Rajasthan High Court - Jodhpur

Mohan Singh And Ors vs State And Ors on 6 April, 2022

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Criminal Misc(Pet.) No. 2288/2018

1. Jeeva Ram son of Roopa Ram, by caste Suthar, resident of Nadol, presently resident of Khinwara, Tehsil & Police Station Rani, District Pali

----Petitioners Versus

1. The State of Rajasthan

2. Preetam Kumar S/o Chhagan Lal, B/c Mewara, R/o Nadol, Teh. Desuri, Rani Police Station, District Pali

----Respondent Connected With (2) S.B. Criminal Misc(Pet.) No. 91/2018

1. Mohan Singh S/o Shri Rawat Singh, By Caste Rajpurohit, Resident Of Nadol, Tehsil Desuri, District Pali.

2. Shanker Singh S/o Shri Bhopal Singh, By Caste Rajpurohit, Resident Of Mundara, Tehsil Bali, District Pali.

3. Hanwant Singh S/o Shri Pratap Singh, By Caste Rajpurohit, Resident Of Mundara, Tehsil Bali, District Pali.

----Petitioners Versus

1. State Of Rajasthan Through Superintendent Of Police, District Pali.

2. Station House Officer, Police Station- Rani, District- Pali.

Raj.

3. Preetam Kumar S/o Shri Chhagan Lal, By Caste Mewara Kalal, Resident Of Near Bus Stand, Nadol, Tehsil Desuri, District Pali.

----Respondents (3) S.B. Criminal Misc(Pet.) No. 591/2018

1. Dalpat S/o Shri Rupa Ram

2. Fancy D/o Shri Rupa Ram

3. Jayanti D/o Shri Rupa Ram, Al Are By Caste Suthar, Police Station Rani, District Pali. Presently Lodged In Central Jail- Jodhpur.

----Petitioners Versus

1. State Of Rajasthan Through Superintendent Of Police, District Pali.

2. Station House Officer, Police Station Rani, District Pali Raj.

3. Preetam Kumar S/o Shri Chhagan Lal, By Caste Mewara Kalal, Resident Of Near Bus Stand, Nadol, Tehsil Desuri, District Pali.

                                      (2 of 6)                    [CRLMP-2288/2018]


                                                                ----Respondents


For Petitioner(s)        :     Mr. JVS Deora
                               Mr. Bharat Shrimali
For Respondent(s)        :     Mr. SK Bhati, PP


                    JUSTICE DINESH MEHTA
                            Order

06/04/2022

1. The petitioners have preferred the present petitions under

Section 482 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as "the Code"), inter alia, challenging the FIR No.114

dated 02.07.2017, that has been registered in Police Station Rani,

District Pali seeking petitioners' prosecution for the offences under

Sections 420, 467 and 468 of the Indian Penal Code.

2. Mr. Deora, learned counsel for the petitioners narrated the

broad facts in relation to disputed plot and construction raised

thereupon and submitted that one Rupa Ram was the owner of the

disputed property, who passed away in 2006 leaving following

legal heirs: (i) Khumi Devi (widow); (ii) Shiv Lal; (iii) Jeevraj (iv)

Dalpat; (v) Fancy and (vi) Jaynti.

3. It is informed by learned counsel that one of the above

referred legal heirs, namely, Shiv Lal transferred the entire

property to the complainant claiming himself to be the sole owner

of the property on the basis of a will purportedly executed by his

father Rupa Ram.

4. In the meantime, the present petitioners being legal heirs of

Rupa Ram executed a power of attorney in favour of Hanwant

Singh, who in turn transferred the property to one Mohan Singh,

who is one of the petitioners herein (S.B. Criminal Misc. Petition

No.91/2018).

(3 of 6) [CRLMP-2288/2018]

4. Learned counsel for the petitioners submitted that Mohan

Singh is bona-fide purchaser of the property as all the legal heirs

of Rupa Ram excluding Shiv Lal sold their 5/6 th share in the

property through Hanwant Singh a power of attorney holder and

therefore, the transfer in question was valid.

5. He pointed out that the petitioners have already challenged

the will purportedly executed in the favour of Shiv Lal by way of

suit, which is pending consideration before the competent Court.

6. Learned counsel read the contents of the FIR and argued

that the complainant- Pritam, having purchased the property from

Shiv Lal has levelled false allegation that the petitioners have

created forged and concocted documents, simply in order to ward

off a decree against him/Shiv Lal in the said suit.

7. Learned counsel argued that allegation of forgery in creation

of the documents in absence of or when it is not alleged that

signatures on the power of attorney, which has been executed by

Khumi Devi; Jeevraj; Dalpat; Fancy and Jaynti are in any manner

forged. It cannot be said that the contentious property has been

irregularly transferred to Mohan Singh by creating forged and

fabricated documents.

8. It was also argued that in any case, since the complainant-

Pritam himself does not claim to have been cheated by the

petitioners, no offence under Sections 420, 467 and 468 of the

Indian Penal Code can be said to have been committed.

9. Learned counsel relied upon the judgment rendered in the

case of Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr. (2009) 8

SCC 751 and argued that at the best, it is a case of civil dispute

but the same has been given colour of crime.

(4 of 6) [CRLMP-2288/2018]

10. Mr. Shrimali, learned counsel appearing on behalf of the

complainant on the other hand argued that the petitioners have

fraudulently transferred a land, may be on the basis of a validly

executed document being power of attorney given to Hanwant

Singh, who in any case was well aware of the fact that the

property did not belong to them in the teeth of the will, which they

knew that their prepositus Rupa Ram had executed in favour of

Shiv Lal.

11. Mr. Shrimali, thus, argued that in spite of the factum of the

property belonging to Shiv Lal, his mother and remaining brothers

and sisters have executed a power of attorney and transferred the

land to Mohan Singh in order to deprive the complainant from the

rightful ownership of the property in question.

12. Learned Public Prosecutor informed the Court that after

thorough investigation, the Investigating Officer has found the

petitioners guilty of offences under Sections 420, 467, 468 and

120-B of the Indian Penal Code and the investigation is over and

charge-sheet is ready to be filed in the competent Court, however,

since, there is an interim protection from arrest granted to the

petitioners, the same has not been done.

13. Having heard learned counsel for the parties and upon

perusal of the material on record, including the factual report

dated 31.03.2022, produced by learned Public Prosecutor, this

Court is of the considered view that a purely civil dispute has been

given colour of a crime and a dispute which should otherwise be

agitated and settled by a competent Civil Court has been brought

within the domain of Criminal Court.

(5 of 6) [CRLMP-2288/2018]

14. Without making any observation on the correctness of the

assertion of any of the parties, this Court is of the view that if the

complainant- Pritam feels that power of attorney in question has

been illegally executed given the fact that Shiv Lal was having

right title in possession of the property pursuant to a will executed

in his favour, then the proper course available to the complainant-

Pritam is to take his remedies in Civil Court by seeking appropriate

declaration.

15. A perusal of the FIR clearly shows that the complainant-

Pritam has not alleged that signatures on the power of attorney

are forged. That apart, it does not and cannot concern the

complainant- Pritam because he has derived the property from

Shiv Lal. In other words, he is an alien to such transaction- he

cannot claim to have been cheated.

16. Since, the complainant- Pritam has not been cheated in any

manner by way of the documents in question, the controversy

involved in the present cases is fully covered by judgment of

Hon'ble the Supreme Court in case of Mohd. Ibrahim & Ors. Vs.

State of Bihar & Anr. (2009) 8 SCC 751. The relevant paras

thereof are reproduced hereunder:

" 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.

(6 of 6) [CRLMP-2288/2018]

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 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."