In the High Court of Jharkhand at Ranchi
W.P (Cr.) No.336 of 2009
Avijit Ghosh and another.............Petitioners
VERSUS
State of Jharkhand and another...Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioners: Mr. Indrajit Sinha
For the State : Mr.R.N.Roy, G.P.III
For the Respondent no.2: Mr.Mahavir Praad Sinha
8. 30.1.10
. This writ application is directed against the order dated
1.8.2009 passed by 1st Additional Sessions Judge, Bokaro in
Cr. Rev. No.60 of 2008 whereby learned Additional Sessions Judge
1st Bokaro after holding that sufficient material is there to
constitute offences under Sections 419, 467, 468, 471, 472, 420,
504 read with Section 120B of the Indian Penal Code against the
accused persons set aside the order dated 16.6.2008 whereunder
complaint case no.291 of 2008 had been dismissed by the Chief
Judicial Magistrate, Bokaro. Consequently the Additional Sessions
Judge remanded the matter for further enquiry.
Before adverting to the submissions advanced on behalf of
the parties, the case as has been made out in the complaint
petition needs to be recorded which are as follows:
A Plot No.371, measuring an area of 89 acres 40 decimals,
appertaining to Khata no.22 situated at village- Giridhartand, P.S.
Pindrajora, District-Bokaro was subjected to partition among the
five co-sharers by virtue of a decree of the court under which one
of the co-sharers Rameshwar Ojha came in possession of the land
measuring 10 acres 32 decimals.
In course of time, Rameshwar Ojha sold the said land to one
Dhiru Koda grand-father of the complainant Shankar Modi @
Shankar Koda whose name was recorded in the revenue records
2
and the rent was being paid to the State. After the death of Dhiru
Koda, his descendants came in possession over the land, bearing
plot no.371, measuring 10 acre 32 decimal.
Further case is that on 11.5.2008 the accused Amit Kumar
came along with accused Avijit Ghose (petitioner), who happens to
be a General Manager, M/s. Jindal Steel & Power Limited and told
to the complainant that entire land measuring 89 acre 40 decimal
has been sold to M/s. Jindal Steel & Power Limited by the accused
no.2 Amar Nath Jha through the holder of his power of Attorney
Amit Kumar, accused no.3 and as such accused no.3 Amit Kumar
and this petitioner (accused no.4) directed the complainant to
vacate the land and held out a threat of dire consequence if he
does not vacate the land.
Thereupon the complainant obtained certified copy of the
sale deed under which 89 acre 40 decimal of land had been
transferred by Amar Nath Jha by impersonating himself as Manoj
Jha through the holder of the power of Attorney Amit Kumar for a
consideration of Rs.1,22,36,400/- on the basis of the rent receipts
and land possession certificate, though neither the land possession
certificate nor the rent receipts had been issued in favour of Manoj
Jha. It has been alleged that accused no.2 Amar Nath Jha by
impersonating himself as Manoj Jha by forging documents in
connivance with other accused including the petitioner sold the
property, though he had no title over the property and as such,
committed offence under Sections 419, 467, 468, 471, 472, 420,
504 and 120B of the Indian Penal Code.
On filing the said complaint, it was registered as C.P. case
no.291 of 2008 which was dismissed by the Chief Judicial
Magistrate, Bokaro on 16.6.2008 holding therein that none of the
offence as alleged in the complaint is made out. However, that
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order was challenged by the complainant before the revisional
court which was registered as Cr. Rev.No.60 of 2008. The said case
was allowed by 1st Additional Sessions Judge, Bokaro after holding
that sufficient material is there to constitute offence under Sections
419, 420, 467, 468, 471, 472, 504 and 120B of the Indian Penal
Code and the matter was remanded back to the court of Chief
Judicial Magistrate, Bokaro for further enquiry.
Being aggrieved with that order, this application has been
filed.
Mr. Indrajit Sinha, learned counsel appearing for the
petitioners submits that M/s. Jindal Steel Power Limited a leading
company of the country in the steel and power sector has been
allowed to set up a power plant and also a steel plant by the State
Government, for which it has been granted a lease deed in respect
of coal mines and also iron ore mines but before its operation the
Company was required under a statute to acquire land for the
purpose of Afforstation. In that pursuit, the petitioner no.1 came
across with one Amit Kumar, accused no.3 who informed that he is
holding power of attorney on behalf of one Manoj Jha @ Amar
Nath Jha who owns 89.40 acres of land situated at village-
Giridhartand and is interested in selling the land. During negotiation
both of them produced rent receipts and also a land certificate
relating to possession of the land issued by the revenue authority
in favour of Manoj Jha @ Amar Nath Jha and asserted that there
has been no defect in the title of the land and thereupon the said
Manoj Jha through its constituted attorney Amit Kumar executed a
deed of sale on 11.4.2008 for a consideration of Rs.1,22,36,400/.
Learned counsel submits that under this situation, the
petitioner cannot be said to have committed any offence
whatsoever as neither the petitioners can be said to have
4
committed offence relating to forgery nor can be said to have
cheated the complainant or committed offence under section 504
of the Indian Penal Code, rather it is out and out a case of civil
dispute and under this situation, the revisional court committed
grave illegality by holding that there has been sufficient material to
constitute offence alleged in the complaint petition.
Learned counsel by referring to a decision rendered in a
case of Md.Ibrahim vs. State of Bihar and others [(2009) 8
SCC 751] submits that almost in a similar fact, the Hon’ble
Supreme Court has held that mere execution of a sale deed by a
person claiming the property as his own did not amount to
commission of an offence under Sections 467 and 471 even if title
to property did not vest in the executants and thereby purchaser
cannot be said to have committed offence either of cheating or
forgery. Thus, it was submitted that the impugned order is fit to be
set aside.
Learned counsel further submits that though the revisional
court has remanded the matter before the Chief Judicial Magistrate,
Bokaro for further enquiry but the matter has been remanded after
recording the finding that there has been sufficient material
constituting offence alleged in the complaint and as such, it would
be a mere formality on the part of the court below to take
cognizance of the offence and as such, the petitioners have moved
to this Court to challenge the order of the revisional court before
cognizance of the offence could have been taken by the court
below on holding further enquiry and that the said order has also
been challenged to be bad on account of the fact that revisional
court allowed the revision application without hearing the
petitioners though revisional court before passing the order should
have given opportunity to the petitioners of its hearing but the
5
revisional court by violating the principle of natural justice allowed
the revision application which is quite illegal and as such on this
ground also, the impugned order is unsustainable in law.
Learned counsel in support of his contention has referred to
a decision rendered in a case of P. Sundarrajan and others vs.
R. Vidhya Sekar [(2004) 13 SCC 472] .
As against this, learned counsel appearing for the
respondent no.2 submits that the revisional court did not commit
any illegality in disposing of the revision application without hearing
the petitioner as no right had accrued upon the petitioner of being
heard because of the reason that the petitioner at this stage was
never the accused in the case and that, as per the case of the
complainant, the accused no.2 Amar Nath Jha sold the land
through accused no.3 Amit Kumar holder of power of Attorney,
though accused no.2 Amar Nath Jha had had absolutely no right,
title or interest over the land in question and as such, revisional
court has rightly set aside the order of the learned Chief Judicial
Magistrate, Bokaro who has dismissed the compaint holding therein
that no offence of cheating or forgery is made out.
Learned counsel further submits that in spite of the fact that
the petitioner being intimated through legal notice that the accused
no.2 Amar Nath Jha had not right to transfer the land, the
petitioner through his reply to the notice justifies the action of the
accused persons and this clearly indicates that all the accused
persons in connivance with each other got the sale deed executed
in favour of the Company, though the vendor had no right to
transfer the land and under this situation, the impugned order
never warrants to be interfered with.
Having heard learned counsel appearing for the parties, the
case of the complainant in nut shell appears to be that the accused
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no.2 Amar Nath Jha sold the land in question through Amit Kumar
holder of power of Attorney to the petitioner, though the accused
no.2 Amar Nath Jha had had no right title or interest over the suit
land. Some statements have been made on behalf of the petitioner
to establish that the vendor had every right to sell the land but it is
not the stage to consider this aspect of the matter, rather at this
stage, the only consideration would be as to whether any offence is
made out by taking all the allegations made in the complaint petition
to be true. At the first instance, I did not find it proper to interfere
with the revisional order as by the impugned order, the matter had
only been remanded for further enquiry but while remanding the
matter, the revisional court had made specific finding that the
allegation does constitute offences which have been alleged in the
complaint petition to have been committed by the petitioner and in
that event, no discretion would have been left for the court below
but to pass order of taking cognizance after holding further enquiry
and as such, I deem it fit and proper to go into the merit of the case.
The question which falls for consideration is as to whether
any offence of cheating or forgery is made out by assuming case of
the complainant to be true that the accused no.2 Amar Nath Jha
having no right, title or interest over the land sold it to the petitioner
through holder of the power of Attorney accused no.3 Amit Kumar.
In order to have its answer I need not to go far either on the
point of law or facts as the similar issue fell for consideration before
the Hon’ble Supreme Court in a case of Md.Ibrahim vs. State of
Bihar and others (supra) where the accused persons, as per the
case of the complainant, had transferred some pieces of the land
without there being any right and title. The question arose before
the Hon’ble Supreme Court as to whether the first accused
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in executing and registering the two sale deeds purporting to sell a
property ( even if it is assumed that it did not belong to him) can be
said to have made and executed false documents, in collusion with
the other accused (purchasers)? Their Lordships after having regard
to the provision as contained in Sections 470 and 463 of the Indian
Penal Code defining forged document and the false document and
also the provision of Section 464 have observed as follows:
13″ The condition precedent for an offence under
Sections 467 and 471 is forgery. The condition
precedent for forgery is making a false document (or
false electronic record or part thereof). This case does
not relate to any false electronic record. Therefore,
the question is whether the first accused, in executing
and registering the two sale deeds purporting to sell a
property (even if it is assumed that it did not belong
to him), can be said to have made and executed false
documents, in collusion with the other accused.
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; (b) intoxication; or (c) deception
practiced 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 authorized by
someone else; or (ii) he altered or tampered a
document; or (iii) he obtained a document by
practicing 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
8complainant 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 of taking possession of
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.
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 authorized 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 the 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
document “, 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 authorized 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.”
Thus, it has been categorically held that when a document is
executed by a person claiming a property though it is not his
property but when he is not claiming that he is authorized by
someone else or he is someone else, execution of such document
cannot be said to be a false document in terms of Section 464 of
the Indian Penal Code and if it is not a false document, then the
question of committing an offence of forgery under Sections 467,
468, 471 and 472 does not arise.
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Almost similar is the case here. The petitioner is the
purchaser from Amar Nath Jha, accused no.2 through power of
Attorney holder Amit Kumar. But Amar Nath Jha has never been
alleged to have sold the land claiming that he has been authorized
by someone else nor he has claimed himself to be someone else,
the petitioner by purchasing the land cannot be said to have
committed offence of forgery in connivance with other accused
and, as such, the revisional court wrongly held that offences are
made out under Sections 468, 469, 471 an 472 of the Indian Penal
Code.
So far the offence of cheating is concerned, it is not the case
of the complainant that any of the accused person including the
petitioner tried to deceive him either by making a false or
misleading representation or by any other action or omission, nor it
is 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 accused no.2
Amar Nath Jha pretending to be the complainant while executing
the sale deed. Hence, it cannot be said that the petitioner did
commit offence of cheating under Section 420 or even under
Section 419 of the Indian Penal Code.
So far the offence under Section 504 of the Indian Penal
Code is concerned, the allegations made in the complaint do not
make out the ingredient of an offence under Section 504 of the
Indian Penal Code.
Section 504 refers to intentional insult with intent to provoke
breach of the peace. The allegation against the petitioners is that
they did ask the complainant to vacate the land, otherwise they
10
would have to face dire consequences. This statement does not
have any element of ” insult” with intent to provoke breach of
peace. The statement attributed to the accused was merely a
statement referring to the consequences, if the land is not vacated
and under this situation, no offence is made out under Section 504
of the Indian Penal Code.
Thus, in view of the findings arrived at hereinabove, the
entire case of Complaint Case No.291 of 2008 including the order
dated 1.8.2009 passed by the 1st Additional Sessions Judge,
Bokaro in Cr. Rev. No.60 of 2008 is hereby set aside so far
petitioners are concerned.
In the result, this application is allowed.
( R.R. Prasad, J.)
ND/