representation or by dishonest concealment or by

any other act or omission;

(ii) fraudulent or dishonest inducement of that person to

either deliver any property or to consent to the retention thereof

by any person or to intentionally induce that person so deceived

to do or omit to do anything which he would not do or omit if he

were not so deceived; and

(iii) such act or omission causing or is likely to cause

damage or harm to that person in body, mind, reputation or

property.

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Therefore to constitute an offence under section 420, there should not only be

cheating, but as a consequence of such cheating, the accused should have

dishonestly induced the person deceived to deliver any property to any person.

It is not case of the defacto complainant that the accused have dishonestly

executed sale deed. The main charge itself indicate that the accused have

executed sale deed claiming that the property is their own property.

6. It is further to be noted that in this regard, the apex Court in

Mohammed Ibrahim and others Vs. State of Bihar and another reported in

[2009] 8 SCC 751 in para 20 the Apex Court has held as follows :

18. Let us now examine whether the ingredients of an

offence of cheating are made out. The essential ingredients of

the offence of "cheating" are as follows:

(i) deception of a person either by making a false or

misleading representation or by dishonest concealment or by

any other act or omission;

(ii) fraudulent or dishonest inducement of that person to

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either deliver any property or to consent to the retention thereof

by any person or to intentionally induce that person so deceived

to do or omit to do anything which he would not do or omit if

he were not so deceived; and

(iii) such act or omission causing or is likely to cause

damage or harm to that person in body, mind, reputation or

property.

19. To constitute an offence under section 420, there

should not only be cheating, but as a consequence of such

cheating, the accused should have dishonestly induced the

person deceived

(i) to deliver any property to any person, or

(ii) to make, alter or destroy wholly or in part a valuable

security (or anything signed or sealed and which is capable of

being converted into a valuable security).

20. When a sale deed is executed conveying a property

claiming ownership thereto, it may be possible for the purchaser

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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

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being the witness, scribe and stamp vendor in regard to the sale

deeds, deceived the complainant in any manner.

Applying the above ratio, as the purchaser is not the complainant, for cheating,

offence under section 420 of IPC cannot be attracted.

7. Now with regard to the offence of forgery, it is relevant to note that

Section 464 deals with making of false documents and the same extracted as

follows :

"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;

(d) makes any mark denoting the execution of a document

or the authenticity of the digital signature, with the intention of

causing it to be believed that such document or a part of

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document, electronic record or digital signature was made, signed,

sealed, executed, transmitted or affixed by or by the authority of a

person by whom or by whose authority he knows that it was not

made, signed, sealed, executed or affixed; or Secondly.--Who,

without lawful authority, dishonestly or fraudulently, by

cancellation or otherwise, alters a document or an electronic

record in any material part thereof, after it has been made,

executed or affixed with digital signature either by himself or by

any other person, whether such person be living or dead at the time

of such alternation; or Thirdly.--Who dishonestly or fraudulently

causes any person to sign, seal, execute or alter a document or an

electronic record or to affix his digital signature on any electronic

record knowing that such person by reason of unsoundness of

mind or intoxication cannot, or that by reason of deception

practised upon him, he does not know the contents of the

document or electronic record or the nature of the alteration.

Explanation 1 - A man's signature of his own name may

amount to forgery.

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Explanation 2 - The making of a false document in the name

of a fictitious person, intending it to be believed that the document

was made by a real person, or in the name of a deceased person,

intending it to be believed that the document was made by the

person in his lifetime, may amount to forgery.”

Therefore, to attract offence under sections 467 and 471, the essential

requirement is making of false documents. In this regard also, the Apex Court

in the above judgment in para 16 and 17 has clearly held as follows :

“16. There is a fundamental difference between a person

executing a sale deed claiming that the property conveyed is his

property, and a person executing a sale deed by impersonating

the owner or falsely claiming to be authorised or empowered by

the owner, to execute the deed on owner's behalf. When a person

executes a document conveying a property describing it as his,

there are two possibilities. The first is that he bonafide believes

that the property actually belongs to him. The second is that he

may be dishonestly or fraudulently claiming it to be his even

though he knows that it is not his property. But to fall under first

category of `false documents', it is not sufficient that a document

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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. Section 420 IPC ”

8. When a person has executed a sale deed by impersonating the owner

or falsely claiming to be authorised or empowered by the owner, to execute the

deed on owners behalf, then it can be said that there is a making of false

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document. But when the document itself executed by the person claiming to be