HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION NO.3517 OF 2008 Dated 31-03-2011 Between: Patan Yakuf Ali Khan and another ……..Petitioners And: The State of A.P., rep. by its PP and another ………Respondents HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION NO.3517 OF 2008 ORDER: This petition is filed under Section 482 of Cr.P.C for quashing the proceedings i n Crime No.80 of 2008 of III Town Police Station, Kadapa District. The said Crime was registered against the petitioner on a private complaint filed by the 2nd respondent herein before the I Additional Judicial Magistrate of the First Class, Proddatur on reference under Section 156(3) of Cr.P.C. It is alleged in the said complaint that the A.1 gifted away the property situated in S.No.143 and 144/1 to the extent of Ac.01.46 cents of Bollavaram of Chowtapalle Panchayat under registered gift deed dated 10.6.2002 in favour of the complainant and delivered its vacant possession to the complainant on the very same day within the specified boundaries. The complainant reposing confidence and belief upon the A.1 that the said gift deed is valid and binding upon all the persons accepted the gift and took delivery of possession of the said property on the very same day. The complainant incurred Rs.5,000/- towards stamp duty and registration and other miscellaneous expenditure. The A.1 also made belief of the complainant that he purchased the said property from the rightful owners viz., Kandula Siva Sankara Reddy and brothers under a registered sale deed dated 19.11.1992. The complainant has also incurred the expenditure of Rs.10,000/- for the purpose of removing thorny bushes in the said property. The complainant got surveyed the said property through the local surveyor and came to know that the land referred in the document within specified boundaries was not in existence and the A.1 knowingly executed gift deed in favour of the complainant with ulterior motive to cause loss of expenditure incurred by the complainant and further intended to cheat the complainant. Therefore, it is evident that the accused has intentionally executed gift deed to defraud the complainant and to cause loss to him. A.2 has attested the said gift deed. The said complaint was filed for the offences under Sections 423, 464 and 465 IPC. The learned counsel for the petitioner has pleaded that the A.1 has executed registered gift deed in favour of the complainant and also delivered possession of the property. Therefore, the question of forging the said document by the petitioner does not arise and as such there is no material on record to establish that he has committed the offences under Sections 464 and 465 IPC and since it is only gift deed executed by him without any consideration, the said Section 423 IPC will not attract and further pleaded that the A.2 is only the attestor and he cannot be said to have committed an offence as alleged by the complainant. The learned counsel for the 2nd respondent, on the other hand, has pleaded that the A.2 is the son of A.1 and he is in collusion with A.1 has brought the document into existence and as such he is also liable for prosecution along with A.1 and he further pleaded that the A.1 and A.2 have created a false document knowing fully well that the land gifted under the said document is not in existence. The main allegations of the said complaint are that the A.1 has executed gift deed on 10.6.2002 in respect of certain property in favour of the complainant and A.2 attested the said document and subsequently, the complainant entered into an agreement of sale with third party and when he got the land surveyed, he found that the land is not in existence within the specified boundaries as mentioned therein. Since there is no dispute about the execution of the document, Sections 464 and 465 are not attracted to the said allegations. Section 423 IPC reads as under: “Whoever dishonestly or fraudulently sings, executes or becomes a party or any deed or instrument which purports to transfer or subject to any charge any instrument which purports to transfer or subject to any charge any property, or any interest therein, and which contains any false statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Therefore, there must be dishonest and fraudulent intention in creating the said document and must contain a false statement relating to the consideration or relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate. In the present case, admittedly the A-1 has executed the gift deed in favour of the complainant for his benefit. The contents in the sale deed appears to be false as the land mentioned therein is not in existence within the specified boundaries as mentioned therein. The said allegations are to be enquired into during the course of trial. Prima facie as per the averments made in the complaint, the offence under Section 423 IPC are attracted. Therefore, A.1 is not entitled to quash the said proceedings pending against him. As per the allegations, A.2 was only as an attestor of the said document and simply because he is son of A.1, he cannot be prosecuted for the offence under Section 423 IPC as there is no allegation of his involvement in creating of the said document by A.1. In the result, the criminal petition is partly allowed and the proceedings in Crime No.80 of 2008 of III Town Police Station, Kadapa District against A.2 and in respect of offence under Sections 464 and 465 IPC against A.1 are hereby quashed and the proceedings against A.1 for the offence under Section 423 IPC in Crime No.80 of 2008 of III Town Police Station, Kadapa District shall continue. ______________________ P.DURGA PRASAD,J. Date:31.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL PETITION NO.3517 OF 2008 Dated 31-03-2011 Gk.