Madras High Court
Singaravelan vs The State on 3 November, 2022
Crl.O.P.(MD)Nos.16327 & 19045 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)Nos.16327 & 19045 of 2018
and
CRL.M.P.(MD)Nos.7244, 7245, 8504 & 8505 of 2018
1.Singaravelan
2.Easwaran
3.Velayutham Pillai
4.Karuppiah Pillai
5.Ramaraj
6.Palanichamy
7.Jeyamurugan
8.Karuppiah
9.Meenakshisundaram
10.Balamurugan
11.Thangam
12.Jothivel
13.Murugan
14.Nagaraj
15.N.Rajathi
...Petitioners in CRL.O.P.(MD)No.16327 of 2018
1/22
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.16327 & 19045 of 2018
Muthumani ...Petitioner in CRL.O.P.(MD)No.19045 of 2018
Vs.
1.The State, rep. by
The Sub-Inspector of Police,
District Crime Branch, (ALGSC),
Theni,
Theni District.
2.Thavamani ... Respondents in both Crl.O.Ps.
COMMON PRAYER : Criminal Original Petitions filed under Section
482 of Cr.P.C., to call for the records in respect of the proceedings in
C.C.No.13 of 2016 on the file of the Judicial Magistrate cum the Special
Court for Land Grabbing cases, Theni, and quash the same as against
these petitioners as illegal.
For Petitioners in
CRL.O.P.(MD)No.16327 of 2018 : Mr.N.Anantha Padmanaban
for M/s.APN Law Associates
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
For Petitioner in
CRL.O.P.(MD)No.19045 of 2018: Mr.SP.Vijay Nivas
For Respondents : Mr.K.Sanjai Gandhi - for R1
Government Advocate (Crl. side)
: Mrs.S.Ragaventhree - R2
(in both Crl.O.Ps.)
COMMON ORDER
These petitions have been filed by A1 to A9, A11 to A16 and
A17 seeking to quash the proceedings pending on the file of the Judicial
Magistrate-cum-the Special Court for Land Grabbing Cases, Theni, in
C.C.No.13 of 2016.
2. The second respondent / de-facto complainant gave a
complaint to the first respondent to the effect that the land in old survey
No.441/3 and new survey No.441/3C at Aundipatti Village, totally
comprised of 84 cents and the same was sub-divided and an extent of
about 11 cents belongs to the father of the de-facto complainant namely,
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
Paramasivam Pillai. The further case of the second respondent is that
Paramasivam Pillai had four sons and the elder son Sakthivel expired and
yet another son Selvaraj executed a release deed, dated 09.11.1981 in
favour of other family members and the de-facto complainant has also
executed a release deed on 17.02.1983 and relinquished his rights in
favour of family members. Thereafter, a family arrangement was entered
into between the family members on 13.02.1997 and some of the
properties were sold.
3.The grievance of the de-facto complainant is that the share
of the de-facto complainant was also sold without his consent and the
brother of the de-facto complainant namely, Singaravelan along with
other legal heirs created a power of attorney deed and alienated the
property to various persons (A13 to A17). Thus the crux of the
allegations made by the second respondent is that the entire property has
been grabbed by the accused persons by creating false documents and by
cheating the de-facto complainant. When the de-facto complainant
questioned about the same, he was also criminally intimidated by the
accused persons.
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
4. Based on the complaint given by the second respondent,
an FIR came to be registered in Crime No.51 of 2013 by the first
respondent police. The investigation was taken up and a final report was
filed before the Court below for offence under Sections 120-B, 420,
423, 465, 468, 471, and 506(i) IPC as against 17 accused persons.
Aggrieved by the same, A1 to A9, A11 to A16 and A17 have approached
this Court.
5. Heard Mr.N.Anantha Padmanaban, learned counsel
appearing for the petitioners in CRL.O.P.(MD)No.16327 of 2018,
Mr.SP.Vijay Nivas, learned counsel appearing for the petitioner in
CRL.O.P.(MD)No.19045 of 2018, Mr.K.Sanjai Gandhi, learned
Government Advocate (Crl. side) appearing for the first respondent and
Mrs.S.Ragaventhree, learned counsel appearing for the second
respondent in both the cases.
6. The main crux of the argument on the side of the
petitioners is that even if the allegations made in the final report are
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
taken as it is, no offence of forgery or creation of false document has
been made out in this case. It was submitted that the defacto complainant
had already executed a release deed as early as in the year 1983 and he
had no right to even lodge a complaint in this case. That apart, even
assuming that the de-facto complainant has any semblance of right over
the property, he should only agitate his right before the competent civil
Court and the criminal law cannot be set in motion.
7. The learned Government Advocate appearing on behalf of
the first respondent submitted that the property in question was originally
an ancestral property and the de-facto complainant was also entitled for a
share in the property and already a patta was issued in favour of the
father of the second respondent in patta No.1729 for survey No.441/3C
measuring an extent of 11 cents. While-so, the accused persons had
conspired and had dealt with the property belonging to the second
respondent and had created false documents. Hence, the act of the
accused persons clearly amounts to grabbing the property belonging to
the de-facto complainant and consequently, a prima facie case has been
made out. The learned Government Advocate submitted that the inter se
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rights between the parties cannot be gone into in these criminal original
petitions and hence, sought for dismissal of these petitions.
8. The learned counsel appearing on behalf of the de-facto
complainant, apart from adopting the submissions made by the learned
Government Advocate, submitted that as per the family arrangement that
was made on 13.02.1997, the second respondent also had a share and the
same was accepted by the others and while so, the share belonging to the
de-facto complainant cannot be dealt with by the other family members.
Since the share of the second respondent has also been dealt with, it
clearly amounts to creation of false documents and the second respondent
has been cheated and when the same was questioned by the second
respondent, he was abused and was threatened. In view of the same, the
learned counsel submitted that a prima facie case has been made out and
that there is no ground to quash the proceedings.
9. This Court has carefully considered the submissions made
on either side and the materials available on record.
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10. The main ground that has to be considered by this Court
is as to whether based on the allegations made in the final report, whether
an offence of forgery has been made out in this case. The allegations
with regard to the offence of forgery is based on the documents that were
created in favour of A13 to A17, which are termed to be false documents
by the second respondent. 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
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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 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.
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15. The sale deeds executed by 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 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
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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."
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11. 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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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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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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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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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."
12. 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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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.
13. In the present case, the only ground that has been
claimed by the de-facto complainant is that he has a share in the property
as per the family arrangement and his share has also been dealt with by
the accused persons. This allegation will not by any stretch fall within
the requirement of a "false document". If there is no false document as
defined under Section 464 of IPC, the offences under Sections 467, 471
are not made out.
14. Insofar as the offence of cheating is concerned, it is
more a fall out of the primary allegation that the accused persons have
indulged in the act of forgery. In other-words, it is a consequence of the
primary allegation that has been made against the accused persons. If at
all the second respondent has any share in the property and the same has
been dealt with and there is a dispute with regard to the very claim made
by the second respondent, the proper forum for the second respondent to
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agitate his grievance is only before the competent civil Court and
Criminal Law cannot be set in motion. The allegations that have been
made in the final report even if it is taken as it is, does not constitute an
offence of cheating.
15. Insofar as the offence of criminal conspiracy is
concerned, since this Court has found that there is no offence of forgery
or cheating, the offence of criminal conspiracy must also automatically
fall.
16. Insofar as the offence of criminal intimidation is
concerned, apart from the oral threat said to have been made by the
accused persons, there is nothing more even from the materials available
on record.
17. This Court in P.Palanivel Vs. The Inspector of Police,
Velur Police Station, Namakkal District, reported in 2012 (2) MLJ
(Crl.) - 154 has held that mere empty threats by itself will not make out
an offence of criminal intimidation unless there is an evidence to show
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that the threat is a real one. This position of law was once again
reiterated by the Apex Court in Vikram Johar Vs. The State of Uttar
Pradesh and Others reported in 2019(3) MLJ (Crl.) - 295.
18. In view of the above discussion, this Court finds that no
offence has been made out as against the accused persons and
continuation of the criminal proceedings against the petitioners will
amount to abuse of process of Court which requires the interference of
this Court in exercise of its jurisdiction under Section 482 Cr.P.C.
19. In the result, the proceedings in C.C.No.13 of 2016 on
the file of the Judicial Magistrate cum the Special Court for Land
Grabbing Cases, Theni, is hereby quashed and both the Criminal Original
Petitions are accordingly allowed. Consequently, connected
miscellaneous petitions are also closed.
03.11.2022
Index: Yes/No
Internet: Yes/No
rm
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
To
1.The Judicial Magistrate-cum-
the Special Court for Land Grabbing Cases,
Theni,
2.The Sub-Inspector of Police,
District Crime Branch, (ALGSC),
Theni,
Theni District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)Nos.16327 & 19045 of 2018
N.ANAND VENKATESH, J.
rm
CRL.O.P.(MD)Nos.16327 & 19045 of 2018
03.11.2022
https://www.mhc.tn.gov.in/judis
