Madras High Court
A.Muthukumar vs The State Rep. By on 17 July, 2023
2023:MHC:3638
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.07.2023
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
and Crl.M.P.Nos.367 of 2022 & 9996 of 2021
1.A.Muthukumar
2.J.Navin ... Petitioners in
Crl.O.P.No. 958 of 2022
1.M.Ganesa Naicker
2.G.Gajemdram
... Petitioners in
Crl.O.P.No.18164 of 2021
Vs.
1.The State Rep. By
The Inspector of Police,
District Crime Branch,
Chengalpet, Chengalpet District.
2. A.Kabilan ... Respondents in
both Crl.O.Ps.
Prayer in both Crl.O.Ps: These Criminal Original Petitions filed under Section
482 Cr.P.C., to call for the entire records in Crime No.4 of 2021 pending on the
file of the first respondent police and quash the same.
For Petitioner
in Crl.O.P.No.958/2022 : Mr.N.R.Elango Senior Counsel for
Mr.N.Kumanan
https://www.mhc.tn.gov.in/judis
For Petitioner
in Crl.O.P.No.18164/2021 : Mr.N.R.Elango Senior Counsel for
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
Mr.P.C.Hari Kumar
For R1 in both
Crl.O.Ps. : Mr.A.Gopinath
Government Advocate (Criminal Side)
For R2 in both
Crl.O.Ps. :Mr.R.John Sathiyan (Senior counsel) for
Mr.A.Kumara Guru
COMMON ORDER
These petitions have been filed to quash the FIR in Crime No.04 of 2021,
pending investigation before the Inspector of Police, District Crime Branch,
Chengalpet.
2. The second respondent gave a complaint to the first respondent to the
effect that the subject properties were purchased by the second respondent
through registered sale deeds that were executed in the year 1992 and 1995 and
he was in possession and enjoyment of the properties that were covered under
these documents. The second respondent also took steps to get his name entered
in the Revenue Records. Out of the total extent of 5.30 acres, the second
respondent had obtained DTCP approval for a residential lay-out for an extent of
2.65 acres and the second respondent had further obtained RERA approval
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through proceedings dated 02.12.2020. While so, one Gajendiran (A2)
approached the second respondent and started claiming right over a portion of
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
the property in Survey Nos.2B/3 and 2B/4.
3. The second respondent immediately made an inspection and he came to
know that one Ganesa Naicker (A1), who had sold the properties to the vendors
of the second respondent, had fraudulently executed settlement deed in favour of
his son Gajendiran (A2), during the year 2013. According to the second
respondent, a property which has already been sold, was once again dealt with
by the father and son and thereby, they intentionally attempted to create an
encumbrance over the properties.
4. The further case of the second respondent is that A2 had created further
documents by entering into an agreement of sale dated 30.05.2014 with one
Muthukumar(A3) and Naveen (A4) and also a mortgage deed dated 19.08.2014.
According to the second respondent, A3 and A4 are also aware of the entire facts
and they have joined A1 and A2 and have created documents and thereby, they
are attempting to create more encumbrance over the properties.
5. Hence, the second respondent filed a petition before the District
Registrar under the Registration Act questioning the documents that were
created by the accused persons. The District Registrar, by order dated
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05.07.2021, found that all the documents have been created only to defeat the
rights of the second respondent and the documents were held to be fabricated
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
documents and accordingly, a direction was issued to the concerned Sub
Registrar to initiate criminal proceedings under Section 83 of the Registration
Act. Pursuant to the same, the second respondent gave a complaint before the
first respondent and the first respondent registered an FIR in Crime No.4 of
2021 on 26.08.2021. This FIR has been put to challenge in these petitions by all
the accused persons namely A1 to A4.
6. Heard the learned counsel for the petitioners and the learned
Government Advocate (Crl.Side) appearing for the first respondent and
Mr.R.John Sathiyan Senior Counsel appearing for the second respondent.
7. It was brought to the notice of this Court that the order passed by the
District Registrar was further confirmed by the Deputy Inspector General of
Registration through order dated 21.11.2022.
8. This Court has carefully considered the submissions made on either
side and perused the materials available on record.
9. In the instant case, the role played by A1 and A2 has to be first taken
into consideration. The specific case of the second respondent is that A1 had
https://www.mhc.tn.gov.in/judis
already sold his share of the properties to the vendors of the second respondent
and despite the same, he once again dealt with the very same properties by
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
executing the settlement deeds in favour of his son A2 on 13.03.2013.
10. The above act on the part of A1 will primafacie fall within the scope of
Section 463 and 464 of IPC. This Court had an occasion to deal with the issue
in detail reported in 2018 (3) MWN (Criminal) 487 [T.Muthuramalingam Vs.
Inspector of Police, District Crime Branch, Theni, Theni District]. The
relevant portions are extracted hereunder:
13. With regard to allegations of false documents, it
will be useful to rele to the Judgment of the Supreme Court
of India in Mohd. Ibrahim v. State of Biharm, 2009 (3)
SCC (Crl) 929. The relevant portion of the Judgment is
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.
https://www.mhc.tn.gov.in/judis
(2) The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a
document in any material part, without lawful authority,
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
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 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
https://www.mhc.tn.gov.in/judis
of the said Sale Deeds) would bring the case under the
first category.
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
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
https://www.mhc.tn.gov.in/judis
Owner) is not execution of a false document as defined
under Section 464 of the Code. If what is executed is not a
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
false document, there is no forgery. If there is no forgery,
then neither Section 467, nor Section 471 of the Code are
attracted."
11. It is clear from the above decision that an offence of forgery can also
be committed by a person who dishonestly or fraudulently claims the property to
be his, even though he knows that it is not his property. That is exactly the
allegation that has been made as against A1 and A2 to the effect that the
properties were already sold in the year 1992 and 1995 and whereas it was once
again dealt with in the year 2013. In view of the same, this act on the part of A1
and A2 requires investigation by the first respondent police.
12. The next issue to be considered is the role played by A3 and A4. A3
and A4 came into the scene only in the year 2013 and 2014 by virtue of the sale
agreement dated 30.05.2013 and the mortgage deed dated 19.08.2014. There is
no allegation against them that A3 and A4 had come into the scene even in the
year 2013. Therefore, if A3 and A4 were not in the scene when the settlement
deeds were executed in the year 2013, it is too far-fetched to make them an
accused in this case, since they have gone by the settlement deed that was
executed by A1 in favour of A2 and have entered into transactions with A2.
Based on the materials available on record, it is seen that A3 and A4 cannot be
roped in as accused persons at this stage. At the best, they can be made as
witnesses and statements can be recorded from A3 and A4. Ultimately, at the
https://www.mhc.tn.gov.in/judis
time of filing of the final report or during the course of enquiry/trial, if materials
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
come forth regarding the involvement of A3 and A4, they can always be added
as accused to proceed against them. For the present, the Investigation Officer
must proceed with the investigation by adding A1 and A2 as accused persons
and by collecting the statements of A3 and A4 under Section 161(3) Cr.P.C.
Hence, the investigation in Crime No.4 of 2021 as against A3 and A4 is
interfered at this stage.
13. In the light of the above discussion, Crl.O.P.No.18164 of 2021 is
hereby dismissed and Crl.O.P.No.958 of 2022 is allowed to the extent stated
herein above. There shall be a direction to the first respondent police to
complete the investigation in Crime No.4 of 2021 within a period of four months
from the date of receipt of a copy of this order and file a final report or a closure
report as the case may be, before the concerned Jurisdictional Court.
Consequently, connected miscellaneous petitions are closed.
17.07.2023
Speaking Order/Non-speaking Order
Index :Yes/No
Internet:Yes/No
mpa
To
https://www.mhc.tn.gov.in/judis
1.The Inspector of Police,
District Crime Branch,
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
Chengalpet, Chengalpet District.
2.The Public Prosecutor,
Madras High Court,
Chennai.
N.ANAND VENKATESH,J.
mpa
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
Crl.O.P.Nos.958 of 2022 & 18164 of 2021
and Crl.M.P.Nos.367 of 2022 & 9996 of 2021
17.07.2023
https://www.mhc.tn.gov.in/judis
