Crl. Revision No.2663 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.2663 of 2011 (O&M) Date of decision: 01.11.2011 Malak Singh @ Malik Singh and another ....Petitioners Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. K.S. Gill, Senior Advocate, with Mr. R.K. Dhiman, Advocate, for the petitioner. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Accused/revisionists are assailing judgment dated 17.10.2011 passed by Additional Sessions Judge, Fast Track Court, Jalandhar, whereby appeal filed by the accused/revisionists (appellants therein) was dismissed upholding the judgment of conviction and sentence dated 29.8.2008 passed by Judicial Magistrate Ist Class, Jalandhar. Brief facts of the present case are that Davinder Singh son of Malkit Singh Chadha and Mohinder Kaur wife of Pritam Singh filed a complaint with the police alleging that property No. EF-190 bearing khasra No.8073/3 measuring 7 marlas 81 sq. ft. situated at Old Railway Road, Jalandhar, was earlier owned by Joginder Kaur wife of Charan Singh and Smt. Amar Kaur wife of Sucha Singh; complainants have purchased the property in question from Joginder Kaur and Amar Kaur vide registered sale deed through their power of attorney. Accused No.1 to 6, as mentioned in the complaint, have started claiming themselves Crl. Revision No.2663 of 2011 (O&M) -2- owner of the property on the basis of forged, fabricated and manufactured documents of power of attorney as well as sale deed; after investigation challan was submitted in the Court for offences punishable under Sections 467, 468, 471, 120-B IPC against the accused/revisionist, however, no challan was submitted against Iqbal Singh and others saying that they are not found on the address given and are untraceable. Charges were framed and thereafter from the side of prosecution Amar Kaur as PW1, ASI Rajinder Nath as PW2, SI Amrik Singh as PW3, Resham Singh as PW4, Paramjit Singh as PW5, Joga Singh, Clerk of D.C. Office, Jalandhar, as PW6, Bachan Singh son of Sher Singh as PW7 and Taranjit Singh son of Jaswant Singh as PW8 were examined. All the prosecution witnesses have proved the prosecution case stating that complainants are the owners in possession of the property and they have purchased the property from the then owners Joginder Kaur and Amar Kaur. It has come in the evidence that Iqbal Singh has executed power of attorney in favour of Malak Singh accused/revisionist No.1 saying original owners i.e. Joginder Kaur and Amar Kaur had executed 'Wills' dated 13.5.1979 in his favour, therefore, he is the owner of the property and thereafter Malak Singh accused has executed sale deed in favour of his own son i.e. another accused Satnam Singh, revisionist No.2. Learned trial Court as well as learned appellate Court have found both the accused/revisionists guilty for offences punishable under Sections 467, 468, 471, 120-B IPC and they were directed to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- each and in default of payment of fine to further undergo rigorous imprisonment for two months each for an offence under Section 467 Crl. Revision No.2663 of 2011 (O&M) -3- IPC. They were also sentenced to undergo rigorous imprisonment for a period of one and half years and to pay a fine of Rs.500/- each and in default of payment of fine to undergo rigorous imprisonment for one month each for the offence punishable under Section 468 IPC and they were further sentenced to undergo rigorous imprisonment for one and half years and to pay a fine of Rs.500/- each and in default of payment of fine to undergo rigorous imprisonment for one month each under Section 471 IPC. Both of them were also awarded sentence of two years rigorous imprisonment and to pay a fine of Rs.1000/- each and in default of payment of fine to further undergo rigorous imprisonment for two months each for an offence punishable under Section 120-B IPC. I have heard learned counsel for the revisionists and have carefully examined the material made available by learned counsel for the revisionists. Learned senior counsel for the accused/revisionists, while placing reliance on the judgment of Hon'ble Apex Court in the case of Mohammed Ibrahim and others Vs. State of Bihar and another, (2009) 8 Supreme Court Cases 751, has vehemently argued that even if entire prosecution story is taken as correct even then complainants have no locus to say that they have been cheated by false and fabricated documents rather it is a case where revisionists/accused were cheated by Iqbal Singh, who having received consideration of the property, had executed power of attorney in favour of accused/revisionist No.1 Malak Singh and pursuant thereof Malak Singh has executed sale deed in favour of accused/revisionist No.2 Satnam Singh. He has further argued that in the present case no challan was ever submitted against Iqbal Crl. Revision No.2663 of 2011 (O&M) -4- Singh and accused/revisionists have been implicated in the case without realizing that they are the victims of the fraud played by Iqbal Singh. To appreciate the arguments advanced by learned senior counsel for the revisionists, few facts are necessary to be narrated. Undisputedly, earlier Joginder Kaur wife of Charan Singh and Smt. Amar Kaur wife of Sucha Singh were the owners in possession of the property in question; both of them have executed power of attorney in favour of Resham Singh and Resham Singh had executed sale deed of the property in question in favour of the complainants, as stated by Amar Kaur PW1 and Resham Singh PW4; Iqbal Singh has executed one power of attorney in favour of Malak Singh dated 31.12.1997/6.1.2008 (Ex.PW6/B) and on its basis Malak Singh, revisionist No.1 had executed sale deed (Ex.PW6/C) in favour of his own son Satnam Singh, revisionist No.2 on 20.1.1998. Undisputedly, disputed power of attorney Ex.PW6/B, executed by Iqbal Singh in favour of Malak Singh, accused/revisionist No.1, was executed saying original owners i.e. Joginder Kaur and Amar Kaur had executed 'Wills' dated 13.5.1979 in his favour. Amar Kaur PW1 as well as Joginder Kaur are still alive. Amar Kaur PW1 has stated on oath that both of them are Non-resident Indians and had never come to India during the period when alleged 'Wills' dated 13.5.1979 were said to be executed by them in favour of Iqbal Singh. Moreover, when both the executants of the alleged 'Wills' dated 13.5.1979 are still alive, therefore, Iqbal Singh cannot said to have inherited the property of Amar Kaur and Joginder Kaur. Moreover, as observed herein above, Amar Kaur and Joginder Kaur have already sold property in question through their power of attorney holder Resham Crl. Revision No.2663 of 2011 (O&M) -5- Singh in favour of the complainants. Hon'ble Apex Court in the case of Mohammed Ibrahim (supra) in paragraphs No.11 to 17 has observed as under: - “11. Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents 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 express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. 12. Section 464 defining "making a false document" is extracted below : "464. Making a false document.--A person is said to make a false document or false electronic record--- First.--Who dishonestly or fraudulently - (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a 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 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 alternation; 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 practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. Explanation 1 - A man's signature of his own name may amount to forgery. Explanation 2 - The making of a false document in the Crl. Revision No.2663 of 2011 (O&M) -6- name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. [Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]." 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 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 practicing deception, or from a person not in control of his senses. 15. The sale deeds executed by 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 of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor Crl. Revision No.2663 of 2011 (O&M) -7- colluded with 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 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 two possibilities. The first is that he bonafide 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 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 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.” It is no more res integra that to constitute offences under Section 467, 471 IPC condition precedent is 'making a false document'. As per the observation of Hon'ble Apex Court in the case of Mohammed Ibrahim(supra) in paragraph No.14, 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. In the case in hand it is proved that Iqbal Singh and present revisionists have conspired with each other to grab the property of the complainants. Accused revisionists knew that Iqbal Singh was not Crl. Revision No.2663 of 2011 (O&M) -8- having any authority from Joginder Kaur and Amar Kaur over the property in question and alleged 'Wills' dated 13.5.1979, executed by Joginder Kaur and Amar Kaur, are proved to be false in view of the statement made by PW1 Amar Kaur that they have never executed any 'Will' in favour of Iqbal Singh and had never visited India during the period alleged 'Wills' were said to be executed by them. Meaning thereby, revisionists as well as Iqbal Singh have dishonestly and fraudulently with intention to defraud the original owners i.e. the complainants have stated that they have authority/'Wills' from the original owners i.e. Joginder Kaur and Amar Kaur. Since alleged authority/'Wills' stated to be executed by Joginder Kaur and Amar Kaur are not proved, therefore, execution of power of attorney by Iqbal Singh in favour of the revisionist No.1 Malak Singh and thereafter sale deed by revisionist No.1 in favour of his own son Satnam Singh revisionist No.2, proved to be a false document prepared by Iqbal Singh, Malak Singh and Satnam Singh with dishonest and fraudulent intention to deprive the true owners i.e. the complainants from their own property. Therefore, in the opinion of this Court, offences against the revisionists stand proved. Appellate Court seems to be well within its jurisdiction while directing the Commissioner of Police, Jalandhar, to take action against Iqbal Singh. I find no merit in the revision petition. Dismissed. (Alok Singh) Judge November 01, 2011 R.S.