V.Dharmaraj v. The Inspector of Police District Crime Branch Villupuram District, Villupuram & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 09.08.2010CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMCrl.O.P.No.15540 of 20101.V.Dharmaraj2.V.Rajamani3.Chinnamurthy Ammal..Petitioners/Accused 1 to 3Vs1.The Inspector of Police District Crime Branch Villupuram District, Villupuram.2.Janakiraman..Respondents/State/Defacto Complainant Criminal Original Petition filed under section 482 of CriminalProcedure Code to call for the records in C.C.No.328 of 2009 on thefile of the learned District Munsif cum Judicial Magistrate, Vanurand thereby quash the charge sheet filed against the accused 1 to 3.For Petitioners:Mr.N.SureshFor Respondent 1:Mr.I.Paul Nobel DevakumarGovernment Advocate (Crl.Side)For Respondent 2:Mr.A.N.Rajan*****O R D E RThe petitioners seek quash of proceedings in C.C.No.328 of 2009pending on the file of the learned District Munsif cum JudicialMagistrate, Vanur, wherein they stand accused of offences underSections 420, 467, 474 r/w. 120(b) IPC.2.The charge sheet in the case informs that property of anextent of 8 acres in survey Nos.108.6, 109.1, 68.13 belonged to oneKalivarathaperumal son of Kothandarama Gounder and the same waspurchased by Kanniya Gounder under sale deed registered as documentNo.1236/1981. The purchaser had bequeathed the same under a Will tohis son Sundaramurthy. The complainant had obtained a general powerfrom the said Sundaramurthy and was in enjoyment thereof. The 1stpetitioner/accused claiming himself to be the guardian of one Fleix https://hcservices.ecourts.gov.in/hcservices/ Gabriel, the minor son of Kalivarathaperumal and on the strength ofrelease deed registered as document No.505 of 1998, (which accordingto the prosecution relates to a different property) and with theconnivance of the accused 2 and 3, with intent of usurping theproperty held by the complainant, prepared a false document viz., thesale deed registered as document No.402 of 2007 dated 25.01.2007 tothe effect that A2 and A3 had purchased property from A1. Theaccused 2 and 3 suppressing such fact had in turn sold property insurvey No.108/6.09 and in an extent of 1 acre 93 cents to a thirdparty. 3.The learned counsel for the petitioners would inform that thecharge sheet proceeds on the basis that the accused had preparedfalse documents. The original owner of the property viz.,Kalivarathaperumal and his wife had died in a fire accident leavingbehind a minor son. The 1st petitioner duly had been appointed asguardian of the minor son. The entire extent of 8 acres originallybelonged to one Kothandaraman and after his demise, the wife, fivesisters and only son Kalivarathaperumal became entitled thereto. Themother and sisters executed a release deed in favour ofKalivarathaperumal in respect of entire property of 8 acres. Themain contention raised by the learned counsel is that the 1st accusedhad not represented himself to be anybody else. The 1st accusedhaving been appointed as a guardian by Court and having obtained thepermission of Court as per orders in G.O.P.No.50 of 2005 dated26.10.2006 from the learned Principal District Judge, Villupuram hadeffected sale of the property under sale deed dated 25.01.2007registered as document No.402 of 2007. The 1st petitioner had notrepresented himself to be anybody else nor to be acting under theauthority of anybody else. As such, he could not be said to havecreated a false document. If he has not created a false document,then there was no question of him, having committed forgery andconsequentially, he could not have committed offences under Sections467 and 474 IPC. In this regard, the decision of the Honourable ApexCourt in Mohammed Ibrahim and others v. State of Bihar and another(2009) 8 Supreme Court Cases 751 has been relied upon.4.On the other hand, the learned counsel for the respondentwould impress upon this Court that the accused 1 to 3 had enteredinto a sale deed in the year 2007 knowing fully well that the 1staccused had no right to the property intended to be sold thereunder,since the same already had been disposed of by Kalivaratha Perumaleven in the year 1981. Learned counsel would rely upon judgment ofthe Honourable Apex Court in K.Neelaveni v. State represented byInspector of Police and others 2010 (2) Crimes 90 (SC) to inform thatthis Court could not now interfere and would leave it to the trialCourt to appreciate the merits of the case. Learned counsel wouldalso refer this Court to some interim orders of Civil Court wherein https://hcservices.ecourts.gov.in/hcservices/ the likelihood of the documents of the year 2007 being unjustified,is pointed out. In response, the learned counsel for the petitionersinforms that the very suit wherein such observations came about,stands dismissed. 5.This Court may look into the documents put up by the accusedin an appropriate case. Given the clear and unambiguous ruling ofthe Honourable Apex Court in Mohammed Ibrahim's case that 'when adocument is executed by a person claiming a property which is nothis, he is not claiming that he is someone else nor is he claimingthat he is authorised by someone else. Therefore, execution of suchdocuments (purporting to convey some property of which he is not theowner) is not execution of a false document as defined under Section464 of the Code. If what is executed is not a false document, thereis no forgery. If there is no forgery, then neither Section 467 norSection 471 of the Code are attracted', this Court towards satisfyingitself that when the 1st petitioner represented himself to be theguardian of a minor and to be duly permitted under orders of Court toeffect sale of the property, he indeed held such capacity, would lookinto the documents put up by the petitioners. On perusal of thedocuments, this Court finds that the contentions of the petitionersare factually correct. Again, this Court finds that the 1stpetitioner has not represented himself to be any person other thanhimself. He has executed the sale deed in favour of the petitioners2 and 3 claiming to be the guardian of minor and empowered to effectsale, which position stands substantiated. 7.In these circumstances, it cannot be said that the 1stpetitioner has executed a false document. Once that is so, given therationale of the judgment of the Honourable Apex Court in MohammedIbrahim's case, it follows that the other offences of which thepetitioners stand charged, would not stand attracted. Accordingly,the Criminal Original Petition shall stand allowed. The proceedingsin C.C.No.328 of 2009 on the file of the learned District Munsif cumJudicial Magistrate, Vanur shall stand quashed. 8.This order only makes clear that in circumstances of the casethe accused could not be said to be guilty of any offence. The sameshall have no bearing on the rights of different parties to theproperty and the civil litigation in respect thereof. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gmTo1.The District Munsif cum Judicial Magistrate, Vanur .2.The Inspector of Police, District Crime Branch, Villupuram. 3.The Public Prosecutor, High Court, Madras.+1cc to Mr.N.Suresh, Advocate Sr 58130+1cc to Mr.A.N.Rajan,Advocate Sr 57974SJ(CO)km/17.9.Crl.O.P.No.15540 of 2010