Madras High Court
Nammalwar vs The State Rep.By on 7 August, 2023
Crl.O.P.(MD)No.9413 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.08.2023
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
Crl.O.P.(MD)No.9413 of 2019
and
Crl.M.P.(MD)No.5987 of 2019
Nammalwar ... Petitioner
Vs.
1.The State Rep.by
The Inspector of Police,
SIPCOT Police Station,
Thoothukudi District.
(Crime No.211 of 2019)
2.S.Thangaraj ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records pertaining to the case
in Crime No.211 of 2019 pending on the file of the Inspector of Police,
SIPCOT Police Station, Thoothukudi District and quash the same as
against the petitioner.
1/12
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Crl.O.P.(MD)No.9413 of 2019
For Petitioner : Mr.R.Anand
For R1 : Mr.M.Sakthi Kumar,
Government Advocate (Crl. Side)
For R2 : Mr.P.P.Alwin Balan
ORDER
This Criminal Original Petition has been filed to quash FIR in
Cr.No.211 of 2019 pending on the file of the Inspector of Police,
SIPCOT Police Station, Thoothukudi District as against the petitioner.
2.According to the petitioner, he has been shown as an accused in
FIR in Cr.No.211 of 2019 pending on the file of the first respondent,
which was registered based on the complaint given by the second
respondent, for the offence under Sections 420, 465, 467 and 468 IPC.
According to the petitioner, the occurrence in question is said to have
been taken place on 19.06.2018, for which, the second respondent
preferred a complaint before the first respondent and based on the same,
FIR was registered on 04.06.2019 as against five persons, in which the
petitioner herein is arrayed as A3. According to the defacto complainant,
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Crl.O.P.(MD)No.9413 of 2019
the property in S.No.113/2 measuring to the extent of 1 acre 30 cents was
originally purchased by his father, namely Samuel, through a sale deed
dated 04.01.1965 and he died on 07.03.1986. The said Samuel had five
sons and two daughters. The said two daughters relinquished their right
through deed dated 10.07.1981 and 28.04.1980 respectively. Thereafter,
the said five sons filed partition suit in O.S.No.51 of 1995 and
partitioned the said property among themselves through a decree dated
27.04.2012. While facts are being so, A1, by name Samuel, by claiming
right over the said property, has appointed A1 as his power agent on
23.03.2018 and on the strength of the same, an extent of 75.681 has been
sold to the petitioner through sale deed dated 18.07.2018 through
document No.1801 of 2018. In respect of the remaining property, A1 on
06.07.2018, has sold 10.11 cents to A4 and on the same day 10.68 cents
to A5. It is further case of the defacto complainant that even prior to the
execution of the said sale deed, on 19.06.2018, A2, vide document Nos.
645/18 and 546/18 has sold 5.10 cents and 5.05 cents to A5. According
to the defacto complainant, A1 has neither sempulance of right nor
having the capacity of dealing with the said property. Further, according
to the petitioner, the allegations referred in FIR cannot be made as a
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Crl.O.P.(MD)No.9413 of 2019
subject matter for investigation at the instance of the police party and
FIR is liable to be quashed.
3.The second respondent filed counter by alleging that A3, who
had entered into a sale agreement with A1, represented by his power
agent A2. The petitioner in connivance with A4 husband, who was then
Sub Registrar of Pudur, has registered a fraudulent power deed. The
petitioner herein has entered into the sale agreement, which was within
his knowledge that the above sale agreement was in pursuant to the
forged power deed, created with an intend to grab the property. The
petitioner had knowledge of the fraudulent deed prior to the sale
agreement. The petitioner and others conspired together and made
fraudulent documents with an intention to grab the properties. The
principal of the forged power deed, namely Samuel, was born on
08.03.1973 and his age as on today is 48. While so, at the time of
execution of patta, he must be only 11 years. Thus, it is clear the
mentioning of father’s name in the patta issued during UDR is only a
mistake and the same was taken advantage by the petitioner to create
forged deeds. Hence, the defacto complainant preferred the complaint
and this petition is liable to be dismissed.
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Crl.O.P.(MD)No.9413 of 2019
4.The learned counsel appearing for the petitioner would contend
that A1, being owner of the property, executed power deed in favour of
A2 dated 23.03.2018 and thereafter, so many sale transactions were
happened. The petitioner herein entered into an agreement with A2, who
is power agent of A1 on 18.07.2018. The petitioner has paid
Rs.25,00,000/- towards advance and thereafter, he came to know that A1
and A2 impersonated and created forged document and thereby, the
second respondent caused paper publication on 05.01.2019 by stating all
the happenings and thereafter, FIR has been registered on 04.06.2019.
The petitioner also gave a complaint as against A1 and A2 before the
police and thereafter, A1 and A2 repaid Rs.20,00,000/- and remaining
amount of Rs.5,00,000/- is yet to be paid. The petitioner has no intention
to cheat the defacto complainant and further the petitioner has also been
cheated by A1 and A2. The petitioner only intended to purchase the
property. After seeing all the records, which were prepared by A1 and
A2, he found the encumbrance and he also verified the patta and then
only, he entered into agreement. Now, the petitioner is ready to execute
cancellation deed to the defacto complainant. Even according to FIR, no
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Crl.O.P.(MD)No.9413 of 2019
offence is made out as against the petitioner and the so called power deed
has been executed between A1 and A2 and the petitioner being
agreement holder, no way connected with the forged document and
thereby, FIR is liable to be quashed.
5.The learned counsel appearing for the second respondent would
contend that A1 and A2 have created forged documents and based on the
same, A3 entered into sale agreement with A2 and if the petitioner
cancelled the sale agreement then, he has no objection to quash FIR.
6.The learned Government Advocate(Crl.side) appearing for the
first respondent would contend that based on the complaint given by the
second respondent, FIR has been registered in Cr.No.211 of 2019 for the
offences under Sections 420, 465, 467 and 468 IPC and the same is at
initial stage. So many transactions have been made and thereby,
elaborate investigation is required in this case. Hence, he strongly
opposed to quash FIR.
7.Heard both sides and perused the materials available in the
records.
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Crl.O.P.(MD)No.9413 of 2019
8.On perusal of records shows that the main allegations are against
A1 and A2. According to FIR, they only created forged document,
impersonated and executed deed. According to the petitioner, he only
intended to purchase the property and paid advance amount of
Rs.25,00,000/-. Thereafter, he came to know that A1 and A2 have no
right over the property. Immediately, he came to know about the paper
publication on 05.01.2019 and thereby, the petitioner gave complaint as
against A1 and A2 for repayment of advance amount. Therefore, this
petitioner being agreement holder has no nexus with the other accused.
Entire allegations are against A1 and A2. Though the case is in the stage
of FIR, on perusal of the same, no offence is made out as against the
petitioner and he is agreement holder and thereby no offence is made out.
9.The learned counsel appearing for the petitioner relied upon the
judgment of the Hon’ble Supreme Court in a case of Sheila Sebastian Vs.
R.Jawaharaj reported in (2018) 2 LW (Cri)962, wherein Hon’ble
Supreme Court held as follows:-
25.Keeping in view the strict interpretation of penal
statute i.e., referring to rule of interpretation wherein
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Crl.O.P.(MD)No.9413 of 2019
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
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.
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Crl.O.P.(MD)No.9413 of 2019
10.In a case of Mohammed Ibrahim and others Vs. State of Bihar
and another reported in (2009)8 SCC 751, the Hon’ble Supreme Court
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 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
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Crl.O.P.(MD)No.9413 of 2019
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.
11.On careful reading of those judgments it is clear that even when
a document is executed by a person claiming a property which is not his,
there does not by itself satisfy the requirements of false documents as
defined under Section 464 IPC and making a document is is different
than casting it to be made, only one who makes a false document can be
held liable under the provisions of Section 464 IPC. In the case on hand,
this petitioner has not made any false document and he is an agreement
holder.
12.At this juncture, the learned counsel appearing for the second
respondent has represented that this Court may direct the petitioner to
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Crl.O.P.(MD)No.9413 of 2019
execute cancellation deed with regard to the said agreement. It is for the
petitioner and the second respondent to take steps for cancelling the sale
agreement and this Court cannot form any opinion with regard to the
cancellation of sale agreement.
13.In view of the above discussion, FIR in Cr.No.211 of 2019
pending on the file of the first respondent police is quashed as against the
petitioner herein. Accordingly, this criminal original petition is allowed.
Consequently, connected miscellaneous petition is closed.
07.08.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gns
To
1.The The Inspector of Police,
SIPCOT Police Station,
Thoothukudi District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.9413 of 2019
P. DHANABAL,J.
gns
Crl.O.P.(MD)No.9413 of 2019
07.08.2023
https://www.mhc.tn.gov.in/judis
