Madras High Court
N.Moorthy vs State Represented By on 21 June, 2023
Crl.O.P.No.15614 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.06.2023
CORAM:
THE HON'BLE MR.JUSTICE SUNDER MOHAN
Crl.O.P.No.15614 of 2021
and
Crl.M.P.Nos.8511 and 8514 of 2021
1. N.Moorthy
2. M.Manjula ... Petitioners
Vs.
1. State Represented by,
The Inspector of Police,
Anti Land Grabbing Cell,
Thiruvallur.
2. A.Velankanni ... Respondents
PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C., to
call for the records in C.C.No.95 of 2021 pending on the file of the learned
Judicial Magistrate, Thiruvallur-II and to quash the same against the
petitioners.
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.15614 of 2021
For Petitioner : Mr.R.Rajkumar
For Respondents :
For R1 : Mr.A.Damodaran
Additional Public Prosecutor
For R2 : No Appearance
ORDER
The Petition is to quash the final report for the alleged offences
under Sections 420, 467, 468, 471, 120 (b), 506(1), 34 of IPC.
2. It is alleged in the final report that A1 had sold the property to
the de facto complainant and thereafter, executed power of attorney in favour
of A2/first petitioner herein and on the strength of the said power of attorney,
A2 had executed a Sale Deed in favour of A3/second petitioner herein.
3. The learned counsel for the petitioners would submit that they
are the bonafide purchasers for valid consideration and they have nothing to
do with the alleged offences committed by A1; that on coming to know that
A1 had sold the property to the defacto complainant, they had executed a
Deed of Cancellation on 11.11.2011, in respect of power of attorney as well as
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Crl.O.P.No.15614 of 2021
consequential sale deed; that in case, they have not committed cheating or the
offence of forgery as alleged in the final report, even assuming that A1 had
made a false claim of title and sold the properties to A2; that the case would
be covered by the Judgement of the Hon'ble Apex Court in Mohammed
Ibrahim vs. State of Bihar reported in (2009) 8 SCC 751. Hence, he prayed
for quashing of the final report.
4. Learned Additional Public Prosecutor would submit that there
are allegations in the impugned final report to suggest that A2 and A3 had
knowledge of the fact that A1 had sold the property to the defacto
complainant; that merely because they had cancelled the sale deed cannot
absolve them of the offences.
5. Though notice was served on the de facto complainant/second
respondent, none has entered appearance on her behalf.
6. This Court, finds that the allegations against A1 is that after
selling the property to the defacto complainant, he had executed a power of
attorney in favour of A2, who in turn, executed sale deed in favour of A3.
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Crl.O.P.No.15614 of 2021
7. It is the case of false claim of title by A1. The petitioners/A2
and A3 have not neither forged any documents nor have deceived the de facto
complainant. The Judgment of the Hon'ble Supreme Court in Mohammed
Ibrahim vs. State of Bihar (cited supra) would squarely apply to the facts of
this case. The relevant observations are 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 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
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Crl.O.P.No.15614 of 2021
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.
...
20. When a sale deed is executed
conveying a property claiming ownership
thereto, it may be possible for the purchaser
under such sale deed, to allege that the vendor
has cheated him by making a false
representation of ownership and fraudulently
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Crl.O.P.No.15614 of 2021
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 being the witness, scribe and stamp vendor in
regard to the sale deeds, deceived the
complainant in any manner.”
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Crl.O.P.No.15614 of 2021
8. Further, this Court finds that the petitioners have also
cancelled the documents expected in their favour and hence, the defacto
complainant has not suffered any loss.
9. For all the above reasons, this Court, is of the view that the
impugned final report as against the petitioners/A2 and A3 are liable to be
quashed. Hence, this Criminal Original Petition is allowed. Consequently, the
connected Miscellaneous Petitions are closed.
21.06.2023
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
rgm
To
1. The Judicial Magistrate,
Thiruvallur-II.
2. The Public Prosecutor
High Court of Madras,
Chennai – 600 104.
3. The Inspector of Police,
Anti Land Grabbing Cell,
Thiruvallur.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.15614 of 2021
SUNDER MOHAN, J
rgm
Crl.O.P.No.15614 of 2021
and
Crl.M.P.Nos.8511 and 8514 of 2021
21.06.2023
https://www.mhc.tn.gov.in/judis
