IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 Crl.MC.No. 4160 of 2009() ------------------------------------ ( CC.116/2009 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE) .................... PETITIONER(S): ACCUSED 1 - 3 ---------------------------------------------- 1. PERUMAPALLIPAD PAYYURIL HYDRU HAJI, AGED 65 YEARS. 2. PERUMAPALLIPAD PAYYURIL FASALU, AGED 45 YEARS, S/O. HYDRU HAJI. 3. PERUMAPALLIPPAD PAYYURIL ANWAR, S/O. HYDRU HAJI, AGED 35 ALL RESIDING AT VADAKKAT AMSO,M MYLATHUR DESOM, CHAVAKKAD TALUK. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.C.P.MOHAMMED NIAS RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ROYAL HOSPITAL (P) LTD., REP. BY ITS DIRECTOR DR.P.K. CHACKO, NEAR GOVT. GUEST HOUSE, WEST HILL, KACHERI AMSOM DESOM, KOZHIKODE TALUK R1 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD R2 BY ADV. SRI.MILLU DANDAPANI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4160 of 2009 -------------------------- ORDER Petitioners are accused 1 to 3 in C.C.No. 116/2009 on the file of Judicial First Class Magistrate's Court-IV, Kozhikode, taken cognizance for the offences under Sections 465, 467, 471 and 120B read with Section 34 of Indian Penal Code on Annexure-1 complaint filed by the second respondent, evidenced by Annexure-19 proceeding paper. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that ingredients of any of the offences is not attracted against the petitioners and therefore, continuation of the proceedings is only an abuse of process of the court. 2. Learned senior counsel appearing for the petitioners and learned senior counsel appearing for the second respondent were heard. CRMC 4160/09 2 3. It is alleged in Annexure-1 complaint filed by the second respondent that as per Document Nos. 437/1980 and 220/1980 of S.R.O., Chevayur, 62 cents of property in R.S.No.5/3C of Kottooli Village was purchased by the second respondent from one Pattiyeri Narendran and subsequently, 32.30 cents, out of the said 62 cents, was sold in favour of Khader Kunhimohammed as per Document Nos.3625/1994 and 6156/1994. Later, by Sale Deed No.4993/2004, rights of Khader Kunhimohammed was purchased by petitioners 2 and 3. 29.70 cents, being the balance extent of 62 cents, continues to be in the possession of the second respondent and second respondent is the absolute owner in possession of the said property. It is contended that when possession certificate was applied for, the Village Officer did not grant it and ultimately, as directed by this Court in Annexure-13 judgment, under Annexure-15 proceedings, finding that second respondent is the owner in possession of 29.70 CRMC 4160/09 3 cents, possession certificate was granted to him. It is contended that petitioners and fourth accused, who have no right over the said 29.70 cents of property, created false Document Nos.3944/2002 and 5686/2004, whereunder, the rights claimed by Abdulla, Mammu Haji and Safiya from the fourth accused by Document No.3944/2002 was transferred in their favour and these documents are forged documents and were created for cheating the second respondent and to claim 29.70 cents of property belonging to the second respondent and those documents were used as genuine, with the knowledge that they are not genuine, to claim right and thereby the offences were committed. 4. Case of the petitioners is that even if the allegations in the complaint as such are accepted, none of the offences are attracted and therefore, continuation of the proceedings is an abuse of process of the court. Petitioners would contend that as per court auction sale, fourth accused CRMC 4160/09 4 purchased 1.61 acres of land in E.P.No.152/1992, in execution of the decree in O.S.No.310/1979 against Pattiyeri Narendran. Subsequently, out of the said property, 14.5 cents was sold in favour of A.S.Pappachan by Document No.4591/1997 and thereafter, Pappachan transferred that property in favour of T.T.Mohammed Koya as per Document No. 509/1996. Luna Aboobacker obtained that property by Document No.1377/2005 and Luna Aboobacker, in turn, transferred that property in favour of the children of the first petitioner. It is the case that remaining 1.46 acres belonging to the fourth accused was purchased jointly by K.P.Abdulla, Mammu Haji and A.M.Safiya under Document No.3944/2002. Subsequently, rights of Abdulla and Mammu Haji were purchased by petitioners 2 and 3 by documents No.5686/2004 and later, rights of Safiya were also obtained under Document Nos.921/2005 and 1377/2005. Later, out of the said property, 1.31 acres was transferred by petitioners 2 and 3 in favour of CRMC 4160/09 5 Mangadan Parambath Land Promoters Pvt. Ltd. by Document No.4159/2007. The remaining 29.70 cents of property belong to petitioners 2 and 3 and it is in their absolute possession and enjoyment. The documents relied on by the petitioners are not forged and in any case, the offences alleged are not attracted against the petitioners. 5. Learned senior counsel appearing for the second respondent relied on the decisions of the Apex Court in Indian Oil Corporation v. NEPC India Ltd. ((2006) 6 SCC 736) and M.Krishnan v. Vijay Singh ((2001) 8 SCC 645) and argued that powers under Section 482 are to be exercised sparingly and evidence is not to be appreciated by this Court in a petition filed under Section 482 of Code of Criminal Procedure and it is for the petitioners to raise the contentions before the learned Magistrate and if at all, seek an order of discharge and the case cannot be quashed as sought for. Relying on the decision of the Apex Court in R.Kalyani v. CRMC 4160/09 6 Janak C.Mehta ((2009) 1 SCC 516), learned senior counsel argued that it is not the law that second respondent is not entitled to lodge a complaint alleging forgery when petitioners, with the knowledge that 29.70 cents of property do not belong to them, but belongs to the second respondent, created false documents as if they have right over the property and therefore, the offences are attracted and in such circumstances, petition is only to be dismissed. 6. Learned senior counsel appearing for the petitioners argued that case of the second respondent is not that petitioners have created any false documents as provided under Section 464 of Indian Penal Code and even if assignors of the documents have no title over the property, execution of an assignment deed will not attract an offence under Section 464 and if Section 464 is not attracted, it is not forgery as provided under Section 463 of Indian Penal Code and if so, neither CRMC 4160/09 7 an offence under Section 468 nor Section 471 of Indian Penal Code is attracted and therefore, the cognizance taken against the petitioners can only be quashed. Learned senior counsel relied on the decisions of the Apex Court in Neelu Chopra v. Bharti ((2009) 10 SCC 184), Devendra v. State of Uttar Pradesh ((2009) 3 SCC 461) and Mohammed Ibrahim v. State of Bihar ((2009) 8 SCC 751) and argued that even if the allegations raised in the complaint are accepted, none of the offences is attracted and therefore, the cognizance taken is to be quashed. 7. Cognizance was taken by the learned Magistrate for the offences under Sections 465, 467, 471 and 120B of Indian Penal Code. Section 468 of Indian Penal code provides for forgery for the purpose of cheating. Under the Section, whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description CRMC 4160/09 8 for a term which may extend to seven years and fine. 8. Section 471 of Indian Penal Code provides that whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record shall be punished in the same manner as if he had forged such document or electronic record. 9. Section 465 of Indian Penal code provides the punishment for forgery. Under Section 465, whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years or fine or both. Forgery is defined under Section 463 of Indian Penal Code as whoever makes any false document or false record with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with CRMC 4160/09 9 intent to commit fraud or that fraud may be committed, commits forgery. 10. Therefore, to attract an offence under Section 465 of Indian Penal Code, a false document should be made with intent to cause damage or injury. Section 464 provides for making false document. Under the Section, a person is said to make a false document or false electronic record - First, who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document or makes or transmits any electronic record or part of any electronic record or affixes any digital signature on any electronic record or makes any mark denoting the execution of a document or the authenticity of the digital signature with the intention of cause it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority CRMC 4160/09 10 he knows that it was not made, signed, sealed, executed or affixed, or secondly, who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration or thirdly, who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot or that by reason of deception practiced upon him he does not know the contents of the documents or electronic record or the nature of the alteration. Thus, first is attracted when a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be CRMC 4160/09 11 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. Therefore, to be a false document, the document should be made or executed claiming to be some one else or authorised by somebody else. If the document is executed by a person without claiming to be some one else or authorised by somebody else, it will not be a false document. If so, it will not be a forgery also. 11. The allegations in Annexure-1 complaint are that petitioners, along with fourth accused, forged document Nos.5686/2004, 921/2005 and 1377/2005 of S.R.O., Chevayur to raise claim over 29.70 cents of property which exclusively belongs to and in the possession of the second respondent. Document Nos. 5686/2004, 921/2005 and 1377/2005 were admittedly executed by Abdulla, Mammu Haji and Safiya. The rights transferred by those documents are the rights obtained by them under Document No. CRMC 4160/09 12 3944/2002 over 1.46 acres of land, which they claim to have obtained from the fourth accused Sajeev Kumar. The right claimed by the fourth accused over the said 1.46 acres of land and transferred under Document No.3944/2002 is the right claimed to be obtained by the fourth accused in court auction sale in E.P.No.152/1992, in execution of the decree in O.S.No.310/1979 and taken delivery as per the order in E.A.No.355/1994. Neither the assignors of the petitioners nor the fourth accused have a case that by Document Nos.3944/2002, 5686/2004, 921/2005 or 1377/2005, rights obtained by the second respondent by Document No.437/1980 or Document No. 220/1980 of S.R.O., Chevayur were transferred. The right transferred by the fourth accused in favour of Abdulla, Mammu Haji and Safiya is the exclusive right allegedly obtained in court auction sale by him and not the right claimed by the second respondent as per Document No.220/1980 or 437/1980. K.P.Abdulla, Mammu Haji, and Safiya executed the CRMC 4160/09 13 documents claiming that they obtained the rights under Document No.3944/2002. They did not claim that they were executing those documents as somebody else or on the authority of somebody else. 12. True, it is the case of the second respondent that fourth accused did not get any right over the property, as he has not taken delivery of 62 cents of property obtained by the second respondent under Document Nos.220/1980 and 437/1980 of S.R.O., Chevayur. The question is whether by executing a document by the fourth accused in respect of the property obtained by him under a sale certificate in court auction sale or by executing a document by Abdulla, Mammu Haji or Safiya in respect of the property obtained by them from the fourth accused under Document No. 3944/2002, false documents as provided under Section 464 of Indian Penal Code are made or executed. It is not for this Court, exercising the inherent jurisdiction, to decide whether fourth CRMC 4160/09 14 respondent has obtained possession of the property covered by the sale certificate. It is a dispute to be settled by the civil court. 13. There is no case for the second respondent that petitioners, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, altered any document. So also, there is no case that petitioners dishonestly or fraudulently caused any person to sign, seal, execute or alter a document. Neither secondly nor thirdly of Section 464 of Indian Penal Code is attracted, even according to the second respondent. Hence, the only question is whether firstly is attracted. 14. To attract an offence under first of Section 464 of Indian Penal Code, petitioners should have dishonestly or fraudulently made, signed, sealed or executed a document or part of a document with the intention of causing it to be believed that such document or part of the document CRMC 4160/09 15 was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, executed or affixed. As stated earlier, there is no case for the second respondent that Document Nos.3944/2002, 5686/2004, 921/2005 or 1377/2005 were not executed by the persons, who are shown in the documents as executants or that the executants claimed in those documents that they were somebody else. The only case is that even though fourth accused had no right over the property, he transferred the property in favour of Abdulla, Mammu Haji and Safiya and those assignees transferred the property so obtained, in favour of petitioners 2 and 3 claiming that they have right over the property and therefore, they are forged documents. The argument is that with the knowledge that the executants therein have no right over the property and with the knowledge that the property belongs to the second respondent, those documents were created in CRMC 4160/09 16 respect of the property of the second respondent and therefore, they are false documents. I cannot agree with the submission of the learned senior counsel that even if executants of the documents have no right over the property, by transferring that property, claiming it as their property, false documents are made. 15. The Honourable Supreme Court in Devendra's case (supra) held: “Making of any false document, in view of the definition of “forgery” is the sine qua non therefor. What would amount to making of a false document is specified in Section 464 thereof. What is, therefore, necessary is to execute a document with the intention of causing it to be believed that such document inter alia was made by the authority of a person by whom or by whose authority he knows that it was not made.” 16. Their Lordships in Mohammed Ibrahim's case (supra) considered the question in detail. Analysing Section 464 of Indian Penal Code, it was held that Section 464 divides the false documents into three categories. First is where a person CRMC 4160/09 17 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. The other two parts relates to cancellation of a document as well as alteration of the document which are not relevant in this case. Their Lordships held that in short, a person is said to have made a false document if he made or executed a document claiming to be someone else or authorised by someone else or he altered or tampered a document or he obtained a document by practising deception or from a person not in control of his senses. Their Lordships then held: “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 CRMC 4160/09 18 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 or a person, by whom or by whose authority he knows that it was not made or executed. 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.” (emphasis supplied) 17. The facts are identical. Learned senior counsel appearing for the second respondent relied on paragraph 23 of the judgment and argued that by the impugned documents, accused made it appear that they have right over the property and transferred CRMC 4160/09 19 the property as if it is their property when, to their knowledge, it is not their property and that of the second respondent and in such circumstances, it is not the law that no offence is attracted. Paragraph 23 of the judgment reads: “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 criminal offence. It a person sells a property knowing that it does not belong to him and thereby defrauds the person who 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 purchase under the deed may not be able to make such complaint.” 18. The Honourable Supreme Court was explaining the position when a person transfers a property as belonging to him, when he has no right over the property. Their Lordships only explained that though such document is not a false document and therefore, it is not a forgery, it does not mean that in such a case no criminal offence is CRMC 4160/09 20 involved. If a person sells a property knowing that it does not belong to him and thereby defrauds the person who purchases the property, the person defrauded has a right to complain the fraudulent act of cheating. But, that does not mean that when such a purchaser complains of defrauding, it is a false document or that forgery was committed. It is different from the case projected by the second respondent. If A purchases a property from B, though B has no right over that property, as B fraudulently made A to believe that it is his property and induced A to purchase it, B thereby cheated A. But, for that reason, the document will not be a false document. Their Lordships held that though it is not a false document, that does not mean that the vendee has no right to proceed against the vendor or that vendor is not liable for cheating. But, that does not mean that second respondent, whose right, if any, will not be affected by the impugned documents, can contend CRMC 4160/09 21 that those documents are false documents as provided under Section 464 of Indian Penal Code or that thereby petitioners committed offences either under Section 465 or 468 or 471 of Indian Penal Code. If fourth accused did not derive right over the property purchased in court auction sale or over 29.70 cents of property claimed by the second respondent, whatever be the transfer effected by the fourth accused or by the assignors of the fourth accused, the right of the second respondent under Document Nos.220/1980 and 437/1980, if any, will not be affected. Therefore, right of the second respondent cannot be equated with the right of a person, who was fraudulently induced to purchase a property from a person, who had no right over the property, which was considered by the Honourable Supreme Court in the clarification in paragraph 23 of the said decision. It is not for this Court to settle the title over 29.70 cents of the disputed property, as that question can only be CRMC 4160/09 22 decided by the civil court. 19. Even if the entire allegations in the complaint are accepted, the case is only that fourth accused, who has no right over 29.70 cents of property, transferred it to K.P.Abdulla, Mammhu Haji and Safiya as per Document No.3944/2002 and those assignees transferred that property by the impugned documents in favour of the petitioners. They transferred the property by not claiming that it is the property of the second respondent or obtained by his authority or that the documents were executed by some other person. In such circumstances, none of the offences alleged either under Section 465, 468 or 471 of Indian Penal Code is attracted. 20. The question is whether, in such circumstances, prosecution against the petitioners is to be quashed exercising the power provided under Section 482 of Code of Criminal Procedure. When none of the offences alleged are attracted, CRMC 4160/09 23 even if the allegations in the complaint are accepted as such, continuation of the proceedings can only be an abuse of process of the court. 21. The legal principles in regard to quashing of criminal proceedings are reiterated by the Apex Court, after analysing the earlier decisions from State of Haryana v. Bajan Lal ((1992) Suppl. 1 SCC 335) to Monica Kumar (Dr.) v. State of U.P. ((2008) 8 SCC 181), in R.Kalyani v. Janak C.Mehta ((2009) 1 SCC 516), as follows: “(1) The High Court ordinarily would not exercise