Madras High Court
M.Subramaniya Prabhu vs The State Of Tamil Nadu Rep. By on 14 March, 2025
Crl.R.C.(MD)No.541 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 27.02.2025
Pronounced on : 14.03.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.541 of 2024
and
Crl.M.P.(MD)No.5611 of 2024
1.M.Subramaniya Prabhu
2.M.Eswaraprasath ... Petitioners
Vs.
1.The State of Tamil Nadu rep. by
The Inspector of Police,
DCP. ALGSC Nagercoil,
Kanyakumari District.
(Crime No.33 of 2014)
2.N.Ilayaperumal
(R2 is suo-motu impleaded as per order of the Court
dated 12.07.2024 in Crl.MP(MD)No.5611 of 2024
in Crl.RC(MD)No.541 of 2024) ... Respondents
Prayer : This Criminal Revision Case filed under Section 397 & 401(1)
Cr.P.C., to call for the records in C.M.P.No.1320 of 2024 in C.C.No.920 of
1/18
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
Crl.R.C.(MD)No.541 of 2024
2023, on the file of the learned Judicial Magistrate No.I, Nagercoil dated
25.03.2024 and set aside the same.
For Petitioners : Mr.V.Balaji Rajaram
For R1 : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
For R2 : Mr.M.Suri
ORDER
The Criminal Revision is directed against the order passed in
Crl.M.P.No.1320 of 2024 dated 25.03.2024 on the file of the Court of the
Judicial Magistrate No.I, Nagercoil, dismissing the petition for discharge
filed under Section 239 of the Code of Criminal Procedure.
2. On the basis of the complaint lodged by the second respondent,
FIR came to be registered in Crime No.33 of 2014 dated 13.06.2014
against five persons including the petitioners for the alleged offences
under Sections 420, 465, 468 and 471 IPC. The first respondent, after
completing the investigation, has laid the final report against three persons
including the petitioners for the alleged offences under Sections 420, 465,
468 and 471 IPC as the other two accused named in the FIR were reported
dead and that the case was taken cognizance in C.C.No.1232 of 2022 on
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
the file of the Special Court for Land Grabbing Cases, Tirunelveli.
Pending framing of charges, the petitioners/accused 2 and 3, by invoking
Section 239 Cr.P.C., have filed a petition in Crl.M.P. No.18377 of 2022
seeking discharge from the above case and at that stage, the case was
transferred to the Judicial Magistrate No.I, Nagercoil and renumbered as
C.C.No.920 of 2023 and the discharge petition as Crl.M.P. No.1320 of
2024. The first respondent has filed a counter raising objections. The
learned Magistrate, after enquiry, has passed the impugned order dated
25.03.2024 dismissing the discharge petition. Aggrieved by the order of
dismissal, the present revision came to be filed.
3. Pending revision, the defacto complainant has been suo motu
impleaded as second respondent in the revision.
4. The case of the second respondent/defacto complainant is that
one Easkiammal-mother of the accused Ramasamy Pillai executed a
settlement deed in favour of the accused Ramasamy Pillai in respect of 51
cents of land in New Survey No.148/17 of Arumanalloor Village, Thovalai
Taluk, Kanyakumari District, that the accused Ramasamy Pillai sold 11.5
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
cents out of 51 cents in favour of the second respondent's wife vide sale
deed dated 12.11.1979, that the accused Ramasamy Pillai has then sold
39.5 cents to various persons and thereby he sold the entire property
received through settlement, that the second respondent's wife, after
purchasing 11.5 cents from the accused Ramasamy Pillai, also purchased
1.5 cents for pathway purpose and 12 cents vide document Nos.607/84
and 849/85 on the file of Boothapandi Sub Registrar and thereby she
owned total extent of 25 cents and obtained patta in her favour, that the
accused Manickavasagam Pillai with an ulterior motive in collusion with
the accused Ramasamy Pillai and the first accused Ramalingam Pillai, who
is the son of the accused Ramasamy Pillai and with sole intention to
unlawfully grab the second respondent's wife property by suppressing the
sale to the second respondent's wife, created documents, that the first
accused had executed a forged sale deed in favour of the present
petitioners represented by their father Manickavasagam Pillai, that the
petitioners and their father Manickavasagam Pillai fully knowing that the
property in dispute was already sold to the second respondent's wife had
taken the sale deed by forgery and that since the accused have fabricated a
sale deed in respect of the property which was already sold to the second
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
respondent's wife, the second respondent was constrained to lodge a
complaint.
5. The case of the petitioners/accused 2 and 3 is that the petitioners'
father Manickavasagam Pillai purchased the property in the name of the
petitioners, who were then minors as their guardian in 1992, that the
second respondent's wife has repeatedly approached the petitioners to sell
the property to them, that since the petitioners have resisted the same, the
second respondent's wife has filed a suit in O.S.No.243 of 2016 on the file
of the Sub Court, Nagercoil implicating the petitioners as defendants, that
the second respondent's wife has also filed an application in I.A.No.398 of
2016 and an Advocate Commissioner has been appointed to verify the
total extent of the alleged property, that the learned Advocate
Commissioner, after measuring the property, filed a report stating that no
property has been encroached, that the second respondent challenging the
sale deed executed in favour of the petitioners dated 28.09.1992 has
initiated the above case after the lapse of 30 years and that though the
petitioners are the bonafide purchasers of the alleged property, they have
been implicated as co-accused.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
6. The first respondent, in their counter statement, has stated that a
perusal of all the documents and the statements recorded under Section
161(3) Cr.P.C. and other materials collected would reveal that there
existed prima facie materials for framing charges against the petitioners,
that merits and demerits of the case can be decided only at the trial and not
at this stage and that therefore the very filing of the discharge petition is
not maintainable and as such, the same is liable to be dismissed.
7. As already pointed out, it is the specific case of the second
respondent that after selling 11.5 cents of land in New Survey No.148/17
of Arumanalloor Village, the seller Ramasamy Pillai has executed a
settlement deed in favour of his son Ramalingam Pillai/first accused in
respect of the same property and both of them subsequently executed a
sale deed in favour of the petitioners represented by their father
Manickavasagam Pillai and that thereby the accused have committed
cheating and forgery punishable under Sections 420, 465, 468 and 471
IPC.
8. In the complaint, it has been alleged that though the second
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
respondent's wife has purchased 11.5 cents, the accused have created
documents in respect of 10 cents of land which was already sold. As
rightly pointed out by the learned counsel appearing for the petitioners, the
first respondent in the charge sheet has come to a decision that the accused
Ramasamy Pillai and the first accused instead of selling 9 cents belonging
to them, sold 10 cents of land to the petitioners represented by their father
and thereby they had created a forged document in respect of 1 cents of
land and thereby caused loss to the second respondent's wife.
9. The learned counsel appearing for the petitioners would submit
that when the petitioners purchased the property, the petitioners were
minors and as such, they were not aware of the transactions alleged by the
second respondent. The first respondent in the charge sheet has observed
that the petitioners were minors at that time and their father has purchased
the property in the name of his minor sons in the capacity of guardian.
10. 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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
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 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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
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. 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 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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
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.”
......
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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
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.
The third and final condition of Section
464 deals with a document, signed by a person
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
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 proved facts. In the case in hand,
there is no finding recorded by the trial Court that the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
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 pertinent to note that 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 purchasers are not the
complainants, whereas, the purchasers are made co-accused.
13. It is not the case of the second respondent that the petitioners
tried to deceive him or his wife either by making a false representation or
by any other action or omission. Considering the averments in the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
complaint and also taking note of the charge sheet filed along with the
statements recorded, it cannot be stated that the petitioners by their act of
taking a sale deed from the accused Ramasamy Pillai and his son
Ramalingam Pillai/first accused deceived the second respondent or his
wife in any manner.
14. 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 person to deliver property. It is not the case of the prosecution that
the petitioners have dishonestly induced the second respondent or his wife
to deliver or part with any property.
15. It is pertinent to note that when a sale deed executed by a person
purporting to convey a property, which is not his property, as his property,
is not making a false document and therefore, it cannot be termed as
forgery. The condition precedent for forgery is making a false document. It
is also 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
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
document; or (iii) he obtained a document by practicing deception, or from
a person not in control of his senses.
16. Sections 465, 468 and 471 IPC deal with offences related to
forgery and using forged documents. Section 468 IPC deals with forgery
committed for the purpose of cheating, whereas, Section 471 IPC punishes
anyone who fraudulently or dishonestly uses as a genuine document which
they know or has reason to believe to be forged. In the case on hand,
neither the second respondent nor the prosecution has produced any
material or evidence prima facie to show that the petitioners have
committed any forgery and thereby created any false document and that
too for the purpose of cheating nor they have fraudulently or dishonestly
used the false document as a genuine.
17. But the learned Magistrate, by referring to the legal position
applicable to the discharge petition, without considering the factual
aspects and the materials available on record in proper perspective, by
observing that even assuming that the sale deed was executed with
bonafide intention and that the property belongs to him, the same has to be
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
decided only at the trial as to whether the petitioners committed a bonafide
mistake or not, dismissed the petition.
18. As rightly pointed out by the learned counsel appearing for the
petitioners, it is not the case of the prosecution that the petitioners have
executed any sale deed in favour of anybody, but their father has taken the
sale deed in their name from the accused Ramasamy Pillai and his son and
as such, the above observation of the learned Magistrate cannot made
applicable to the petitioners.
19. Considering the above, this Court has no hesitation to hold that
there are absolutely no material or evidence prima facie to frame charges
against the present petitioners and as such, they are entitled to get
discharge from the above case. Hence, this Court concludes that the
impugned order dismissing the discharge petition cannot be sustained and
the same is liable to be set aside.
20. In the result, this Criminal Revision Case stands allowed and the
impugned order dated 25.03.2024 is hereby set aside. The petitioners shall
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
stand discharged in C.C.No.920 of 2023 on the file of the Judicial
Magistrate No.I, Nagercoil. Consequently, connected Miscellaneous
Petition is closed. No costs.
14.03.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1.The Judicial Magistrate No.I,
Nagercoil.
2.The Inspector of Police,
DCP. ALGSC Nagercoil,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
and
Dated : 14.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/03/2025 12:43:23 pm )
