1. Laxmi Devi 2. Suraj Devi v. 1. The State of Jharkhand. 2. Angni Khariain
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2549 of 2015 1. Laxmi Devi 2. Suraj Devi Versus 1. The State of Jharkhand. 2. Angni Khariain -------- ..... … Petitioners ..... … Opposite Parties
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ------ : : : ------ 07/ 27.06.2023 Mr. Sidhartha Roy, learned counsel appearing for the O.P. No. Mr. Mohit Prakash, Advocate. Mr. Saket Kumar, A.P.P. Mr. Sidhartha Roy, Advocate. For the Petitioners For the State For the O.P. No. 2 2 took time on 16.05.2023 for filing counter affidavit in the matter. He submits that in spite of his best efforts, O.P. No. 2 has not turned up and he has no instruction in the matter. 2. In view of such submission of Mr. Roy, the case is being heard in absence of O.P. No. 2. 3. Heard Mr. Mohit Prakash, learned counsel appearing for the petitioners and Mr. Saket Kumar, learned A.P.P. for the State. 4. This petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 13.08.2015, by which, cognizance for the offence under Sections 420, 467, 468 and 120-B of Indian Penal Code has been taken against the petitioners, in connection with Complaint Case No. 179 of 2014, pending in the court of learned Chief Judicial Magistrate, Gumla. 5. The complaint case was filed alleging therein that the petitioner Laxmi Devi has executed deed of sale dated 28.12.2011 in the name of Suraj Devi without right, title, interest arising out of Khata No. 44, measuring 8 decimals and khata No. 33 measuring 2 decimals. It is also alleged that the petitioner, showing herself as wife of Nirmal Baiga has obtained permission where as in fact she is not the wife of Nirmal Baiga and moreover, Nirmal Baiga is not the Member of complainant’s khandan. It is further alleged that wrong Jamabandi has been done in the name of Rajwa Baiga, whereas Rajwa Baiga is Jamabandikar of Khata No. 33 only. It is further alleged that Circle officer, Smt. Alka Kumari, Karamchari Sitaram Sao, C.I. Sohra Baraik conniving with Laxmi Devi in order to grab the land of Khata No. 44 has committed forgery with the documents. It is further alleged that information sought for through Right to Information has not been given to the complainant. It is also alleged -2- that in 2013, a case was lodged against the petitioners and other relative to land of khata No. 44 and several discrepancies has been mentioned in the complaint-petition. 6. Learned counsel appearing for the petitioners submits that the petitioner No. 1 is the seller of the land in question and petitioner No. 2 is the purchaser of the said land. He submits that the matter relates to Khata Nos. 33 and 44. He further submits that before selling the land, permission under Section 46 of the CNT Act has duly been granted by the LRDC, Gumla, vide order dated 10.09.2012, in Permission Case No. 311/2012-13. He further submits that the present case has been lodged at the instance of one Avnikant Ohdar and Dev Sahu, who are land mafias and want to grab the land of the petitioners, for that Gumla SC/ST P.S. Case No. 02 of 2014 was instituted against both of them and thereafter the present case has been filed. He also submits that in the said case, cognizance has been taken under the Penal Sections of IPC, however, cognizance under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act has not been taken against them. He further submits that the petitioners are the seller and purchaser respectively and the case of the petitioners is fully covered in the light of the judgment of Hon’ble Supreme Court in the case of Md. Ibrahim & Ors. Versus State of Bihar & Anr., reported in (2009) 8 SCC 751. In view of the above, learned counsel appearing for the petitioners submits that entire criminal proceedings may kindly be quashed. 7. Learned A.P.P. appearing for the State submits that on the basis of the complaint as well as SA and the enquiry witness, the learned court has taken the cognizance. 8. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the materials available on record and finds that Annexure-3 is the certified copy of the order, by which, the petitioner has obtained the permission under Section 46 of the CNT Act and the petitioner has also filed a complaint against Avnikant Ohdar and Dev Sahu, who are land mafias and want to grab the land of the petitioner and thereafter the present case has been filed. It further transpires that the petitioner No. 1 is the seller and petitioner No. 2 is purchaser of the lands in question. In that view of the matter, the case of the petitioner is fully covered in the light of the judgment of Hon’ble Supreme Court in the case of Md. Ibrahim & Ors. Versus State of Bihar -3- & Anr., reported in (2009) 8 SCC 751, wherein the Hon’ble Supreme Court in paras-14 to 17 and 20 to 23 held as follows: “14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories: 1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, 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 practising deception, or from a person not in control of his senses. 15. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of “false documents”. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention the complainant's land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category. possession taking of of 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 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 falsely claiming -4- to fall under 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 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. execution 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, 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. such of 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 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. false 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 -5- 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.
Decision
23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to the person who him, and purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under to make such the deed may not be able complaint.” In view of the above judgment of Hon’ble Supreme Court, the thereby defrauds 9. case of the petitioners is fully covered and the case of the petitioners is further fortified in view of the fact the O.P. No. 2 has not come forward to contest the matter. Accordingly, the entire criminal proceedings including the order taking cognizance dated 13.08.2015, by which, cognizance for the offence under Sections 420, 467, 468 and 120-B of Indian Penal Code has been taken against the petitioners, in connection with Complaint Case No. 179 of 2014, pending in the court of learned Chief Judicial Magistrate, Gumla, are hereby, quashed. 10. This petition is allowed and disposed of. Pending I.A., if any, stands disposed of. Amitesh/- (Sanjay Kumar Dwivedi, J.)