*THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY +CRIMINAL PETITION No.631 of 2008 % 5-8-2011 # Motamarri Surya Kameswara Rao & another. … Petitioners/Accused Vs. $ Motamarri Kiran Kumar & another and State of A.p., rep. by Public Prosecutor. … Respondents ! Counsel for the Petitioner: Sri D.V.RAMANA MURTHY Counsel for the Respondents 1 & 2 : T.NAGESWARA RAO Counsel for the Respondent No.3 : THE PUBLIC PROSECUTOR < Gist: > Head Note: ? Cases referred: 1. AIR 1963 SC 1572 THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.631 OF 2008 ORDER: 1. This Criminal Petition is filed by the Petitioners/Accused, under Section 482 Cr.P.C., seeking to quash C.C. No.968 of 2007, pending on the file of Additional Judicial First Class Magistrate, Vizianagaram registered in respect of offences punishable under Sections 420, 463, 192 and 199 Read with Sections 34 and 120 (B) I.P.C. 2. The Revision Petitioners are the accused and the Respondents Nos. 1 and 2 are the complainants in the Calender Case. For the sake of convenience, I refer the parties as arrayed in the Calender Case. 3. It is pleaded in the complaint as follows : The Complainants are brother and sister and children of A-1 in the case. A-1 was originally having Industrial estate in Unit No.B-6 in the Industrial Park, V.T. Agraharam, Vizianagaram in the name and style of Sarat Kiran Industries as the sole proprietor of it. A-1 executed a registered deed of settlement dated 22-07-2004 for the entire B-6 unit in the name of the complainants and delivered the vacant possession of it there under. Thereafter, A-1 wrote a letter to the complainants directing them to pay a sum of Rs.1,19,000/- payable by him (A-1) to the District Industrial Corporation claiming that he owed the said amount to the Corporation on B-6 unit. Consequently, the complainants paid the sum of Rs.1,19,000/- to the District Industrial Corporation on 18-07-2007 and obtained a receipt. Thereafter, the complainants changed the name of the firm and carried on the business in the name and style of M/s. Motamarri Textiles in the said B-6 unit, whereas the same business got nothing to do with the immovable property covered by the Settlement Deed. Further, A-1 owed a sum of Rs.15,00,000/- to the A.P. State Financial Corporation, Vizianagaram and as per the directions and instructions of A-1 the complainants paid the entire amount payable to them and consequently the A.P. State Financial Corporation, Vizianagaram, returned the registered deed of settlement dated 22-07- 2004 and other documents deposited by A-1, which was intimated to the complainants vide letter in AFC/VZMLGI/2006-07/1443, dated 25- 07-2006. Further, the complainants also paid necessary sales tax got incorporated their name for the firm in the relevant Sales Tax Department records. Further, the first complainant conveyed his undivided interest in the unit to the second complainant by way of executing a registered deed of relinquishment, dated 07-08-2006 for a consideration of Rs.6,00,000/- and put her in the vacant possession of the unit. Later, the complainants leased out the unit to M/s. Kakatiya Hatcheries in the month of September, 2006 under a registered deed of lease and ever since the lessees have been in possession and enjoyment of the property. Further, while so, suppressing all the above said facts, A1 created a registered deed of revocation dated 24-08-2007 with an evil intention, wrongly mentioning that he was the possessor of the unit, which is not true. Hence, A1 and A2 are liable to be punished for the said offences. 4. The claim of A1 and A2 is as follows: At the time of execution of settlement deed, the complainant assured A1 and A2 that they would take care of them or lookafter them well till their death. Having believed the version of the complainants 1 and 2 and out of love and affection towards them and ignoring the claims of their other children, the unit was settled in the name of both the complainants, but after the settlement deed was executed, the complainants became indifferent and neglected to take care of A1 and A2 and left them to their fate. Further, the complainant No.1 incurred several debts from various banks as well as chit funds for his business. The complainant No.1 prevailed upon A1’s wife Motamarri Bhavani to stand as surety to his debts and made her to mortgage property standing in her name. The first complainant also committed default in discharging his debts consequent upon which, his creditors harassed A1’s wife and made her life miserable. Therefore, under those circumstances, A1 felt that the complainants 1 and 2 committed breach of faith and went back on their assurance to lookafter him (A1) and his wife. Hence, he revoked the settlement deed dated 22.7.2004 by executing the deed of revocation dated 24.8.2007. Further A1 worked as the President of the Chambers of Commerce, Vizianagaram and is a respectable citizen. Further A2 got nothing to do with the settlement deed or revocation deed. Further A1 and A2 denied the other allegations made by the complainants 1 and 2. It is also claimed that even supposing that it is incorrectly stated that A1 is in the possession of unit, it does not amount to making a false document within the meaning of Sections 463 and 464 IPC. It is also claimed that the ingredients of Sections 420, 192 and 199 read with Section 34 IPC are not established to prosecute A1 and A2 for those offences. 5. Therefore, it is to be mainly considered as to whether there is prima facie material with regards to the alleged offences and accordingly A1 and A2 are liable for prosecution. 6. In order to dispose of the matter, all the corresponding and relevant circumstances are to be taken into consideration. It includes, the question of relationship between A1 and A2 on one hand and the complainants 1 and 2 on the other hand and also under what circumstances, the settlement deed and also the revocation deed came into existence. 7. Significantly as admitted by both, A1 was the owner of the unit and he conveyed the unit in favour of the complainants 1 and 2 under the settlement deed dated 22.7.2004 even going to the extent of ignoring his other children, which must have been done out of love and affection towards them and also under the impression that by doing so, both of them would be benefited and prospered in life. It is also to be emphasized in this context what is claimed by A1 and A2 that, even though the complainants 1 and 2 assured them (A1 and A2) that they would take care of them and look after them (A1 and A2) till their death which they (A1 and A2) believed, they (the complainants 1 and 2) failed to take care of them accordingly and further the complainant No.1 involved in borrowing several debts from various banks and also chit funds for his business and he prevailed upon A1’s wife Motamarri Bhavani to stand as surety for his debts and made her to mortgage her property, but he committed default in discharging the debts, following which his creditors harassed the wife of A1 and made her life miserable and under those circumstances, A1 involved in executing the revocation deed. Further, it is also to be emphasized what is narrated by the complainants that A1 himself informed them that he had to pay the amounts of Rs.1,19,000/- and Rs.15,00,000/- to the District Industrial Corporation and A.P. State Financial Corporation at Vizianagaram on behalf of the unit respectively, which prima facie establish his bonafides in the matter. It makes it categorical that by that time A1 sticked on to the deed of settlement and acted accordingly. Further by executing the revocation deed, the unit was not re-conveyed in favour of A1 in any case, because by the date of execution of it, he got no rights over the unit as prior to that he parted with it by way of executing the settlement deed dated 22.7.2004. He cannot convey any property when he got no rights over it. 8. It appears to me, therefore prima facie, in the facts and circumstances of the case that while doing so, A1 got no criminal intention in executing the revocation deed in respect of the unit and he must have done so under some compelling circumstances. In any case, there are no allegations against A2 which constitute any crime. 9. In order to attract the provisions of Section 420 IPC, there should be clear material to the effect that A1 induced the complainants 1 and 2 to part with certain property with a dishonest intention to make unlawful gain and believing the same to be true and correct, the complainants 1 and 2 acted upon his representation following which in fact A1 and A2 gained unlawfully, whereas there is no basis to say that A1 and A2 involved in such acts at the time of executing the settlement deed and there is a clear material in fact to the effect that out of love and affection only A1 executed the settlement deed in favour of the complainants 1 and 2, which does not attract the provisions of Section 420 IPC. 10. Sections 192 and 199 IPC deal with question of giving false evidence in judicial proceedings, but in the present case, there is no basis to say that A1 and A2 involved in giving false evidence in any judicial proceedings in the matter to attract those provisions. 11. Further, Section 463 IPC provides that whoever makes any false document or part of a document 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 intent to commit fraud or that fraud may be committed, commits forgery. 12. Section 464 IPC reads as under: “Making a false document A person is said to make a false document firstly- Who dishonestly or fraudulently makes, signs, seal executes a document or part of a document, or makes any mark dene the execution of a document, with the intention of causing it to be believed that such document or part of a document 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 signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly- Who, without lawful authority, dishonestly or fraudulenty by cancellation, or otherwise, alters a document in any material part thereof, after it has been made or executed 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, 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 the nature of the alterations. 13. Further Sections 465 to 489 (a) to (e) deals with punishments with regards to creating or possessing or using false documents which are subject to the provisions of Sections 463 and 464 IPC. 14. In order to attract the provisions of Section 463 IPC read with Section 464 IPC, it has to be established the following ingredients: (i) there must be commission of any act or acts covered by the sub-clauses a, b, c & d of Section 464 with dishonest or fraudulent intention; and (ii) it was done with the intention of causing it to be believed that it was done by such person or authority of such person, knowing that it was not done by such person or the authority of such person. 15. In the first circumstance covered by the second part, there would be execution of a false document impersonating a third person by a person making it to believe that he was that third person though he was not knowingly. In the second circumstance covered by the second part, two aspects arise i.e. impersonation of third party and execution of a document by a person making it to believe that he did so by virtue of an authority he got to do so, which he did not have and only the third party got actually to his knowledge and the other aspect is execution of a document by a person in favour of a third party without authority knowing that he got no authority to do so. Here the words ‘Authority of a person’ also include the question of authority of a person who in fact involved in doing such act or acts making it to believe that he got authority to do so. It is significant that it does not speak specifically that it is with reference to such authority of a third person only by reason of which it is to be referred to both first person as well as third person as the case may be. Illustration (h) under Section 464 clearly aides this view, it reads as under: “A sells and conveys 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”. If the intendment of the legislation is to cover only the cases of forgery by impersonation under the purview of the provisions that illustration would not have been made, whereas in fact, a plain reading of the provision makes it very clear that even a person who did such act or acts without authority also comes within the purview of the act. The amplitude of the meaning of forgery is wide enough to include not only the cases of involvement of such act or acts done by impersonation, but also other cases of doing so without authority. 16. It is necessary to consider what is ‘dishonest’ intention and what is ‘fraud’ under the Indian Penal Code. Section 24 of the Code says “whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly”. Section 23 of the Code says as follows: ‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is not legally entitled. ‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally entitled. So a person can be said to have dishonest intention if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of the property to which the person so losing is legally entitled. The definition does not provide that the gain or loss contemplated need to be a permanent one or a total one. In other words, it implies that even temporary gain or loss contemplated is covered by the section. 17. In VIMLA v. DELHI ADMINISTRATION[1], the Supreme Court held as under: “The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.” 18. If at all A1 and A2 had any criminal intention in creating the document, it would come within the purview of Section 363 and 364 IPC and the corresponding penal sections. But when in the facts and circumstances of the case, it is clear that there is no prima facie evidence of existence of such circumstances, the question of prosecuting A1 and A2 for the alleged offences does not arise at all. On the other hand, prosecuting them in respect of those offences is nothing but abuse of process of law. If the complainants 1 and 2 intend to get the document cancelled, they can approach the Civil Court because the matter is purely civil in nature. 19. For the foregoing reasons, the entire proceedings in C.C. No.968 of 2007, on the file of Additional Judicial First Class Magistrate, Vizianagaram, are liable to be quashed. 20. In the result, the Criminal Petition is, accordingly, allowed quashing the proceedings in the calendar case. ____________________________ G. KRISHNA MOHAN REDDY, J Dated: 05-08-2011. Note: L.R. Copy to be marked. B/o DA/DSH THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.631 OF 2008 August, 05, 2011 DA/DSH HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.631 OF 2008 DATE: 05-08-2011 BETWEEN: Motamarri Surya Kameswara Rao and another. - - - Petitioners/Accused. AND Motamarri Kiran Kumar and another And The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondents/ Complainants. [1] AIR 1963 SC 1572