Madras High Court
P.Alliraja vs The State Of Tamil Nadu on 13 June, 2025
Crl.R.C.(MD).No.205 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 17.04.2025
PRONOUNCED ON : 13.06.2025
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.205 of 2025
P.Alliraja ... Petitioner/Accused No.4
Vs.
1.The State of Tamil Nadu,
represented by the Inspector of Police,
Sankarankovil Taluk Police Station,
Tenkasi District. : 1st Respondent/Complainant
2.R.Rubesh Selvakumar : 2nd Respondent/Defacto complainant
PRAYER: Criminal Revision Petition has been filed under Sections 438 and 422
of BNSS, 2023, to call for records and set aside the order passed in Cr.M.P.No.
1354 of 2024 dated, 24.01.2025, on the file of the learned Judicial Magistrate
Court, Sankarankovil, Tenkasi District.
1/16
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Crl.R.C.(MD).No.205 of 2025
For Petitioner : Mr.G.Thalai Mutharasu
For Respondents : Mrs.M.Aasha
Government Advocate (Crl.Side)
for R.1
: Mr.T.Lenin Kumar
for R.2
ORDER
This Criminal Revision is directed against the order passed in Cr.M.P.No.
1354 of 2024, dated 24.01.2025, on the file of the Court of the Judicial
Magistrate, Sankarankovil under Section 175(3) of BNSS, 2023.
2. The revision petitioner is the proposed accused /fourth respondent in
Cr.M.P.No.1354 of 2024, filed under Section 175(3) of BNSS. The case of the
second respondent/defacto complainant is that the property to an extent of 2.35
acres comprised in Survey Nos.224/3, 224/5 and 224/6 at Sankarankovil, Tenkasi
District came to be owned by one Muppidathi Naicker, S/o Subbiah Naicker as
self-acquired property, that the said Muppidathi Naicker executed a registered
Will dated 15.03.2002 bequeathing the said property in favour of his second son
Poochaiah, that the said Poochaiah along with his siblings sold the said property
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to the complainant and one Muppidathi Muppanar, vide sale deed dated
11.02.2009 and since then the purchasers have been in possession and enjoyment
of the same, that one Rajamani – first respondent in Cr.M.P.NO.1354 of 2024
along with other respondents therein without referring to the earlier title deed
with sole intention to grab the said property, executed documents titled as
“Pagapaathiya Viduthalai Pathiram” fraudulently and got it registered on
03.03.2010 before the Sankarankovil SRO, that the said respondents in order to
escape from the criminal proceedings of cheating, have also created a bogus
unregistered Will dated 18.08.2005 forging the signature of the original owner
Muppidathi Naicker, that the said Rajamani has then filed a suit in O.S.No.9 of
2024, showing some other persons as defendants without impleading the
complainant, that since the said respondents in the said Cr.M.P., had fabricated
documents and attempted to grab the property worth about more than Two
Crores, the complainant was forced to send a complaint to the Sankarankovil
Taluk Police Station through registered post on 23.09.2024, that since there was
no action, the complainant has then sent a complaint to the District
Superintendent of Police, Tenkasi through registered post, that though the
petitioner was summoned by the Sankarankovil Taluk Police, without conducting
any enquiry, directed the complainant to approach the competent civil Court, as
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dispute is of civil in nature and that therefore, the complainant was constrained
to file the above petition under Section 175(3) BNSS for registration of the case
and for investigation.
3. The learned Judicial Magistrate, taking the petition filed under Section
175(3) BNSS on file in Cr.M.P.No.1354 of 2024 and upon perusing the
petitioner's/complainant's affidavit and other available materials, has passed the
impugned order dated 24.01.2025, directing the concerned police to conduct a
detailed enquiry and submit a report and also directed the concerned police that
if any cognizable office is made out during the enquiry, to register a F.I.R.,
against the accused. Aggrieved by the impugned order, the present revision
came to be filed.
4. The complainant's main contention is that himself along with one
Muppidathi Muppanar purchased the property to an extent of 2.35 Acres in
S.Nos.224/3, 224/5 and 224/6 at Sankarankovil, from one Poochiah – second son
of Muppidathi Naicker who was owning the property originally. It is the specific
case of the complainant that the said Muppidathi Naicker executed a Will in
favour of his son Pochaiah on 15.03.2002 bequeathing the said property and the
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said Poochaiah along with his siblings sold the property to the defendant and
another.
5. The learned Counsel for the defendant would submit that the said
Poochaiah alone has executed the sale deed, but his siblings had subscribed their
signatures as attestors to the sale deed and that since the date of sale deed on
11.02.2009, the complainant and the said Muppidathi Muppanar have been in
possession and enjoyment of the property as absolute owner therefor.
6. It is the case of the complainant that one Rajamani, the first respondent
in Cr.M.P., along with other respondents in an attempt to grab the said property
created two bogus documents by forgery and cheating and that they have
fabricated a document styled as “Pagapaathiya Viduthalai Pathiram” as if the
same was executed by Chinna Muppidathiyammal – second wife of Muppidathi
Naicker in favour of the said Rajamani and the second document is the Will
alleged to have been executed by Muppidathi Naicker in favour of his second
wife Chinna Muppidathiyammal. Even according to the complainant,
“Pagapaathiya Viduthalai Pathiram” dated 03.03.2010 is a registered document
vide registration No.955/2010, on the file of the Sankarankovil SRO and that the
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Will dated 18.08.2005 is an unregistered document. It is evident from the
records that the complainant has added the present revision petitioner who is an
Advocate by profession as if he colluded with the other respondents and
authored the disputed documents and that the other respondents are the witnesses
to the said documents.
7. As already pointed out, even according to the complainant, the said
Rajamani had also filed a civil suit in O.S.No.9 of 2024 and the same is pending
on the file of the Subordinate Court, Sankarankovil. As rightly contended by the
learned Counsel for the petitioner, the validity and the legality of the documents
canvassed in both sides cannot be gone into by the police authorities, more
particularly when a civil dispute is pending.
8. As rightly contended by the learned Counsel for the petitioner, the Will
is not a compulsory registerable document and that even a registered Will can be
cancelled by an unregistered Will and as such, just because the Will claimed by
the said Rajamani is an unregistered document, that by itself is not a ground to
entertain any suspicion over the document and it is for the concerned
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propounders of the Will to prove their respective Wills and it is for the concerned
competent civil Court to decide about the genuineness of the same.
9. At this juncture, it is necessary to refer the judgment of the Hon'ble
Supreme Court in Md. Ibrahim and others Vs. State of Bihar and another
reported in (2009) 8 SCC 751, relied on by the learned counsel appearing for the
petitioners,
“12. .... 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
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made or executed. 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.”
10. It is also necessary to refer the judgment of the Hon'ble Apex Court in
the case of Sheila Sebastian Vs. R.Jawaharaj and another reported in AIR
2018 Supreme Court 2434,
“19. A close scrutiny of the aforesaid provisions makes it
clear that, Section 463 defines the offence of forgery, while
Section 464 substantiates the same by providing an answer as to
when a false document could be said to have been made for the
purpose of committing an offence of forgery under Section 463,
IPC. Therefore, we can safely deduce that Section 464 defines
one of the ingredients of forgery i.e., making of a false document.
Further, Section 465 provides punishment for the commission of
the offence of forgery. In order to sustain a conviction under
Section 465, first it has to be proved that forgery was committed
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under Section 463, implying that ingredients under Section 464
should also be satisfied. Therefore unless and until ingredients
under Section 463 are satisfied a person cannot be convicted
under Section 465 by solely relying on the ingredients of Section
464, as the offence of forgery would remain incomplete
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of IPC. As
Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a
case dealing with the possession and making of fictitious stamp
wherein he stated that “to make”, in itself involves conscious act
on the part of the maker. Therefore, an offence of forgery cannot
lie against a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs.
State of Bihar and Anr., (2009) 8 SCC 751 that-
“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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......
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 observe as follows:
“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.
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The third and final condition of Section 464
deals with a 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 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
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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.”
11. Bearing the above legal position in mind, let us proceed with the case
on hand. Generally when a sale deed is executed conveying a property claiming
ownership thereto, the purchaser under such a sale deed can allege that the
vendor has cheated him by making a false representation of ownership and
fraudulently induced him to part with sale consideration. In the present case, the
complainant alleged to be the one of the purchasers has not levelled any
complaint against his seller, but against the third party who is claiming
ownership over the property through a registered “Pagapaathiya Viduthalai
Pathiram” alleged to have been executed by his mother Chinna
Muppidathiyammal, who in turn is claiming ownership through an unregistered
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Will executed by her husband Muppidathi Naicker. Though the complainant has
alleged that the Will was fabricated by forging the signature of Muppidathi
Naicker in the year 2005, as already pointed out, even according to the
complainant, he allegedly purchased the property in the year 2009.
12. As rightly contended by the learned Counsel for the petitioner, neither
Muppidathi Naicker during his life time nor his legal heirs including Poochaiah
had chosen to dispute the said document. It is not the case of the complainant
that the revision petitioner or other respondents in Cr.M.P., tried to deceive him
either by making a false representation or by any other action or omission. The
condition precedent for forgery is making a false document. It is pertinent to
note that 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.
13. It is settled law that mere cheating will not attract Section 420 IPC and
it has to be shown that the accused must dishonestly induced cheated persons to
deliver property. It is not the case of the complainant that the respondents
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including the revision petitioner have dishonestly induced the complainant to
deliver or part with any property.
14. Considering the complainant's affidavit and other materials available
on record, this Court has no hesitation to hold that the complainant has been
attempting to give civil dispute a criminal colour, but the learned Magistrate
without considering the above aspect in proper perspective has proceeded to pass
an order with the contradictory directions.
15. In the impugned order, the learned Magistrate observed that a prima
facie case existed against the accused based on the records. However, instead of
directing the police to register an FIR and proceed with the investigation, the
Magistrate decided that a detailed inquiry was necessary. Consequently, the
Magistrate directed the Station House Officer to issue summons, record
statements, and submit a detailed report, with the authority to summon revenue
authorities for clarification if needed. The Magistrate further instructed that if a
cognizable offence is established during the inquiry, an FIR should be registered,
and directed the police to follow the principles laid down by the Supreme Court
in Lalita Kumari v. State of Uttar Pradesh.
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16. The Magistrate's order is self-contradictory, as it initially finds a prima
facie case but then orders a detailed inquiry, suggesting uncertainty about
cognizable offences. Given the attempt to give a criminal colour to a civil
dispute and the flawed order, this Court finds the impugned order unsustainable.
The complainant is free to seek impleadment in the pending civil proceedings
before the Subordinate Court, Sankarankovil.
17. In the result, the Civil Revision Case is allowed and the impugned
order dated 24.01.2025 passed in Cr.M.P.No.1354 of 2024, on the file of the
Judicial Magistrate Court, Sankarankovil is hereby set aside.
13.06.2025
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
SSL
To
1. The Judicial Magistrate Court, Sankarankovil,
Tenkasi District.
2.The Inspector of Police,
Sankarankovil Taluk Police Station, Tenkasi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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K.MURALI SHANKAR, J.
SSL
Pre-Delivery order made in
13.06.2025
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