BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 04.09.2018

Reserved on : 21.08.2018

Pronounced on : 04.09.2018

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.(MD).No.5776 of 2011
and
M.P(MD).No.2 of 2011

S.S.Janagarajan ..Petitioner
Vs.

1.The State of Tamil Nadu
rep. by the Inspector of Police,
District Crime Branch,
Tirunelveli District
Crime No.12 of 2007

2.P.Dhanraj ..Respondents
PRAYER: This Criminal Original Petition has been filed under Section 482 of
Criminal Procedure Code, to call for the records in C.C.No.541 of 2010
pending before Judicial Magistrate No.1, Tirunelveli and quash the same
insofar as the petitioner is concerned.

For Petitioner :Mr.M.Ravi

For Respondents :Mr.V.Neelakandan, APP for R1
Mr.T.Antony Arulraj for R2

:ORDER

This quash petition is filed to quash the criminal proceedings in
C.C.No.541 of 2010 pending on the file of the learned Judicial Magistrate
No.1, Tirunelveli.

2.The second respondent lodged a complaint alleging that he is the
absolute owner of the property in S.No.405/1 admeasuring 8 acres and 2 cents
and in S.No.404/2 admeasuring 22.30 acres. He claims that he had purchased
the same by the sale deed dated 01.07.1994 registered as Document No.909/94
from one Rahim and Pitchaikani, who have purchased the said property from two
sale deeds registered as Document No.239/93 dated 31.03.1993 and Document
No.425/1993 dated 24.02.1993. Insofar as the property comprised in
S.No.402/2 is concerned is made against A1, who has executed the sale deed in
Document No.945/1997 on 24.09.1997 in favour of A2, A16 and A17. Those sale
deeds are fabricated by committing forgery and impersonation. Further, he
alleged that A1 has no right or title over the property to make unlawful
gain, he executed sale deed in favour of A2, A16 and A17. Thereafter, A6
posed himself as the son of the defacto complainant and impersonating him,
executed a power deed and registered Document No.89/2004 dated 03.05.2004, in
respect of the property comprised in S.No.405/1 admeasuring 08.03 acres as
his ancestral property in favour of A7 to deal with the property. In turn,
A7 executed the sale deed dated 14.05.2004 in favour of A11 and registered
the sale deed as Document No.592/2004. A11 is a broker, who used to sale
properties to M/s.Sarjan Realities (P) Limited. A6, A7 and A11 have all
acted in collusion with a view to get money from M/s.Sarjan Realities (P)
Limited. In turn, the said M/s.Sarjan Realities (P) Limited, through their
power of attorney viz., Narendra Savalia, who is arraigned as A10 sold out
the property comprised in S.No.405/1 admeasuring 2 acres situated at
Palabathiraramapuram village, Uthumalai Taluk, Tirunelveli District to the
petitioner herein, who is arraigned as A15. Further, he alleged that the
said M/s.Sarjan Realities (P) Limited is the sister concern of M/s.Suzlon
Energy Limited, which is dealing with supply and erection of Wind Electricity
Generators. Thereafter, without any title or rights over the property, the
entire property has been sold out with the intention to cheat the complainant
and grab the entire land. They also jointly conspired together forged and
fabricated various deeds by impersonating the complainant. Hence, the
complainant.

3.There are totally 18 accused, in which, the petitioner is arraigned
as A15. On receipt of the complaint, the first respondent registered the
case in crime No.12 of 2007 for the offence under Sections 465, 467, 468,
471, 420 and 120(B) of I.P.C. After completion of investigation, the first
respondent filed charge sheet before the learned Judicial Magistrate No.1,
Tirunelveli and the same has been taken cognizance for the offences stated
above in C.C.No.541 of 2010. The said proceedings is under challenge in this
quash petition by the petitioner/A15.

4.The learned counsel appearing for the petitioner would submit that
the petitioner claimed that he is only the bonafide purchaser, purchased the
land from the vendor for valid and proper consideration and he is no way
connected with forgery and fabrication of documents as alleged by the
complainant. Insofar as the petitioner is concerned, he purchased the land
admeasuring 2 acres comprised in S.No.405/1 situated at Palabathiraramapuram
village, Uthumalai Taluk, Tirunelveli District and the same is registered as
Document No.1046/4 on 19.07.2004 registered in the office of Sub Registrar,
Uthumalai. Hence, he has left with no other efficacious alternative remedy,
he is constrained to invoke the inherent jurisdiction of this Court under
Section 482 of Cr.P.C. to quash the entire criminal proceedings as against
him taken cognizance in C.C.No.540 of 2010 on the file of the learned
Judicial Magistrate No.1, Tirunelveli, on the following grounds:

(i)the petitioner is a bonafide purchaser and he is no way connected
with the alleged fabrication of documents as alleged in the complaint.

(ii)the petitioner is arraigned as A15 and even as per the complaint,
he purchased the said property from A10 for valid sale consideration. If at
all any grievance over the sale of properties, the complainant can very well
approach the civil Court to set aside the subsequent sale proceedings.

(iii)the entire allegations are civil in nature and wantonly, the
complainant has given the colour of criminal proceedings as against the
petitioner.

(iv)in fact, the defacto complainant also instituted civil suits
claiming declaratory and other relief before the civil Court and as such, the
remedy lies within the jurisdiction of civil Court and as such, as far as the
petitioner is concerned, he has nothing to do with the above allegations.

(v)except the allegation that all the accused conspired together and
with intention to grab the entire property from the complainant, all the
accused conspired together and forged and fabricated the documents and
impersonated the complainant and executed the sale deed, no other specific
allegation or overt act against the petitioner.

(vi)Even from seeing the 161 (3) of Cr.P.C. statements, no piece of
evidence or material to connect this petitioner in the said crime.

5.The learned counsel appearing for the petitioner further stated that
the basic ingredients of the offence of cheating itself is not made out as
against the petitioner. The motive, deception at the stage of inception of
the transaction and intention let alone criminal intention to defraud are
absolutely absent. Therefore, no offence is made out as against the
petitioner. The entire criminal proceedings against this petitioner is
nothing but abuse of process of law. Further, even according to the
complainant, the petitioner has not created any document or forged any of
signature or impersonated any of the person to execute the document in his
favour and hence, prayed for quashing the entire criminal proceedings against
the petitioner.

6.The learned Additional Public Prosecutor appearing for the first
respondent would contend that clinching evidence and materials to connect the
petitioner are very much available. The grounds raised by the petitioner are
disputed questions of fact and therefore, it has to be gone into by full
fledged trial and at this stage, it cannot be quashed and prayed for
dismissal of the quash petition.

7.The learned counsel appearing for the second respondent/defacto
complainant would contend that the defacto complainant is the absolute owner
of the property comprised in S.No.405/1 admeasuring 8 acres and 2 cents and
he purchased the said property on 01.07.1994 from one Rahim and one
Pitchaikani through the document No.501/94. Thereafter, the first accused
without any right or title in his favour committing forgery, fabrication and
impersonating the complainant, executed the power of attorney and in turn,
executed various sale deeds. The petitioner is arraigned as A15, who is none
other than M/s.Suzlon Energy Limited, which is a sister concern of M/s.Sarjan
Realities (P) Limited. They all know very well about the conspiracy and only
to cheat the defacto complainant with dishonest intention, they created sale
deed in their favour. Further he contended that all the allegations can be
revealed out from the documents and as such, it cannot be quashed at this
stage and the charges can be proved only through the full fledged trial.
Hence, he prayed for dismissal of the quash application.

8.Heard the learned counsel appearing for the petitioner and the
learned Additional Public Prosecutor appearing for the first respondent and
the learned counsel appearing for the second respondent.

9.The specific case of the respondent/defacto complainant is that the
defacto complainant is the absolute owner of the property in S.No.405/1
admeasuring 8 acres and 2 cents and he claims that he had purchased the same
by the sale deed dated 01.07.1994 registered as Document No.909/94 from one
Rahim and Pitchaikani and as Document No.239/93 dated 31.03.1993 and Document
No.425/1993 dated 24.02.1993. Thereafter, A6 posed himself as the son of
the defacto complainant and impersonating him, executed a power deed and
registered Document No.89/2004 dated 03.05.2004, in respect of the property
comprised in S.No.405/1 admeasuring 08.03 acres as his ancestral property in
favour of A7 to deal with the property. Whereas, one M/s.Sarjan Realities
(P) Limited, through their power of attorney viz., Narendra Savalia, who is
arraigned as A10 sold out the property comprised in S.No.405/1 admeasuring 2
acres situated at Palabathiraramapuram village, Uthumalai Taluk, Tirunelveli
District to the petitioner herein, who is arraigned as A15. The accused
persons also jointly conspired together forged and fabricated various deeds
by impersonating the complainant.

10.Whereas, according to the petitioner, he purchased the property
comprised in S.No.405/1 admeasuring 2 acres through the sale deed dated
19.07.2004 as Document No.1046/2004 for valid consideration from one
Shri.Narendra Savalia, who is the power agent of Mrs.Sarjan Realities (P)
Limited,who is arraigned as A10. After purchase, the petitioner is the
absolute possession of enjoyment of the property from the date of purchase.
Further, at the time of purchase, the petitioner verified the title and legal
opinion by encumbrance certificate and he claimed that he has bonafidely
purchased the said property for valid consideration.

11.As per the complaint, the only allegation as against the petitioner
is that he also conspired with other accused and fabricated and forged the
signature of the complainant and also impersonated the complainant and
executed the sale deed in his favour. It is seen from the records that the
petitioner purchased the property from A10 for valid consideration. He did
not forge any of the signature and he did not fabricate any of the documents
in his favour. He purchased the said property vide sale deed dated
19.07.2004 and registered as Document No.1046/2004. Further, he also did
not impersonate any one to execute the sale deed. Further the only
allegation is that conspiracy with other accused persons. It is seen from
the records that the alleged impersonation of defacto complainant has been
committed and the sale deeds were executed in the year 1997, whereas, the
petitioner purchased the property only in the year 2004 and as such, there is
absolutely no chance for the petitioner for conspiracy with A1 and A2 to
impersonate the defacto complainant for execution of the power of attorney
deed and subsequent sale deeds.

12.In this regard, the learned counsel appearing for the petitioner
relies upon 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. ?

He further rely upon the judgment of the Hon’ble Supreme Court reported in
(2011) 2 MLJ (Crl.) 365 (SC) ? V.P.Shrivastava V. Indian Explosives Ltd.,
wherein, 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.?

He would further rely on the judgment of the Hon’ble Supreme Court reported
in (2010) 1 MLJ (Crl.) 1095 (SC) ? Devendra V. State of U.P., wherein, 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.?
He would also rely on the decision of the Hon’ble Apex Court reported in
(2010) 1 MLJ (Crl) 840(SC), the Apex Court 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.?

13.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.

14.Here, the petitioner is a bonafide purchaser and his vendor executed
sale deed in his favour. Further, the execution of sale deed is also not
denied and there is no falsification of any documents to attract the offence
under Section 465 of I.P.C. Admittedly, the petitioner has come into the
picture only in the year 2004 by their sale deed from A10. Therefore, even
on the basis of the records, there is no offence made out against the
petitioner.

15.In the result, this criminal original petition is allowed and
proceedings in C.C.No.541 of 2010 pending before Judicial Magistrate No.1,
Tirunelveli is quashed against the petitioner alone. Consequently, connected
miscellaneous petition is closed.

To

1.Inspector of Police,
District Crime Branch,
Tirunelveli District.

2.The Judicial Magistrate No.1,
Tirunelveli.

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

.