13.12.20017. These proceedings relates to FIR No. 129 of
120B IPC, Police Station Prem Nagar, District Dehradun.
2. Facts necessary to appreciate the controversy
FIR on 11.08.2018 against Kundan Singh and Balbir Singh.
Kumar Agarwal and Smt. Vineeta Agarwal to some other
person on 28.01.2002. It is this FIR, in which, after
accused Kundan Singh and Bilas Dev. The named accused
Balbir Singh had died. The matter was further investigated
taken. It is impugned herein.
3. Heard learned counsel for the parties and perused
4. Learned counsel for the petitioner would submit
that no offences are made out against the petitioner. It is
forgery was committed in the matter. Therefore, offences
made out and the petition deserves to be allowed.
5. On behalf of the informant, it is argued that the
Singh. But, the same property was subsequently sold by
nominee) to a Jitendra Mathur on 10.01.2002. It is argued
informant. Learned counsel would submit that the word
Property Act, 1882 (for short, "the T.P. Act"). The sale deed
notice of the sale transaction. Notice as defined under
Section 3 of the T.P. Act is as hereunder:-
Explanation I.--Where any transaction relating to
immovable property is required by law to be and has been
effected by a registered instrument, any person acquiring
such property or any part of, or share or interest in, such
property shall be deemed to have notice of such
instrument as from the date of registration or, where the
property is not all situated in one sub-district, or where
the registered instrument has been registered under sub-
section (2) of section 30 of the Indian Registration Act,
1908 (16 of 1908), from the earliest date on which any
memorandum of such registered instrument has been filed
by any Sub-Registrar within whose sub-district any part of
the property which is being acquired, or of the property
wherein a share or interest is being acquired, is situated:
(1) the instrument has been registered and its
registration completed in the manner
prescribed by the Indian. Registration Act,
1908 (16 of 1908), and the rules made
thereunder,
(2) the instrument or memorandum has been
duly entered or filed, as the case may be, in
books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to
which the instrument relates have been
correctly entered in the indexes kept under
section 55 of that Act.
Explanation II.--Any person acquiring any
immovable property or any share or interest in any such
property shall be deemed to have notice of the title, if any,
of any person who is for the time being in actual
possession thereof.
Explanation III.--A person shall be deemed to have
had notice of any fact if his agent acquires notice thereof
whilst acting on his behalf in the course of business to
which that fact is material:
Provided that, if the agent fraudulently conceals the
fact, the principal shall not be charged with notice thereof
as against any person who was a party to or otherwise
cognizant of the fraud."
6. Learned counsel for the informant also has raised
the following point:-
(i) Bilas Dev had executed a sale deed on
28.01.2002 on the basis of a power of
attorney dated 06.09.1996. It is argued that
there was no power of attorney dated
06.09.1996 instead there was a power of
attorney dated 30.08.1997, in which the
petitioner was a witness.
7. How the petitioner is concerned with the power of
attorney executed in favour of Bilas Dev by virtue of which
Bilas Dev, according to the learned counsel for the informant
had sold some property? It is not even shown to this Court.
The sale deed dated 28.01.2002 has been filed as Annexure
4 by the informant himself. It makes reference to the power
of attorney dated 09.10.1996 in favour of Bilas Dev. But this
power of attorney is not on record. Even, it is argued that it
was never executed. If it is so, where is the question of
complicity of the petitioner. Even for the sake of argument, it
is accepted that in any power of attorney executed on
30.08.1997, the petitioner was a witness, how is the offence
made out, merely on that basis? Therefore, argument on
that aspect has not force.
8. On behalf of the State it is argued that a property
already sold to the petitioner was subsequently sold to some
other person by the petitioner and Kundan Singh.
9. Essentially, it is the case against the petitioner
that the property-in-question was sold to the informant by
Kundan Singh and Balbir Singh on 29.08.2001, but
thereafter, the same property was sold by the petitioner, as a
nominee, and Kundan Singh to Jitendra Mathur on
10.01.2002.
10. The sale deed dated 29.08.2001 is Annexure2 to
the counter affidavit filed by the informant. According to it,
Balbir Singh and Kundan Singh had sold certain property to
the informant on that date. The sale deed dated 10.01.2002
is Annexure 3 to the writ petition. According to it, the
property-in-question was purchased by the petitioner and
the petitioner was given possession of it. Based on it, the
petitioner and Kundan Singh sold the property to Jitendra
Mathur.
11. Learned counsel for the petitioner would submit
that the word "notice" as defined under the T.P. Act cannot
be taken for assistance, in the offences under IPC, because it
is argued that it is in the interpretation clause of the T.P. Act
and it may help to interpret different provisions of the T.P.
Act wherein the word "notice" occurs.
12. It is true that interpretation clause in any statute
defines the word as used in the particular enactment. But,
under Section 3 of the T.P. Act, the explanation to the
definition of notice makes it abundantly clear that it is with
regard to notice of registration of the sale deed to the person
acquiring such property. Therefore, it is not the question of
using the interpretation clause of T.P. Act in the IPC, instead
reading the definition of notice in the context of sale
transactions, which are in question in the instant case. In
view of this definition of "notice" and its explanation as given
under Section 3 of the T.P. Act, any person acquiring the
property in dispute post 29.08.2001, when the property was
transferred and registered in the name of informant shall be
deemed to have notice of such transaction from the date of
registration of sale deed i.e.29.08.2001.
13. The sale deed dated 10.01.2002 records that the
petitioner had already paid money for the property in
dispute and he had obtained possession of it. According to
it, the sale deed was executed in the name of the person, as
nominated by the petitioner. There may be various reasons
to do such kind of transactions. This Court avoids to go into
that aspect of the matter.
14. The petitioner shall be deemed to have notice of
the sale deed registered on 29.08.2001 in favour of the
informant by Kundan Singh and Balbir Singh.
15. Now, a short question that requires deliberation is
that if Kundan Singh and Balbir Singh had already sold the
property in question to the informant and the same property
was subsequently sold by the petitioner and Kundan Singh
to Jitendra Mathur on 10.01.2002, what offences are made
out?
16. It is also an admitted case that the informant did
not file any suit for cancellation of sale deed dated
10.01.2002. In fact, it is admitted position that the
informant had filed OS No. 45 of 2014 for cancellation of
sale deed dated 28.01.2002, which was executed through a
power of attorney holder Bilas Dev in favour of Kishore
Kumar and Rajeev Sharma.
17. It is not the case that any false document was
prepared by the petitioner. What is the case is that without
having any title, the property was sold to Jitendra Kumar
Mathur. It is not forgery. It is also not the case that the
informant was cheated. The informant was not deceived. The
informant was not induced to deliver any property.
18. In the case of Mohammed Ibrahim and others Vs.
State of Bihar and another, (2009) 8 SCC 751, under the
similar circumstances, the Hon'ble Court observed as
hereunder:-
"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.
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
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.
22. As the ingredients of cheating as stated in Section 415
are not found, it cannot be said that there was an offence
punishable under Sections 417, 418, 419 or 420 of the Code."
19. In the instant case, it is not the case of the
prosecution that the petitioner sold any property by
impersonation; it is not the case against the petitioner that
he prepared any false document as defined under Section
464 IPC; it is not the case against the petitioner that he tried
to deceive the informant or he cheated him in any manner.
therefore, this Court is of the view that, in fact, no prima
facie offence under Sections 420, 467, 468, 471 and 120B
IPC is made out against the petitioner. Accordingly, the
petition deserves to be allowed.
20. The petition is allowed.
21. The impugned cognizance order and charge sheet
in FIR No. 129 of 2016, dated 11.08.2016, under Section
420, 467, 468, 471, 120B IPC, Police Station Prem Nagar,
District Dehradun are quashed.
(Ravindra Maithani, J.)
10.03.2022
Jitendra
