Madras High Court
Gnanayutham Joseph vs The Superintendent Of Police on 3 November, 2022
Crl.O.P.(MD)Nos.16629 and 19557 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
CRL.O.P.(MD)No.16629 of 2018
and
Crl.M.P(MD)No.7373 of 2018
and
Crl.O.P(MD)No.19557 of 2018
and
Crl.M.P(MD)Nos.7374, 8875, 8876 of 2018
Crl.O.P(MD)No.16629 of 2018:
1.Gnanayutham Joseph
2.G.J.Ebinezar
... Petitioners/Accused Nos.1 & 2
Vs.
1.The Superintendent of Police,
Thoothukudi District,
Thoothukudi.
2.The Additional Superintendent of Police,
Prohibition and Excise,
Thoothukudi. ... Respondents
3.The Inspector of Police,
Maignanapuram Police Station,
Tuticorin District,
Crime No.235/2014. ... Respondent / Complainant
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
Dharmaraj(died)
4.Salamon
5.Sundar Singh
... Respondents 4 & 5
(R-4 & R-5 impleaded as per the order of this Honourable
Court dated 15.03.2022 in Crl.M.P(MD)No.345 of 2022 in
Crl.O.P(MD)No.16629 of 2018 by GJJ)
PRAYER : Criminal Original Petition filed under Section 482 of
Cr.P.C.,to call for the records relating to the impugned final report
pending on the file of the learned Judicial Magistrate, Sathankulam in
C.C.No.02 of 2018 dated 10.12.2017 and quash the same as illegal as
insofar as the petitioners are concerned.
For Petitioners : Mr.V.Angusamy
For R-1 to R-3 : Mr.Sakthikumar
Government Advocate(Crl.)
For R-5 and R-6 : Mr.S.T.Sasidharan Tamilkani
Crl.O.P(MD)No.19557 of 2018:
S.Saravanan ... Petitioner/Accused No.5
Vs.
1.State Represented by
The Inspector of Police,
Meignanapuram Police Station,
Thoothukudi District.
(Crime No.235 of 2014) ... 1st respondent / Complainant
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
2.K.Ponnusamy
Inspector of Police,
Meignanapuram Police Station,
Thoothukudi District. ... Investigation Officer
3.S.Dharmaraj ... 3rd respondent/Defacto complainant
PRAYER : Criminal Original Petition filed under Section 482 of
Cr.P.C.,to call for the records and quash the charge sheet in
C.C.No.02 of 2018 on the file of the learned Judicial Magistrate,
Sathankulam, Thoothukudi District as against the petitioner herein.
For Petitioner : Mr.K.Veilmuthu
For R-1 : Mr.Sakthikumar
Government Advocate(Crl.)
For R-2 : No Appearance
For R-3 : Mr.S.T.Sasidharan Tamilkani
COMMON ORDER
These Criminal Original Petitions have been filed to quash the
proceedings in C.C.No.02 of 2018 pending on the file of the learned
Judicial Magistrate, Sathankulam, Thoothukudi District.
2. There are totally five accused persons in this case and the
petitioners are A-1, A-2 and A-5. The allegation that has been made in
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
the final report is that the defacto complainant and A-1 are brothers.
A property was owned by the father Arokia Samuel in Survey No.286/7
measuring an extent of 3.95 cents and there was also a house constructed
bearing Door No.6/107. After the demise of Arokia Samuel, there was no
partition. The grievance of the defacto complainant is that A-1 had
executed a settlement deed in favour of A-2, who is the son of A-1
through a document dated 07.10.2014 and had settled an extent of
2.52 cents. According to the defacto complainant, it amounts to creation
of false document and cheating and on that ground, the final report has
been laid against the accused persons. A-5 has been added as an accused
on the ground that he was the Sub-Registrar who had registered the
document.
3. This Court heard the learned counsel appearing on either side
and carefully went through the materials placed before this Court.
4. In the considered view of this Court, the present case is a text
book case for abuse of process of criminal law. According to the
defacto complainant, A-1 had created a false document by executing a
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
settlement deed in favour of his son A-2. In order to constitute an
offence of forgery, it must be first be established that a false document
was created by the accused persons.
5. It must be borne in mind that if there is no creation of false
document, then automatically the offence of forgery must fall. This issue
is no longer res integra and it has been substantially dealt with by the
Apex Court in Mohammed Ibrahim and others Vs. State of Bihar and
another reported in 2009 (8) Supreme Court Cases - 751. The relevant
portions in the judgment are extracted hereunder :
"14. An analysis of section 464 of 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.
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
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 by
someone else; or (ii) he altered or tampered a
document; or (iii) he obtained a document by
practicing deception, or from a person not in
control of his senses.
15. The sale deeds executed by first
appellant, clearly and obviously do not fall under
the second and third categories of `false
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
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 complainant's
land (and that accused 2 to 5 as the purchaser,
witness, scribe and stamp vendor colluded with
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
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.
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
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."
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
6. It will also be relevant to take note of the judgment of the Apex
Court in Sheila Sebastian Vs. R.Jawaharaj and another reported in
2018 (7) Supreme Court Cases - 581. The relevant portions in the
judgment are extracted hereunder :-
"21. It is observed in the case Md. Ibrahim
and Ors. vs. State of Bihar and Anr., (2009) 8
SCC 751 that- (SCC P.756, para 14)
"14.....a person is said to have made a `false
document', if
(i) he made or executed a document
claiming to be someone else or authorised by
someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing
deception, or from a person not in control of his
senses.”
22. In Md. Ibrahim (supra), this Court had
the occasion to examine forgery of a document
purporting to be a valuable security (Section 467,
IPC) and using of forged document as genuine
(Section 471, IPC). While considering the basic
ingredients of both the offences,this Court
observed that to attract the offence of forgery as
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
defined under Section 463, IPC depends upon
creation of a document as defined under Section
464, IPC. It is further observed that mere
execution of a sale deed by claiming that property
being sold was executant's property, did not
amount to commission of offences punishable
under Sections 467 and 471, IPC even if title of
property did not vest in the executant.
23. The Court in Md. Ibrahim (supra)
observed that: (SCC P.757, Paras 16-17)
“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
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
documents', it is not sufficient that a document
has been made or executed dishonestly or
fraudulently. There is a further requirement that it
should have been made with the intention of
causing it to be believed that such document was
made or executed by, or by the authority of a
person, by whom or by whose authority he knows
that it was not made or executed.
17. When a document is executed by a
person claiming a property which is not his, he is
not claiming that he is someone else nor is he
claiming that he is authorised by someone else.
Therefore, execution of such document
(purporting to convey some property of which he
is not the owner) is not execution of a false
document as defined under Section 464 of the
Code. If what is executed is not a false document,
there is no forgery. If there is no forgery, then
neither Section 467 nor Section 471 of the Code
are attracted."
24. In Mir Nagvi Askari vs. Central Bureau
of Investigation, (2009) 15 SCC 643, this Court,
after analysing the facts of that case, came to
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
observe as follows: (SCC P.687, Para 164)
“164.A person is said to make a false
document or record if he satisfies one of the
three conditions as noticed hereinbefore and
provided for under the said section. The first
condition being that the document has been
falsified with the intention of causing it to be
believed that such document has been made
by a person, by whom the person falsifying
the document knows that it was not made.
Clearly the documents in question in the
present case, even if it be assumed to have
been made dishonestly or fraudulently, had
not been made with the intention of causing
it to be believed that they were made by or
under the authority of someone else. The
second criteria of the section deals with a
case where a person without lawful authority
alters a document after it has been made.
There has been no allegation of alteration of
the voucher in question after they have been
made. Therefore, in our opinion the second
criteria of the said section is also not
applicable to the present case. The third and
final condition of Section 464 deals with a
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
document, signed by a person who due to his
mental capacity does not know the contents
of the documents which were made i.e.
because of intoxication or unsoundness of
mind, etc. Such is also not the case before us.
Indisputably therefore the accused before us
could not have been convicted with the
making of a false document.
25. Keeping in view the strict interpretation
of penal statute 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
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read together. ‘Forgery’ and ‘Fraud’ are
essentially matters of evidence which could be
proved as a fact by direct evidence or by
inferences drawn from proved facts. In the case in
hand, there is no finding recorded by the trial
Court that the respondents have made any false
document or part of the document/record to
execute mortgage deed under the guise of that
‘false document’. Hence, neither respondent no.1
nor respondent no.2 can be held as makers of the
forged documents. It is the imposter who can be
said to have made the false document by
committing forgery. In such an event the trial
court as well as appellate court misguided
themselves by convicting the accused. Therefore,
the High Court has rightly acquitted the accused
based on the settled legal position and we find no
reason to interfere with the same."
7. It is clear from the above judgments that in order to
constitute the offence of creation of false documents, it must be
established that the accused persons had made or executed a document
claiming to be someone else or he was authorized by someone else (in
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
short impersonation) or he altered or tampered with a document (forgery)
or he obtained the document by practicing deception, or from a person,
who is not in a control of his senses.
8. When the above test is applied to the facts of the present
case, it is seen that the settlement deed executed by A-1 in favour of A-2
cannot by any stretch be called as a false document. If it is not a false
document, then the offence of forgery is not made out. There is no
question of cheating that is involved in this case since A-1 has not
executed settlement for the entire property. If according to the defacto
complainant, he is entitled to a share in the property, he has to initiate
proceedings for partition and division of property and for allotment of his
share in the property. Without opting for this relief, the defacto
complainant has unnecessarily set the criminal law in motion. It is quite
unfortunate that a Sub-Registrar has been added as an accused in this
case only on the ground that he had registered the document. He has
been added by taking advantage of Section 109 of I.P.C., as if he has
abetted the crime.
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
9. In the considered view of this Court, the continuation of the
proceedings against the accused persons clearly amounts to an abuse of
process of Court and the same requires the interference of this Court
under Section 482 Cr.P.C. This Court is inclined to interfere with the
proceedings not only against the petitioners, but also against A-3 and A-4
who were witnesses to the document.
10. In view of the above discussion, the proceedings in
C.C.No.02 of 2018 pending on the file of the Judicial Magistrate,
Sathankulam, is hereby quashed in its entirety and accordingly, both the
Criminal Original Petitions are allowed. Consequently, connected
Miscellaneous Petitions are closed.
03.11.2022
Index: Yes/No
Internet: Yes/No
pm
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
To
1.The Judicial Magistrate,
Sathankulam.
2.The Superintendent of Police,
Thoothukudi District,
Thoothukudi.
3.The Additional Superintendent of Police,
Prohibition and Excise,
Thoothukudi.
4.The Inspector of Police,
Maignanapuram Police Station,
Tuticorin District,
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)Nos.16629 and 19557 of 2018
N.ANAND VENKATESH, J.
pm
Crl.O.P.(MD)Nos.16629 and 19557 of 2018
03.11.2022
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