Pawan Pal v. State of Uttarakhand and Another

2. Brief facts of the case, in a nutshell, are that:- Respondent no. 2, who was the Senior Bank Manager of Syndicate Bank, Branch Civil Lines, Roorkee, lodged a complaint against the applicant that a land was purchased by Rishi Pal Singh, S/o from one Abhinav Kumar by a registered sale deed on 02.07.2008. In the 2 said sale deed, the applicant was one of the witnesses. It has further been alleged in the said complaint that on the basis of the said sale deed, Rishi Pal took a loan from the bank in the year 2008 itself by mortgaging the sale deed, in which applicant is a guarantor. It has been alleged in the complaint that Rishi Pal Singh paid the instalments of the loan till the year 2015, but, when he stopped to pay the instalments, then, bank inquired into the matter and it was revealed that some other person alleged himself to be the actual buyer and in possession of the said land, which was mortgaged and further that the sale deed executed by Sri Rishi Pal Singh did not contain the photograph of Abhinav Kumar, but, some other person. On the complaint, FIR was lodged on 30.04.2015. After investigation, charge-sheet was filed under Sections 420, 467, 468 of IPC, in which only the applicant has been made the accused.

3. Learned counsel for the applicant has submitted that the applicant was only the attesting witness to the sale deed and was neither the beneficiary of any alleged plot, nor he was the person, who has purchased the property. He has further submitted that neither purchaser of the property Rishi Pal Singh has been made an accused nor the Investigating Officer has named the person, who was alleged to be the actual buyer and chargesheet against the applicant has been filed only on 3 the basis of the statement given by Abhinav Kumar; that he has not sold the property to Rishi Pal and he has sold it to some other person, but, neither the person alleged to be vendee of the said sale deed have been identified, nor the date of the alleged sale deed have been mentioned.

4. A perusal of the sale deed would indicate that the applicant is the only attesting witness to the sale deed. Besides this, no other sale deed has been produced, as has been alleged in the inquiry conducted by the Investigating Officer. Abhinav Kumar has not filed any suit for cancellation of the sale deed executed in favour of Rishi Pal and the sale deed is still valid.

5. Learned counsel for the applicant has drawn the attention of this Court to Section 3 of the Transfers of Property, 1882, which defines the word ‘attested’. It states as hereunder:- “16.................................................................................................. "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executants a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executants; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;"

17. A careful reading of the aforesaid definition of the word "attested" would show that the essential conditions of a valid attestation under Section 3 of the Transfer of Property Act are: (i) two or more witnesses have seen the executants sign the 4 instrument of have received from him a personal acknowledgement of his signature; (ii) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executants.”

6. Learned counsel for the applicant has thus submitted that the attesting witness proves no more than that the signature of the executing parties that have been executed in his presence. Learned counsel has further submitted that before sanctioning of loan, the bank follows a procedure to verify the genuineness of the document, which is mortgaged before the bank for securing the loan. It is further submitted that a bare reading of the FIR would reveal that instalments of the said loan were paid by Rishi Pal till the year 2015 and only on default after that just to cover up their own lacunae, the Bank Manager have filed the present FIR.

7. Per contra, learned State Counsel has submitted that applicant has been made accused after the Investigating Officer found that the applicant has impersonated some other person in the alleged sale deed.

8. Heard learned counsel for the parties and perused the record.

9. Hon’ble Supreme Court, in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors., after considering all its earlier judgments, has laid down principles, which are required to be taken into consideration by the High Court 5 while exercising its jurisdiction under Section 482 of the Cr.P.C. for quashing the proceedings. It will be relevant to refer to the following observations of Hon’ble Supreme Court in Bhajan Lal (supra):- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to 1 1992 Supp (1) SCC 335 secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding institution and instituted) continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an 6 ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

10. In light of the observations made by the Hon’ble Apex Court and after going through the record and perusing the FIR, it is revealed that the applicant was only a witness to the sale deed, which was registered in the office of Sub-Registrar. It is also relevant to point out here that the said sale deed executed by Abhinav Kumar in favour of Rishi Pal and which was mortgaged by Rishi Pal by securing loan from the complainant-bank, have not been cancelled till date and is a valid document. Since, the applicant was only an attesting witness of the sale deed, therefore, offences under Sections 420, 467, 468 of IPC, under which he has been chargesheeted, are not made out.

11. Section 420 IPC reads as hereunder:- “420. Cheating and dishonestly property.— inducing delivery of Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

12. In Lalit Chaturvedi v. State of Uttar Pradesh, this Court quoted an earlier decision in Mohammed Ibrahim v. State of Bihar, wherein, referring to Section 420 of the IPC, it was observed that the offence under the said Section requires the following ingredients to be satisfied:- 7 “The essential ingredients of the offence of “cheating” are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).”

13. The main ingredient for substituting an offence under Section 420 is intention, as discussed above. As such, no ingredients of Section 420, 467 and 468 are made out against the applicant, as he being only an attesting witness to the said sale deed. Applicant was neither the beneficiary of any alleged plot, nor he was the person, who has purchased the property.

14. In such view of the matter, this Court of the opinion that even if, any case is made out against the applicant, it is essentially civil in nature. In the case at hand, this Court sees no criminal element and consequently, the case here is nothing, but, an abuse of the process.

15. Accordingly, the present criminal miscellaneous application filed under Section 482 of the Code of Criminal 8 Procedure, 1973 is allowed and the charge-sheet dated

18.07.015, summoning order dated 02.11.2015 and the entire proceedings of Criminal Case No. 2035 of 2015, under Sections 420, 467, 468 of IPC, pending in the court of learned Additional Chief Judicial Magistrate, Roorkee, District Haridwar, is hereby quashed, qua the applicant. Ujjwal (Alok Mahra, J.) 07.08.2025