IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 Crl.MC.No. 694 of 2009() ------------------------ CC.230/2008 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. BABY, W/O. AUGUSTINE XAVIER, CHAMAVILA HOUSE, OLLUR VILLAGE, THRISSUR. 2. LAL JOHN, S/O. JOHN KURIAN, ATHAPPILLY HOUSE, CHIYYARAM, THRISSUR. 3. SWAPANA LAL, W/O. LAL JOHN, ATHAPPILLY HOUSE, CHIYYARAM, THRISSUR. BY ADVS.MR.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA. RESPONDENT(S): COMPLAINANT: ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DEVASSY, S/O. PERUTTY KUNHAMARA, OLLUR VILLAGE, THRISSUR. R1 BY PUBLIC PROSECUTOR MR. GIKKU JACOB R2 BY ADVS. MR.E.K.NANDAKUMAR, MR.A.K.JAYASANKAR NAMBIAR, MR.K.JOHN MATHAI, MR.P.BENNY THOMAS, MR.ANIL D. NAIR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 694 OF 2009 ------------------------------------------ Dated 26th June 2009 O R D E R Petitioners are the accused in C.C.230/2008 on the file of Judicial First Class Magistrate-III, Thrissur. Learned Magistrate took cognizance of the offences under Sections 463, 464, 465, 468 read with Section 34 of Indian Penal Code on Annexure-A complaint filed by second respondent and forwarded to the police for investigation under Section 156(3) of Code of Criminal Procedure on which after investigation, Annexure-B final report was filed. Allegation in the complaint as well as the case in the final report is that first petitioner executed Annexure-C sale deed with an intention to claim 17.750 cents in survey No.821/2 of Ollur village in favour of second respondent and subsequently without the consent or information of first respondent he executed Annexure-N rectification deed changing survey number and extent and thereby committed the offences. This petition is filed under Section 482 of CRMC 694/2009 2 Code of Criminal Procedure contending that the criminal proceedings is an abuse of process of court and even if the allegations of the petitioners is accepted, no offence as alleged is committed and therefore prosecution is to be quashed. 2. Learned counsel appearing for petitioners and Public Prosecutor were heard. 3. Under Annexure-C sale deed 20 cents in survey No.818/1 and 20 cents in survey No.821/2 were sold by first petitioner in favour of second respondent. Second respondent out of the said property sold 17.750 cents in survey No.821/2 under Annexure-J sale deed, 11 cents in survey No.818/1 under Annexure-F sale deed, 14.850 in survey No.818/1 under Annexure-F sale deed, 1 cent in survey No.818/1 under Annexure-H sale deed and 4.34 cents in survey No. 818/1 under Annexure-I sale deed. Case of the petitioner is that by executing Annexure-N rectification deed, the property sold by first petitioner to second respondent as 40 cents in survey No.818/1, no offence as alleged is committed and therefore, case is to be quashed. 4. Learned counsel appearing for second respondent argued that first petitioner with open eyes CRMC 694/2009 3 executed the sale deed assigning his rights over 20 cents in survey No.818/1 as well as 20 cents in survey No.821/2 in favour of second respondent and thereafter unilaterally behind the back of second respondent he is not entitled to alter either the survey number or the extent and thereby curtail the rights of second respondent over 20 cents in survey No.821/2 purchased under Annexure-C and execute Annexure-N with the common intention of all the accused and they thereby committed the offence taken cognizance by the learned Magistrate and therefore the petition can only be dismissed. 5. When first petitioner sold the property covered under Annexure-C sale deed and transferred all his rights in the said properties in favour of second respondent, he cannot claim any right in those property thereafter. Even if, first petitioner subsequently executes another sale deed in favour of third party or executes a rectification deed saying that the property sold is not the property shown in the document but some other property, without the consent or permission of the assignees the subsequent transfer thereunder will not get any right in the property. Even if the assignor CRMC 694/2009 4 subsequently executes any document, it will not effect the rights of the assignee of the original sale deed. Question in such circumstances, is whether by executing Annexure-N sale deed subsequent to the execution of Annexure-C sale deed in favour of second respondent, any offence as alleged was committed and if not whether it is necessary to continue the criminal prosecution. 6. Offences taken cognizance by the Magistrate are under Sections 463, 464, 465, 463 and 468 of Indian Penal Code. Section 463 is forgery which is punishable under Section 465 of Indian Penal Code. Section 464 is only making a false document necessary to constitute the ingredients of an offence under Section 463. Question is whether execution of a rectification deed subsequent to execution of sale deed, without the consent or knowledge of the assignee of the sale deed would attract an offence as alleged. 7. Under Section 464 a person is said to make a false document who dishonestly or fraudulently makes signs, seals or executes any electronic record or part of any electronic record or affix electronic signature on any electronic record or makes any mark denoting the execution of a document or the CRMC 694/2009 5 authenticity of electronic signature with the intention of causing it to be believed that such document or part of the document was made signed, sealed, executed, transmited or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed or without any lawful authority, dishonestly, or fraudulently by cancellation or otherwise, alters a document or material part thereof after it has been made executed or affixed with electronic signatures either by himself or any other person whether such be living or dead at the time of such alteration or who dishonestly, fraudulently causes any person to sign, seal, execute or alter a document knowing that such such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him does not know the contents of the document or electronic record or the nature of the alteration. 8. Argument of the learned counsel appearing for first respondent is based on illustration of (h). It reads, “Illustration (h): A sells and CRMC 694/2009 6 coveys an estate to Z. A afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery.” Under the said illustration A conveys the estate to Z and thereafter to defraud Z, executes a conveyance of the same to B as if it was executed six months earlier than the date of conveyance to Z, intending to believe that he had conveyed the estate to B before he conveyed it to Z. A in that case has committed a forgery. Illustration (h) would apply to a case where after execution of a document executent executes another document as if it was executed prior to the execution of first document. It is not execution of a document subsequent to the first document. Question depends on the right transferred. If by execution of sale deed the executent has transferred all his right, he will not have any right with him thereafter and even if he executes a document later in favour of third party, that transfer will not get any right. But CRMC 694/2009 7 on the other hand, subsequent to the execution of a document, he executes another document purporting to have executed anterior to the said document and that document is taken as valid, result would be that the right conveyed under the first document will be lost. That case cannot be compared to the present case where by executing a document, the entire right whatever the executent had was transferred and thereafter another document by which the assignee will not get any right was executed. In that case illustration (h) has no application. If petitioner has executed a sale deed as somebody else, it would have attracted the offence. But what was done under Annexure-N sale deed is that first petitioner has stated that right transferred under Annexure-C document is only in respect of 40 cents in survey No.818/1 instead of 20 cents in survey No.818/1 and 20 cents in survey No.821/2. If first petitioner had no right in survey no.821/2 on the date of execution of Annexure-C document, second respondent will not get any right by virtue of Annexure-C document in survey No.821/2. On the other hand, if first petitioner has right over the property in survey No.821/2, irrespective of the CRMC 694/2009 8 execution of Annexure-N document stating that what was transferred is only the property in survey No.818/1, first petitioner cannot divest the right of second respondent obtained under Annexure-C document. Therefore, in any case the offence as against petitioner is not attracted and the continuation of the proceedings is only an abuse of process of court. Petition is allowed. C.C.230.2008 on the file of Judicial First Class Magistrate-III, Thrissur is quashed. It is made clear that the right available with first petitioner to be transferred under Annexure-C or the right derived thereunder by second respondent and the right available with first petitioner subsequent to Annexure-C sale deed and the right available with him to be transferred under Annexure-N document are not decided herein and are to be decided in the civil case. M.SASIDHARAN NAMBIAR, JUDGE. uj.