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J.Mullai vs State Rep. By on 7 September, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 07.09.2018

Reserved on : 30.08.2018

Pronounced on : 07.09.2018

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.(MD).Nos.14827 of 2012 and
20186 of 2013
and
M.P(MD).Nos.1 of 2012 and 1 of 2013

J.Mullai ..Petitioner/A1 in
Crl.O.P.No.14827/12

P.Periyasamy ..Petitioner/A2 in
Crl.O.P.No.20186/13

Vs.

1.State rep. by
The Inspector of Police,
District Crime Branch,
Karur.

2.A.Panneerselvam ..Respondents in both
petitions

PRAYER: These Criminal Original Petition have been filed under Section 482 of
Criminal Procedure Code, to call for the records the records relating to
impugned FIR in crime No.17 of 2012 on the file of the Inspector of Police,
District Crime Branch, Karur and quash the same.

For Petitioners : Mr.T.Antony Arul Raj for petitioner
in Crl.O.P.No.20186/2013

Mr.V.Kathirvelu senior counsel
for Mr.A.N.Ramanathan
for petitioner in Crl.O.P.(MD) No.
14827/2012

For Respondents :Mr.P.G.Ohm Chairma Prabhu,
G.A.(Crl. Side) for R1
Mr.S.Ravi for R2

:ORDER

These quash petitions are filed to quash the first information report
registered against the petitioners/A1 and A2 for the offences under Section
120(b), 465, 468 , 471 and 420 of I.P.C., alleging that A1 has filed a suit
in O.S.No.54 of 2011 on the file of the District Court, Karur for declaration
and recovery of possession as against 88 defendants, in which, the second
respondent/defacto complainant is shown as D1. In the said suit proceedings,
a photocopy of Inam Fair Register has been filed as document No.2, which is
alleged to be a forged one. According to the second respondent/defacto
complainant, one Sakthivel, who is working as Clerk in the office of the suit
temple, in another suit, deposed that the said document was written by A2.
Further the defacto complainant obtained information under the Right to
Information Act from the Collector, which would show that the said document
was not issued by the Collectorate and it is a forged one. On such
complaint, the first respondent registered a case for the offences as stated
above against the petitioners in both the petitions. Therefore, the
petitioner filed individual applications for quashing the said first
information report.

2.The learned senior counsel appearing for the petitioner in
Crl.O.P.(MD) No.14827 of 2012 and the learned counsel appearing for the
petitioner in Crl.O.P.(MD) No.20186 of 2013 submitted that the alleged
document viz., xerox copy of Inam Fair Register has been filed along with the
plaint and it is copied from the original register and nothing forged by the
petitioner. The said document was also certified by the Collector, Karur
District and it was not issued by Collectorate of Karur District. Further,
the petitioner/A1, in the capacity of Assistant Commissioner/Executive
Officer under the Hindu Religious and Charitable Endowment Board, filed the
suit to recover the temple properties. In respect of said suit, there is no
wrongful gain to the petitioner/A1 or wrongful loss to the department.

3.They would further submit that the present complaint has been lodged
only to escape from the recovery proceedings of the temple property
admeasuring 18.75 acres and 7.43 acres from the defacto complainant/second
respondent herein. It is nothing but clear abuse of process of law. The
petitioners are public servants appointed by the Government and while
discharging their public duties in good faith, they cannot be penalised by
way of criminal proceedings. Moreover, there is absolutely no necessity for
them to commit forgery, falsification and to cheat the second respondent and
personally they have no grievance against the second respondent herein.

4.They would further submit that even assuming that the alleged Inam
Fair Register was not issued by the Collector of Karur District, it never be
stated that it is a forged and fabricated one. It is seen from the records
that both the documents produced by the petitioner as well as the second
respondent are one and the same and the contentions are also one and the
same. Therefore, the first information report is nothing but an abuse of
process of law and it is liable to be quashed.

5.The learned Government Advocate (criminal side) appearing for the
first respondent State would submit that the investigation is in initial
stage and the investigation is going on and hence, the criminal original
petitions are liable to be dismissed.

6.The learned counsel appearing for the second respondent would submit
that the said Inam Fair Register was prepared by A2 and it is proved by the
Clerk of the petitioners’ office, who deposed in O.S.No.366 of 2009 on the
file of the District Munsif, Karur. Therefore, the petitioners committed
forgery and fabricated the said documents and they are liable to be
prosecuted. Further, it is also proved by the information furnished under
the Right to Information Act by the Collectorate of Karur District that the
said Inam Fair Register was not issued by the Collectorate of Karur District.
The second respondent would further submit that the plaint in O.S.No.54 of
2011 has been struck off and as such, the entire suit is filed without any
merits. Further, the present case has been registered and the investigation
is in the initial stage and at this juncture, it cannot be quashed and prayed
for dismissal of the petitions.

7.Heard the learned senior counsel appearing for the petitioner in
Crl.O.P.(MD) No.14827 of 2012 and the petitioner in Crl.O.P.(MD) No.20186 of
2013 and the learned Government Advocate (criminal side) appearing for the
first respondent State and the learned counsel appearing for the second
respondent/defacto complainant and also perused the materials available
before this Court.

8.The petitioner/A1 is an Assistant Commissioner and Executive Officer
of H.R. and C.E. department of Arulmighu Kalyana Venkatramanaswamy Temple,
Thanthonimalai, Karur District. The Idol Sri Kalyana Pasupatheeswaraswamy,
Sri Kalyana Pasupatheeswarasamy Devasthanam, Karur filed a suit in O.S.No.54
of 2011 on the file of the District Judge, Karur for declaration and recovery
of its property from 88 defendants, in which, the second respondent was shown
as 1st defendant. The petitioner, being an Executive Officer of the said
temple, represented the plaintiff temple. Therefore, she has nothing to do
with the plaint and its averments and the documents filed along with the
suit. Moreover, the said suit was laid in the year 2011 and the alleged Inam
Fair Register was obtained only on 20.05.2009. Admittedly, the petitioner
joined as Executive Officer of the plaintiff temple only on 28.07.2011.
Therefore, she has nothing to do with the said documents and only on
instructions of temple administering committee, the suit has been laid in
which the petitioner represented on behalf of the temple. As far as the
second accused is concerned, while he was working as Executive Officer of the
plaintiff temple, who had written the Inam Fair Register.

9.According to the second respondent, the second accused, who was
working as Executive Officer of the plaintiff temple, had written and
prepared the said Inam Fair Register and fabricated and on that basis only,
the said has been laid. It is very curious to note that the second accused
also retired from service as early as in the year 1996 itself. The said
allegation made only on the basis of the evidence of one Sakthivel, who was a
writer of the plaintiff temple, deposed to that effect that the said document
was prepared by the second accused. Therefore, both the accused were not in
service, at the time of alleged occurrence took place viz., on 20.05.2009,
the date of certifying the document by the Collectorate Office, Karur
District.

10.Further, it is seen from both the documents submitted by the
plaintiff as well as the second respondent herein are one and the same and
nothing was forged and fabricated by the petitioners herein. Further, the
information furnished to the second respondent by the Collectorate of Karur
District would also stated that the documents vide reference No.T.D.1560 was
not issued from the office of the Collector, Karur District. The information
never state that the document was forged or fabricated one. It is also seen
from the Inam Fair Register produced by the second respondent, the contents
are one and the same and nothing has been fabricated or forged by the
petitioners.

11.Moreover, as stated above, the petitioners are representing on
behalf of the temple. The petitioners discharged their duty in good faith
and they have no personal vendetta or personal interest in the suit
properties. It is clearly shows that only to escape from the proceedings of
recovery of the temple property, the second respondent lodged a complaint
that too against the petitioners on personal capacity. It is also curious to
note that the suit has been laid against the second respondent and also
totally against 88 persons. Except the second respondent, no other persons
alleged that the said document was fabricated or forged one by the
petitioners. Therefore, the present complaint is nothing but an abuse of
process of law and it has no legs to stand further.

12.Further, it is seen from the allowing the rejection of plaint, it
was allowed on the ground that the suit has been filed without due permission
from the Commissioner of H.R. and C.E. Department, Therefore, it was allowed
only on technical ground and not on merits. The said order has nothing to do
with the present criminal case and in any way would not support the case of
the second respondent. Moreover, as against the said order, the plaintiff
temple also filed appeal suit before this Court and it is pending in A.S.(MD)
SR.No.25270 and 25271 of 2018. Further, the petitioner/A1 never filed the
suit and the alleged document on her personal capacity and both the
petitioners have no wrongful gain or wrongful loss to anybody. Moreover, the
petitioner/A1 has been joined as Assistant Commissioner/Executive Officer of
the temple only on 07.07.2011. The alleged document admittedly according to
the second respondent was forged and fabricated on 20.05.2009.

13.The ingredients of offences under Section 463, 468, 471 and 420 of
I.P.C. are as follows:

?463. Forgery ?Whoever makes any false documents 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.

468. Forgery for purpose of cheating ? Whoever commits forgery,
intending that the document forged shall be used for the purpose of cheating,
shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.

471. Using as genuine a forged document ? Whoever fraudulently or
dishonestly uses as genuine any document which he knows or has reason to
believe to be a forged document, shall be punished in the same manner as if
he had forged such document.

420. Cheating and dishonestly inducing delivery of property ? Whoever
cheats and thereby dishonestly induces the person deceived to deliver any
property to any person, or to make, alter or destroy the whole or any part of
a valuable security, or anything which is signed or sealed, and which is
capable of being converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.?

14.It is relevant to cite the judgment of this Court reported in
2011(1)MWN (Cr.) 128 ? R.Lakshminarayanan V. D.Gurumurthy, wherein this Court
has held as follows:

?11.The only allegation against the petitioners is that they have
hatched a Criminal conspiracy during the year 1999 to defraud the respondent.
In Mohd.Ibrahim V. State of Biharm 2009(3) SCC (Crl.) 929, the Supreme Court
has dealt in detail on the provisions of Sections 467, 471 and 420 of IPC,
the Apex Court has held as follows:

?16.here 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. ?

Further, in the decision reported in (2011) 2 MLJ (Crl.) 365 (SC) ?
V.P.Shrivastava V. Indian Explosives Ltd., the Apex Court has held as
follows:

?34.In the instant case, there is nothing in the complaint which may
even suggest remotely that the IEL had entrusted any property to the
appellants or that the appellants had dominion over any of the properties of
the IEL, which they dishonestly converted to their own use so as to satisfy
the ingredients of Section 405 of the IPC, punishable under Section 406 IPC.

35.Having come to the conclusion that no prima facie case had been made
out against the appellants in respect of the alleged offences under Sections
420 and 406 IPC, the question of alleged conspiracy between the appellants
does not arise. Nevertheless, in order to bring home the charge of conspiracy
within the ambit of Section 120B of the IPC, it is necessary to establish
that there was an agreement between the appellants for doing an unlawful act.
The complaint lacks any such substance.?

Further, in the decision reported in (2010) 1 MLJ (Crl.) 1095 (SC) ? Devendra
V. State of U.P., the Hon’ble Apex Court has held as follows:

?15.`Cheating’ has been defined in Section 415 of the Indian Penal Code
to mean:

“Cheating– Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally induces
the person so 9 deceived to do or omit to do anything which he would not do
or omit if he were not so deceived, and which act or omission causes or is
likely to cause damage or harm to that person in body, mind, reputation or
property, is said to `cheat’.”

16.In V.Y. Jose v. State of Gujarat and Anr. [(2009) 3 SCC 78], this
Court opined:

“14.An offence of cheating cannot be said to have been made out unless the
following ingredients are satisfied:

i) deception of a person either by making a false or misleading
representation or by other action or omission;

(ii) fraudulently or dishonestly inducing any person to deliver any property;
or to consent that any person shall retain any property and finally
intentionally inducing that person to do or omit to do anything which he
would not do or omit.

For the purpose of constituting an offence of cheating, the complainant is
required to show that the accused had fraudulent or dishonest intention at
the time of making promise or representation. Even in a case where
allegations are made in regard to failure on the part of the accused to keep
his promise, in absence of a culpable intention at the time of making initial
promise being absent, no offence under Section 420 of the Indian Penal Code
can be said to have been made out.”

10 It is, therefore, evident that a misrepresentation from the very beginning
is a sine qua non for constitution of an offence of cheating, although in
some cases, an intention to cheat may develop at a later stage of formation
of the contract.

17.In Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr.[(2000)
4 SCC 168], this Court held:

“14. On a reading of the section it is manifest that in the definition there
are set forth two separate classes of acts which the person deceived may be
induced to do. In the first place he may be induced fraudulently or
dishonestly to deliver any property to any person. The second class of acts
set forth in the section is the doing or omitting to do anything which the
person deceived would not do or omit to do if he were not so deceived. In the
first class of cases the inducing must be fraudulent or dishonest. In the
second class of acts, the inducing must be intentional but not fraudulent or
dishonest.

15. In determining the question it has to be kept in mind that the
distinction between mere breach of contract and the offence of cheating is a
fine one. It depends upon the intention of the accused at the time to
inducement which may be judged by his subsequent conduct but for this
subsequent conduct is not the sole test. Mere breach of contract cannot give
rise to criminal prosecution for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the transaction, that is the
time when the offence is said to have been committed. Therefore it is the
intention which is the gist of the offence. To hold a person guilty of
cheating it is necessary to show 11 that he had fraudulent or dishonest
intention at the time of making the promise. From his mere failure to keep up
promise subsequently such a culpable intention right at the beginning, that
is, when he made the promise cannot be presumed.”

[See also Indian Oil Corporation v. NEPC India Ltd. and Ors. (2006) 6 SCC
736, Veer Prakash Sharma v. Anil Kumar Agarwal and Anr. 2007 (9) SCALE 502,
V.Y. Jose (supra) and Ravindra Kumar Madhanlal Goenka Anr. v. M/s. Rugmini
Ram Raghav Spinners Anr. 2009 (6) SCALE 162] 23.

18.Section 463 of the Indian Penal Code reads as under:
“463. Forgery – Whoever makes any false documents or false electronic
record or part of a document or electronic 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 intent to commit fraud or that fraud may be
committed, commits forgery.”

According to Mr. Das, making of a false document so as to support any claim
over title would constitute forgery within the meaning of the said provision
and as a document was created for the purpose of showing one- third share in
the joint property by the appellants although they were not entitled to
therefor, they must be held to have committed an offence.

19.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.

20. to 26. …………….

27. Mr. Das submits that a wrong committed on the part of a person may be a
civil wrong or a criminal wrong although an act of omission or commission on
the part of a person may give rise to both civil action and criminal action.
A distinction must be made between a civil wrong and a criminal wrong. When
dispute between the parties constitute only a civil wrong and not a criminal
wrong, the courts would not permit a person to be harassed although no case
for taking cognizance of the offence has been made out.

28.Furthermore, in a case of this nature where even, according to Mr. Das, no
case has been made out for taking cognizance of an offence under Section 420
of the Indian Penal Code, it was obligatory on the part of the learned Chief
Judicial Magistrate to apply his mind to the contents of the chargesheet.
Such application of mind on his part should have been reflected from the
order. [See State of Karnataka and Anr. v. Pastor P. Raju (2006) 6 SCC 728
and Pawan Kumar Sharma v. State of Uttaranchal, Criminal Appeal No. 1692 of
2007 decided on 10th December, 2007].

29.We, however, must place on record that we have not entered into the merit
of the dispute as the civil suit is pending. The same has to be determined in
accordance with law. We would request the court concerned to consider the
desirability of the disposing of civil suit as expeditiously as possible.
The appeal is allowed with the aforementioned directions.?
Further, the Hon’ble Apex Court in the judgment reported in (2010) 1 MLJ
(Crl) 840(SC), has held as follows:

?18. The last offence which is alleged against the appellant is Section
471 IPC. This section is not applicable in the case of the appellant for the
simple reason that we have already found that there was no dishonest
intention on the part of the appellant nor had she acted fraudulently. This
Section applies only in case of the use of a forged document as a genuine
document. Since we have found that there is no element of forgery at all,
there would be no question of there being any valid allegation against the
appellant.?

15.It is seen from the above, the ingredients of any of the offence as
alleged by the prosecution would not made against the petitioner. For the
purpose of constituting an offence of cheating, the complainant is required
to show that the accused had fraudulent or dishonest intention at the time of
making promise or representation. In the absence of such culpable intention,
no offence under Section 420 of the Indian Penal Code been made out against
the petitioner. Insofar as the allegation of forgery, the petitioner
admittedly did not commit any forgery on his purchase. While making of a
false document so as to support any claim over title would constitute
forgery. What would amount to making of a false document is specified in
Section 464 of I.P.C., to execute a document with the intention of causing it
to be believed that such document interalia was made by the authority of a
person by whom or by whose authority he knows that it was not made.

16.Reading of the above would show that no ingredients of the said
offences would attract against the petitioners and no offence made out
against them. Further, the offence under Section 120(B) of I.P.C. is only
conspiracy. As stated in earlier paragraphs, there is absolutely no plan
among the petitioners to do the said crime. Since, the second accused was
admittedly retired from service even in the year 1996 and the first accused
joined in the said post only on 07.07.2011. Therefore, no offences are made
out against the petitioners and the first information in crime No.17 of 2012
on the file of the first respondent police is liable to be quashed.

17.In view of the above, these criminal original petitions are allowed
and the first information in crime No.17 of 2012 on the file of the first
respondent police registered against the petitioners is quashed.
Consequently, connected miscellaneous petitions are closed.

To

1.The Inspector of Police,
District Crime Branch,
Karur.

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

.

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