Khaderunnisa vs The State Of Telangana
2022 Latest Caselaw 5697 Tel

            HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos.3078, 6467, 6513 and 8059 OF 2019
COMMON ORDER:
1.   Criminal   Petition   No.3078   of   2019   is   preferred   by

petitioner/A1, Criminal Petition No.6513 of 2019 is preferred by

petitioner/A2 and Criminal Petition No.6467 of 2019 is preferred by

petitioners/A4 and A5 seeking quashing of the proceedings in CC

No.250 of 2017 on the file of XXVI Metropolitan Magistrate,

Maheshwaram, Cyberabad,


2.   Criminal Petition No. 8059 of 2019 is preferred by A1 and A2

for quashing of proceedings in CC No.230 of 2017 on the file of

XXVI Metropolitan Magistrate, Maheshwaram, Cyberabad. Initially

a private complaint was filed in September 2016, which was sent to

the police station for the purpose of investigation. The said

complaint was received by the police on 06.10.2016, which was

registered on the same day by Maheshwaram Police and filed final

report on 06.01.2017 stating that complaint filed by the defacto

complainant was closed for lack of evidence. On the same day i.e.,

06.01.2017, protest petition was filed by the defacto complainant

questioning the correctness of the final report filed in the said
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Crime No.240 of 2016 referring the case as 'lack of evidence'. The

cognizance taken in CC230/2017 is on the basis of protest petition

and cognizance taken in CC 250/2017 is on the basis of a private

complaint on the very same facts.


3.   Since the subject matter in both the complaints/CC's, accused

and complainant is one and the same and similar grounds are

raised in all the Criminal Petitions, they are being heard together

and disposed off by this Common Order.


4.   Briefly, in both cases, the case of the 2nd respondent/defacto

complainant is that he purchased the property to an extent of

Acs.103.35 guntas situated at Nagaram village from A1 and another

i.e., an extent of Acs.57.00 guntas through registered document

No.6345 of 2005 and an extent of Acs.46.35 guntas through an

agreement of sale-cum-irrevocable General Power of Attorney on

07.11.2005. The said document dated 07.11.2005 was validated

before the District Registrar, Ranga Reddy District. The

petitioner/A1 was living in UK at the relevant time and A2 is the

sister of A1(in both cases). A3 is the son of A.2 and A4 and A5 are

family friends (in CC 250/2017). The main grievance of the 2nd

respondent/defacto complainant is that the ratification deed dated

27.01.2017 was executed by A.1 in favour of A.2 and A.3. The said

ratification was of the partition deed in favour of A.2 and A.3. The

said ratification deed which was ratified by A.1 in favour of A2 and

A3 pertain to the very same land, which was part of land sold i.e.,

Acs.54.00 and also an agreement of sale-cum-irrevocable general

power of attorney in respect of Acs.46.35 guntas.

5. Aggrieved by the said ratification deed dated 27.01.2017,

criminal complaint was filed, which was taken on file by the learned

XXVI Metropolitan Magistrate at Maheshwaram on 25.09.2017.

Thereafter, A1 executed cancellation of ratification deed dated

27.01.2017 on 15.12.2017. In the said cancellation of ratification

deed, it was stated that the properties were sold to the defacto

complainant and also others, as such, ratification was cancelled.

6. Learned counsel for the petitioners submits as follows: i) There

is violation of the directions of the Hon'ble Supreme Court in the

case of Priyanka Srivastava and another v. State of Uttar

Pradesh [(2015) 6 Supreme Court Cases 287]. There is no mention

of any complaint being made by the police in the private complaint

by the 2nd respondent/defacto complainant. Further, no affidavit

was filed to the effect as directed by the Hon'ble Supreme Court in

the aforesaid decision, for which reason, the complaint has to be

quashed; ii) learned Magistrate has not given cogent reasons for

taking cognizance against the petitioners for the offence under

Section 420 r/w 34 of IPC against A1 to A3 and Section 447 r/w 34

of IPC and Section 506 r/w 34 of IPC against A2 to A5; iii) Even

admitting the factum of execution of ratification deed, it does not

amount to any of the offences alleged. The Hon'ble Supreme Court

in the judgment reported in Mohammed Ibrahim and others v.

State of Bihar and another [(2009) 8 Supreme Court Cases 751],

wherein it is held 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 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."

7. Placing reliance on the aforesaid judgment, learned counsel

submits that in fact, there is no wrongful loss that has occasioned

by the registration of the ratification deed dated 27.01.2017.

Further, A1, who is aged more than 75 years has subsequently

cancelled the said ratification of the partition deed on 15.12.2017.

Since there are no ingredients to attract any of the offences of

cheating or fabrication of documents, the proceedings have to be

quashed against the petitioners.

8. On the other hand, learned counsel appearing for the 2nd

respondent/defacto complainant submits that the accused have

entered into criminal conspiracy to defraud the defacto

complainant. Apparently, cancellation of the ratification deed

would reflect that initial ratification deed dated 27.01.2017 ratifying

the partition deed dated 04.12.2014 amounts to accepting the fraud

committed by A1 and others. Once a fraudulent act is accepted

even assuming that there was cancellation of the false document, it

will not efface the crime committed for which reason, petitions have

to be dismissed.

9. Having heard the Counsel appearing for the parties and

perusing the record, the grievance is that the registered partition

deed bearing No.3635 of 2014 dated 04.02.2014 which was

registered at Sub-Registrar of L.B.Nagar was ratified by A.1. The

said partition deed pertains to the very same land, which was sold

to the defacto complainant.

10. The said ratification is the basis for filing the present

complaint. The grievance of the defacto complainant is that A1 and

others have entered into a criminal conspiracy to defraud the

defacto complainant. The reason for executing the ratification deed

dated 27.01.2017 is to avoid any complications in respect of the

partition deed dated 04.02.2014. The said ratification of the

partition deed will not amount to an offence of cheating the defacto

complainant. Admittedly, the document which was executed does

not confirm to the definition of false document to attract an offence

of forgery punishable under Section 468 of IPC. To attract an

offence of committing forgery, a document has to be executed

dishonestly or fraudulently thereby falling within the definition of

false document under section 464 IPC. Such document should have

been made by the person causing belief that such document was

made or executed by him or by the authority of person, by whom or

by whose authority he knows that it was made or executed.

11. Since A1 has not dealt with in any manner with the

documents executed in favour of the defacto complainant, it cannot

be said that ratification deed dated 27.01.2017 ratifying the

registered partition document dated 03.06.2014 and dated

04.2.2014 is an act of forgery. The said ratification deed was not

used in any manner to cheat. Primarily, when it is found that the

ratification deed is not a false document, the question of attracting

the offence under Section 420 or 471 of IPC does not arise.

12. Having come to the conclusion that there is no forgery

regarding the ratification deed dated 27.012017, there is no

necessity to delve into the fact whether the cognizance order of the

Magistrate is correct or not or whether the learned Magistrate has

erred in taking the cognizance of the offence, violating the

directions of the Hon'ble Supreme Court in Priyanka Srivastava

and another v. State of Uttar Pradesh's case (supra).

13. For the foregoing reasons, petitioners succeed and

accordingly, the proceedings against petitioners/A1, A2, A4 and A5

in CC No.250 of 2017 on the file of XXVI Metropolitan Magistrate at

Maheshwaram, Cyberabad are hereby quashed.

Miscellaneous applications, if any pending, shall stand closed.

__________________ K.SURENDER, J Date: 08.11.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL PETITION Nos.3078, 6467, 6513 and 8059 OF 2019 Dt.08.11.2022

kvs