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Judgment
R.S. Ramanathan, J.—This petition is filed to quash the proceedings in C.C. No. 159 of 2009, on the file of the learned Judicial Magistrate No. 2, Dindigul.
It is submitted by the Learned Counsel appearing for the Petitioners that the Petitioners were charge sheeted for offences under Sections 120(b), 465, 468, 471, 477 & 420 r/w 109 of Indian Penal Code.
It is further submitted that the case of the prosecution was that the 2nd Respondent purchased the property in Survey No. 65, having an extent of 10 cents from the Accused 1 to 11, who are the Petitioners 1 to 11 herein and after selling the said property, the Petitioners 1 to 11 have executed a power in respect of that property also along-with other properties in favour of the 12th Accused viz., the 12th Petitioner herein and attempted to sell the property, which was sold to the 2nd Respondent. Therefore, the case was charge sheeted against the Petitioners for the aforesaid offences.
The Learned Counsel appearing for the Petitioners submitted that due to mistake and inadvertence, the property which was sold to the 2nd Respondent was included in the power executed by the Petitioners 1 to 11 in favour of 12th Petitioner and having realized the same, the Petitioners 1 to 11 also executed a rectification deed and deleting the said property from the power, already executed by them and thereafter, they also cancelled the original power, executed by the Petitioners 1 to 11 in favour of the 12th Petitioner and executed a fresh power in respect of other properties excluding the property sold to 2nd Respondent and this fact would prove that there was no criminal intention on the part of the Petitioners in committing the offences stated in the charge sheet.
He further submitted that even according to the statement of witnesses, no offence is made out under Sections 120(b), 465, 648, 471, 477 and 420 r/w 109 Indian Penal Code, as it is not the case of the 2nd Respondent that acting on the power executed by the Petitioners 1 to 11, the 12th Petitioner attempted to sell the property by making false representation or any person acting on the representation made by the 12th Petitioner, purchased that property from them.
It is only stated in the complaint given by the 2nd Respondent as well as in the statement given by the witnesses that the property was already sold to the 2nd Respondent by the father of the Petitioners 1 to 11 and acting on the power given by the Petitioners 1 to 11, the 12th Petitioner was attempting to sell the property and having realized that the Petitioners 1 to 11 have no right over the property and the property was already sold to the 2nd Respondent, the witnesses did not proceed further in purchasing the property. He, therefore, submitted that having regard to the essential ingredients of Section 420 and 464 of Indian Penal Code, no offence of cheating or forgery has committed by the Petitioners and therefore, the charges are liable to be quashed.
He further relied upon the judgment reported in (2009) 3 SCC (Cri) 929 in the case of Mohammed Ibrahim and Ors. v. State of Bihar and Anr., in support of his contention, wherein the Hon''ble Supreme Court has dealt with the provision 464 Indian Penal Code and held that when a person has not stated that the document was executed by one person and in fact, the document was not executed by that person, there is no question of creating or making a false document and in this case, it cannot be stated that the Petitioners have created any false document by stating that the document was executed by some other person, which in fact, was not executed by them.
Heard the learned Government Advocate (criminal side) appearing for the 1st Respondent and the learned Government Advocate (criminal side) submitted that having regard to the statement of witnesses, the prosecution has rightly charge sheeted the Petitioners, for having committed the offences stated above and the witnesses have clearly stated that the property in Survey No. 65, of an extent of 10 cents, was already sold to the 2nd Respondent by the father of the Petitioners 1 to 11 and knowing fully well, that the property was sold, they executed power in favour of the 12th Petitioner and thus, they have cheated the public and also forged the document and hence, the petition is liable to be dismissed.
Mr. R. Anand, the Learned Counsel appearing for the 2nd Respondent submitted that having admitted that the property was already sold by the father of the Petitioners 1 to 11, the very act of executing the power in favour of the 12th Petitioner, by including the same property along with other property, would prove the criminal intention on the part of the Petitioners, in cheating the public as well as the 2nd Respondent and by reason of the act of the Petitioners 1 to 11, the 2nd Respondent might have been deprived of his property and therefore, the Petitioners have committed the offence of cheating.
He further submitted that on the basis of the power executed by the Petitioners 1 to 11, the 12th Petitioner gave a complaint before the Kodaikanal Police against the 2nd Respondent and Ors. for having committed the offences under Sections 420, 406, 465, 467, 468, 471, 474 and 120(b) of Indian Penal Code and a case also charge sheeted in CC No. 120 of 2008.
Mr.R. Anand, the Learned Counsel for the 2nd Respondent further submitted that not only they have fraudulently included the Survey No. 65 in the power given in favour of the 12th Petitioner, they also gave a complaint against the 2nd Respondent and Ors. on the basis of the said power and therefore, the Petitioners have committed the offences and they were rightly charge sheeted for the aforesaid offences.
He further submitted that even assuming that no offence or cheating or forgery has been committed by the Petitioners, without admitting the same, having regard to the fact that the Petitioners 1 to 11 executed a power in favour of the 12th Petitioner, by including the property, which was already sold to the 2nd Respondent, they have attempted to commit the offence of cheating and forgery and therefore, they are liable to be punishable u/s 511 of Indian Penal Code.
In support of his contention, he relied upon the judgment reported in G.S. Bansal Vs. The Delhi Administration, and Sudhir Kumar Mukherjee and Sham Lal Shaw Vs. State of West Bengal, .
The Learned Counsel appearing for the Petitioners submitted that in respect of the complaint given by the 12th Petitioner against the 2nd Respondent and Ors. in crime No. 342 of 2007, which ended in laying a charge sheet, in CC No. 120 of 2008, the allegations were in respect of other surveys Nos. 67/1 and 70, which admittedly, belonged to the Petitioners 1 to 11 and no complaint has been given against the 2nd Respondent and Ors. in respect of Survey No. 65 and he also produced the charge sheet filed in C.C. No. 120 of 2008 for the perusal of this Court.
Heard both sides.
In this case, having regard to the submission made by the learned counsel appearing for the parties, we will have to see whether any offence has been committed as stated in the charge sheet.
Section 415 Indian Penal Code defines ''cheating'' and it is as follows:
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 deceived to do or mot 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.
As per the above-said offence, there must be a fraudulent or dishonest inducement by one person to another person and the other person to whom the fraudulent representation or dishonestly inducement was made, must have been deceived to deliver any property or to retain any property or to do or omit to do anything, which he would not omit or omit if he were so deceived.
In this case, admittedly there was no representation by the 12th Petitioner to any person stating that he has got power to sell the property in survey No. 65, which was already sold to the 2nd Respondent and no-body has acted on the representation made by the 12th Petitioner. The only allegation made in the statement of witnesses was that it was represented by the 12th Petitioner that he has got power to sell the property and on verification, it was found that the property belongs to the 2nd Respondent. Therefore, the person to whom representation was made, was not deceived nor made to deliver any property nor made to part with money pursuant to the representation made by the 12th Petitioner, except, the representation of the 12th Petitioner to some of the witnesses that he has got power to sell the property, further act has been done by the person to whom representation was made and therefore, the essential ingredients of Section 415 Indian Penal Code for offence of cheating is conspicuously absent and therefore, no offence u/s 415 of Indian Penal Code is made out.
We will have to see whether the Petitioners have committed any offence u/s 463 Indian Penal Code.
As per Section 463 Indian Penal Code, whoever makes any false documents 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 any property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464 Indian Penal Code deals with making a false document. Therefore, unless a person is said to have made a false document as stated u/s 464 Indian Penal Code, he could not be charged for the offence of forgery under 463 Indian Penal Code.
Section 464 Indian Penal Code, has been analyzed by the Hon''ble Supreme court in the judgment reported in (2009) 3 SCC (Cri) 929 in the case of Mohameed Ibrahim and Ors. v. State of Bihar and Anr., held as follows:
An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
The second is where a person dishonestly or fraudulently, by cancellation of otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; of (b) intoxication'' or (c) deception practiced upon him, know the contents of the document or the nature of the alternation.
In short, a person is said to have made a ''false document'', if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
According to me, the only allegation made against the Petitioners is that they have executed a power deed in favour of 12th Petitioner, including the property that was sold to the 2nd Respondent, they have not stated in the power that the power was executed by the 2nd Respondent to make it appear that it was a document executed by the 2nd Respondent. What they have done is that they executed power in favour of the 12th Petitioner stating that it is their property and they are giving power in respect of that property to the 12th Petitioner. The property might have been sold by the father of the Petitioners 1 to 11 to the 2nd Respondent and the Petitioners 1 to 12 was also aware of the same. But the question is by executing a document stating that it is their property and authorizing the 12th Petitioner to deal with the property, can it be stated that they have made a false document as per Section 464 Indian Penal Code. The answer is ''No''.
Further, in the same judgment the Hon''ble Supreme Court has also dealt with the offence of cheating in para 18 and 19:
Let us now examine whether the ingredients of an offences of cheating are made out. The essential ingredients of the offence of ''cheating'' are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other actor omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
To constitute an offence u/s 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived.
(i)to deliver any property to any person, or
(ii)to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into available security).
Therefore, when there is no offence of cheating and forgery, no charge can be framed against the Petitioners for offences under Sections 468, 471, 477 & 420 r/w 109 Indian Penal Code
It is submitted by the Learned Counsel appearing for the 2nd Respondent that the Petitioners by executing a power deed have attempted to commit an offence of cheating and therefore, they can be prosecuted u/s 511 Indian Penal Code. He also attempted to make a distinction between the preparations to commit an offence and attempted to commit an offence.
According to the Learned Counsel appearing for 2nd Respondent, the Petitioners 1 to 11 executed the power document in favour of the 12th Petitioner by including the property, which was sold to the 2nd Respondent, the Petitioners 1 to 11 have clearly attempted to cheat the public and therefore, they are liable to be prosecuted for offence u/s 511 Indian Penal Code.
A reading of Section 511 Indian Penal Code will make it clear that the attempt must be to commit an offence and when there is no offence of cheating or forgery committed by the Petitioners as stated supra, there is no question of attempting to commit an offence by the Petitioners.
Hence, I am not in a position to accept the argument of the Learned Counsel appearing for the 2nd Respondent and in my opinion, the Petitioners cannot be said to have attempted to commit an offence. At the most, in my opinion, they may have taken some steps or were preparing to commit an offence and as per the provision of Indian Penal Code, preparation to commit an offence, except under certain circumstance, will not amount to an offence and definitely, in the light of the facts of the case, the preparation in this case will not amount to an offence.
It is further submitted by the Learned Counsel appearing for the Petitioners that after the mistake was found, they have also executed a rectification deed and also cancelled the original power executed by the Petitioners 1 to 11 in favour of the 12th Petitioner in respect of the other properties, including the property that was sold to the 2nd Respondent and they have also produced encumbrance certificate to the effect that no document was executed either by the Petitioners 1 to 11 or by the 12th Petitioner in respect of property, that was sold to the 2nd Respondent and in my view, that also proved the bona-fide claim of the Petitioner and that would also prove that they have no intention of cheating anybody much-less the 2nd Respondent in depriving his property.
Therefore, in my opinion, the charges levelled against the Petitioners cannot be sustained and therefore, the charge levelled against the Petitioners in CC No. 159 of 2009, on the file of the learned Judicial Magistrate No. 2, Dindigul, is quashed and the petition is allowed.
In the result, the petition is allowed. Consequently, connected Miscellaneous Petitions are closed.