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Judgment
Hon'Ble Sandeep Jain, J.
Supplementary affidavit has been filed on behalf of the applicants, which is taken on record.
The instant application under Section 482 Cr.P.C. has been filed to set aside/quash the Charge Sheet No.02 of 2017 dated 14.07.2017 as well as cognizance order dated 27.07.2017 and criminal proceeding of Case No. 10839 of 2017 (State of U.P. Vs. Maya Sharma) arising out of Case Crime No.208 of 2015, under Section 419, 420, 467, 468, 471 I.P.C., Police Station Cantt., District Varanasi, pending in the Court of Chief Judicial Magistrate, Varanasi.
The factual matrix, in brief, is that respondent no.2, Prashant Sharma, submitted an application before the Senior Superintendent of Police, Varanasi, alleging that he had purchased, through registered sale deed dated 12.12.2014, the disputed house forming part of S-16/38, admeasuring 1154.4 square feet, i.e. 107.24 square metres, which is situated at Mohalla Lachipura, Ward Sikraul, Tehsil Sadar, District Varanasi. It was further alleged that the accused-applicants, namely, Maya Sharma, Rajesh Kumar Sharma and Gagan Kumar Sharma, in collusion and connivance with each other, fraudulently created a trust in respect of the aforesaid property on 27.08.2009, which was subsequently registered. It was alleged that, in the said trust deed, the aforesaid persons falsely represented themselves to be the owners of house No. S-16/38. It was further alleged that, fraudulently, the office of the trust was shown to be situated in the aforesaid disputed premises, despite the fact that the aforesaid persons were well aware that the disputed house belonged to Suresh Chandra Sharma, Dinesh Chandra Sharma, Surendra Chandra Sharma, Rajesh Sharma, Naresh Sharma and Rupesh Sharma. It was alleged that Maya Sharma, Rajesh Kumar Sharma and Gagan Kumar Sharma thereby constituted a fraudulent trust, which came to the knowledge of the first informant during the pendency of Original Suit No. 1491 of 2013(Dhiraj Kumar Sharma and another vs. Avinash Chandra Sharma and others), wherein Gagan Kumar Sharma produced the said document with a fraudulent intent as Paper No. 18-C. On the basis of the aforesaid complaint, an FIR was registered on 22.04.2015 as Case Crime No.208 of 2015, under Sections 120-B, 419, 420, 467 and 468 IPC, at Police Station Cantt., District Varanasi, in which a final report was submitted on the ground that no evidence was found against the accused. Thereafter, the matter was further investigated on the direction of the higher police officials, who found the earlier investigation to be defective. Consequently, the investigation was entrusted to another Investigating Officer, who found that the involvement of Rajesh Kumar Sharma and Gagan Kumar Sharma was not established. The offence under Section 120-B IPC was also deleted. Ultimately, a charge-sheet was submitted against the accused-applicant, Maya Sharma, under Sections 419, 420, 467, 468 and 471 IPC, alleging that she had fraudulently got the trust deed in respect of Jagrati Trust prepared by representing herself to be the owner of the disputed property. The said charge-sheet has been challenged by the accused-applicant in the present proceedings.
Learned counsel for the accused-applicant submitted that the disputed property, i.e. S-16/38, along with properties bearing Nos.S-16/36 and S-16/37, situated at Mohalla Lachipura, District Varanasi, was ancestral property. In respect thereof, a suit for permanent injunction, being Original Suit No.504 of 2003, was instituted by the accused-applicant along with Dhiraj Kumar Sharma, Gagan Kumar Sharma and Smt. Sujata against private respondent no.3 and other family members, in which, a compromise was ultimately reached and on the basis of the compromise dated 15.01.2010, the disputed property, i.e. S-16/38, devolved upon Suresh Chandra Sharma, Surendra Chandra Sharma @ Munna, Rajesh, Rupesh, Naresh and Dinesh Chandra Sharma.
Learned counsel further submitted that, prior to the aforesaid compromise, the accused-applicant, being a co-owner of the disputed property, had legal rights and interest therein and, therefore, was competent to create a trust in the said property. The creation of such a trust, therefore, could not be said to be illegal. He further submitted that the trust deed was executed on 26.08.2009 and subsequently registered on 27.08.2009, whereas the compromise in Original Suit No.504 of 2003 was entered into only on 15.01.2010 after the execution of the trust deed. Thus, according to learned counsel, private respondent nos.2 and 3 acquired title in the disputed property only subsequently, and respondent no.2 Prashant Sharma ultimately purchased the same through the sale deed dated 12.12.2014. It is, therefore, submitted that, in view of the aforesaid facts, no offence was prima facie committed by the accused-applicant by executing the trust deed on 26.08.2009.
Per contra, learned counsel appearing for respondent no.2, Prashant Sharma, submitted that respondent no.2 had purchased the disputed property through a registered sale deed dated 12.12.2014 from Suresh Chandra Sharma, Surendra Chandra Sharma @ Munna, Rajesh, Rupesh, Naresh and Dinesh Chandra Sharma, who had acquired their ownership rights in the property pursuant to the compromise entered into in Original Suit No.504 of 2003. He submitted that even prior to the compromise entered into in the aforesaid suit, the accused-applicant did not have any absolute right or title in the disputed property S-16/38, and, therefore, she could not have created a trust in respect thereof. He further submitted that possession over the disputed property still remains with the accused-applicant, which fact has also been fairly admitted by learned counsel appearing for the accused-applicant. Learned counsel submitted that the accused-applicant has no right, title or interest in the disputed property so as to justify her continued possession thereof, and that her continued possession over the disputed property is, therefore, illegal.
He further submitted that, in view of the aforesaid facts and circumstances, the Investigating Officer has committed no illegality in submitting the charge-sheet against the accused-applicant, which does not warrant any interference by this Court in exercise of its jurisdiction under Section 482 Cr.P.C.
I have heard learned counsel for the parties and perused the record.
The Apex Court in the case of Sheila Sebastian vs. R.Jawaharaj and Another (2018) 7 SCC 581 while interpreting provisions of Section 463 and 464 of the IPC, has held as under:-
“19.A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e. making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
20.The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 IPC. As Collin, J., puts it precisely in Dickins v. Gill [(1896) 2 QB 310 (DC)], a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21.It is observed in Mohd. Ibrahim v. State of Bihar [(2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] that: (SCC p. 756, para 14)
“14.… 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 practising deception, or from a person not in control of his senses.”
22.In Mohd. Ibrahim, this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467 IPC) and using of forged document as genuine (Section 471 IPC). While considering the basic ingredients of both the offences, this Court observed that to attract the offence of forgery as defined under Section 463 IPC depends upon creation of a document as defined under Section 464 IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471 IPC even if title of property did not vest in the executant.
23.The Court in Mohd. Ibrahim observed that: (SCC p. 757, paras 16-17)
“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 bona fide 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.”
24.In Mir Nagvi Askari v. CBI [(2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718] , this Court, after analysing the facts of that case, came to observe as follows: (SCC p. 687, para 164)
“164.A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document.”
25.Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.”
The Apex Court in the case of Vishal Noble Singh vs. State of U.P. and Another 2024 SCC OnLine SC 1680, while elucidating the essential ingredients of the offences punishable under Section 420 and 467 IPC, has held as under:-
“19.In this regard, our attention was drawn to paras 42-44 and 46 of Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259], dealing with Sections 420 and 467IPC, which are extracted hereunder with regard to Section 420IPC, it was observed thus:
“42.On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts 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 need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.
43.We shall now deal with the ingredients of Section 467IPC. …
44.The following ingredients are essential for commission of the offence under Section 467IPC:
1.the document in question so forged;
2.the accused who forged it;
3.the document is one of the kinds enumerated in the aforementioned section.
***
46.The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.”
20.On a careful consideration of the aforementioned judicial dicta, we find that none of the offences alleged against the appellant-accused herein are made out. In fact, we find that the allegations of criminal intent and other allegations against the appellant-accused herein have been made with a mala fide intent and therefore, the judgment of this Court in Bhajan Lal and particularly sub-paras (1), (3), (5) and (7) of para 102, extracted above, squarely apply to the facts of these cases. It is neither expedient nor in the interest of justice to permit the present prosecution to continue.
21.This Court, in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , reasoned that the criminal process cannot be utilised for any oblique purpose and held that while entertaining an application for quashing an FIR at the initial stage, the test to be applied is whether the uncontroverted allegations prima facie establish the offence. This Court also concluded that the court should quash those criminal cases where the chances of an ultimate conviction are bleak and no useful purpose is likely to be served by continuation of a criminal prosecution. The aforesaid observations squarely apply to this case.
22.We find that in recent years the machinery of criminal justice is being misused by certain persons for their vested interests and for achieving their oblique motives and agenda. Courts have therefore to be vigilant against such tendencies and ensure that acts of omission and commission having an adverse impact on the fabric of our society must be nipped in the bud.”
The Apex Court in the case of Mariam Fasihuddin and Another vs. State By Adugodi Police Station and Another (2024) 11 SCC 733 while interpreting the provisions under Section 415,420,468 and 471 IPC, has held as under:-
“21.Section 420IPC provides that 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 valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine. Further, Section 415IPC distinctly defines the term “cheating”. The provision elucidates that an act marked by fraudulent or dishonest intentions will be categorised as “cheating” if it is intended to induce the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, causing damage or harm to that person.
22.It is thus paramount that in order to attract the provisions of Section 420IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence i.e. (i) the deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea or dishonest intention of the accused at the time of making the inducement. There is no gainsaid that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.
23.It is well known that every deceitful act is not unlawful, just as not every unlawful act is deceitful. Some acts may be termed both as unlawful as well as deceitful, and such acts alone will fall within the purview of Section 420IPC. It must also be understood that a statement of fact is deemed “deceitful” when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss.“Cheating” therefore, generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or any part of a valuable security, prompting the induced person to undertake the said act, which they would not have done but for the inducement.
24.The term “property” employed in Section 420IPC has a well-defined connotation. Every species of valuable right or interest that is subject to ownership and has an exchangeable value—is ordinarily understood as “property”. It also describes one's exclusive right to possess, use and dispose of a thing. The Indian Penal Code itself defines the term “movable property” as, “intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth”. Whereas immovable property is generally understood to mean land, benefits arising out of land and things attached or permanently fastened to the earth. *** *** ***
32.The offence of “forgery” under Section 468IPC postulates that whoever commits forgery, intending that the document or electronic 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. Whereas Section 471IPC states that whoever fraudulently or dishonestly uses as genuine any documents which he knows or has reason to believe it to be a forged document, shall be punished in the same manner as if he had forged such document.
33.There are two primary components that need to be fulfilled in order to establish the offence of “forgery”, namely: (i) that the accused has fabricated an instrument; and (ii) it was done with the intention that the forged document would be used for the purpose of cheating. Simply put, the offence of forgery requires the preparation of a false document with the dishonest intention of causing damage or injury.”
The grievance of the private respondents is that the accused applicant Maya Sharma has created a trust deed dated 26.8.2009 in respect of the disputed property S-16/38 situated in Mohalla Lachipura, Ward Sikraul, District Varanasi. According to the private respondents the above disputed property came to the share of Suresh Chandra Sharma, Surendra Chandra Sharma @ Munna, Rajesh, Rupesh, Naresh and Dinesh Chandra Sharma in compromise reached between parties in O.S. No. 504 of 2003 (Dhiraj Kumar Sharma and others vs. Avinash Chandra Sharma and others) vide judgment and order dated 15.1.2010 passed by Addl.Civil Judge(S.D.)Court No.3,Varanasi, in which the accused applicant Maya Sharma was also impleaded as defendant No. 9, which was subsequently purchased by respondent No. 2 Prashant Sharma vide sale deed dated 12.12.2014. It is the case of the private respondents that since the accused applicant was not the owner of disputed property S– 16/38, hence she could not have executed the trust deed regarding the disputed property, which amounts to a fraudulent act on her part.
According to the statement of complainant Prashant Sharma recorded under Section 161 CrPC the accused applicant has fraudulently fabricated the trust deed showing that the registered office of the trust is situated in the disputed property, in order to prevent him from taking possession of the disputed property whereas, the accused applicant was well aware that she was not the sole owner of the disputed property, which belongs to several co-owners. He has further stated that due to the alleged fraudulent trust deed, he has not been able to obtain possession of the disputed property, whereas, he has already got mutated his name as owner in the records of Nagar Nigam Varanasi.
According to the statement of accused applicant Maya Sharma recorded under Section 161 CrPC she operates a trust from the disputed property. Her husband Shiv Kumar was the owner in possession of the disputed property, hence she had mentioned it as the address of the office of the trust. She further stated that the owners of the disputed property had agreed to sell the disputed property to her son Dhiraj Kumar Sharma for a consideration of ₹ 11 lakhs out of which ₹5 lakhs was paid in advance to Suresh Chandra, regarding which a receipt was also issued to her son and the balance sale consideration was to be paid at the time of execution of the sale deed, but Suresh Chandra and others, instead of executing the sale deed in her son's favour, executed it in favour of Prashant Sharma on 12.12.2014 during the pendency of O.S. no. 1491 of 2013, which was filed by her son. She further stated that on the basis of the sale deed Prashant Sharma came to take possession of the disputed property, on which a dispute had arisen between the parties.
The alleged trust deed dated 26.8.2009 is on record, which discloses that the principal trustee is Maya Sharma whereas, Rajesh Kumar Sharma(son-in-law of principal trustee) and Gagan Kumar Sharma(son of principal trustee) are co-trustees. The trust deed mentions the name of the trust as Jagriti Trust, having registered office at S-16/38 Dhausabad, Nadesar, Varanasi. The trust deed mentions that the trust will accept donations of movable and immovable property, which will become the property of the trust. The trust deed nowhere mentions that the above trustee is the owner of the disputed property S-16/38. The trust deed has been registered on 27.8.2009 before the concerned sub-registrar, Varanasi. Merely, because the registered office of the trust is situated in the disputed property it cannot be inferred that the accused applicant has become the owner of the disputed property on the basis of the above trust deed. Prima-facie, the trust deed does not create any right title and interest in the disputed property in favour of the accused applicant, hence it cannot be presumed that by the execution of the above trust deed, the contesting private respondents have been divested of their ownership rights in the disputed property. There is no legal bar that the accused applicant cannot constitute a trust showing the registered office of the trust to be situated in the disputed property.
It is apparent that the accused applicant is in the possession of the disputed property S-16/38, whereas, the private respondents are claiming ownership of it. But, only on the ground that the accused applicant is in the possession of the disputed property, it cannot be inferred that she has done any fraudulent act by constituting Jagriti Trust through registered trust deed dated 26.8.2009. Merely on the basis that the registered office of Jagriti Trust is situated in the disputed property, it cannot be inferred that the alleged trust deed is a fraudulent document. Prima-facie, the execution of trust deed by the accused applicant does not constitute any offence so as to warrant her prosecution under Section 419, 420, 467, 468, 471 IPC.
It is further apparent that there is a dispute between the parties qua the disputed property S-16/38 regarding which O.S.no.1491 of 2013 (Dhiraj Kumar Sharma and another vs. Avinash Chandra Sharma and others) is pending before the competent civil court. The accused applicant claims that an oral agreement to sell was executed in favour of her son Dhiraj Kumar Sharma, for a consideration of ₹11 lakhs, out of which an earnest money of ₹5 lakhs was also paid to Suresh Chandra Sharma, on account of which she is entitled to the ownership and possession of the disputed property, which has been denied by the private respondents.
It is apparent that civil dispute is pending between the parties regarding the disputed property S-16/38 and prima-facie, by executing the trust deed dated 26.8.2009, the accused applicant has not committed any illegality so as to warrant her prosecution under Section 419, 420, 467, 468, 471 IPC.
For the reasons mentioned aforesaid, the instant application under Section 482 CrPC is allowed. Consequently, the proceedings of Case No. 10839 of 2017(State of U.P. vs. Maya Sharma) arising out of Case crime No. 208 of 2015 under Section 419, 420, 467, 468, 471 IPC police Station Cantt. District Varanasi, including the chargesheet No. 2 of 2017 dated 14.7.2017 as well as cognizance order dated 27.7.2017 pending before the Court of Chief Judicial Magistrate, Varansi, including all consequential and incidental proceedings arising to, are hereby quashed.
It is made clear that the trial court in the pending original suit between the parties, will not be influenced by any finding or observation made by this Court in this order and the trial court is at liberty to decide the suit, on merits, in accordance with law.