Bhag Dei @ Bhagwan Dei @APPELLANT@Hash State of Rajasthan & Ors

By this common order SBCRLMP No. 4862/2018 preferred by Bhag Dei alias Bhagwan Dei daughter of Bharosi Lal Jatav and SBCRLMP No.

6067/2017 instituted by Rakesh and Hemant shall be decided together.

In both the petitions, quashing of FIR No. 148/2017 registered at Police Station Bayana, Bharatpur for the offences under Sections 420, 467, 468, 471

and 120B IPC has been prayed for.

This Court on 18.8.2018, while issuing notices, had passed the following order:-

“Counsel for the petitioner has contended that petitioner has sold the land as per her share reflected in the Jamabandi.

Counsel for the petitioner has contended that complainant respondent no.2 is also share-holder of the same land and he has alleged that petitioner sold

the land belonging to his share.

Counsel for the petitioner has contended that neither the land was partitioned nor the area was demarcated.

Counsel for the petitioner has stated at bar that till today investigation is pending.

Issue notice to the respondents for 30.8.2018.

Ms. Meenakshi Pareek, ld. PP, is directed to call the Investigating Officer along with the records of the case.

Copy of this order be handed over to Ms. Meenakshi Pareek, ld. PP, under the seal and signature of the Court Master for onward transmission and

necessary compliance.â€​

In pursuance of the said order, investigating officer is present in the court.

It is admitted fact that Bhag Dei @ Bhagwan Dei and the complainant Saurabh (Sorabh) are co-sharers in the land which has neither been partitioned

nor divided according to the share of the parties.

Saurabh (Sorabh) the complainant, one of the share holder has made a grievance that earlier Bhag Dei @ Bhagwan Dei sold the land in favour of

Pawan Kumar and Vijay Kumar pertaining to different khasra and subsequently sale-deed was executed in favour of Rakesh and Hemant in respect

of different khasra.

Admittedly, in the present case neither Pawan Kumar and Vijay Kumar earlier purchasers nor subsequent purchasers namely Rakesh and Hemant

have made any grievance. Rather, Rakesh and Hemant have been named as co-accused with Bhag Dei @ Bhagwan Dei in the present FIR.

Mr. R.S. Bhardwaj, learned counsel for the petitioner has relied upon Mohammed Ibrahim & Ors. vs. State of Bihar & Anr., (2009) 8 SCC 751, to

contend that the subsequent saledeed executed in no way shall affect the right of the complainant Saurabh (Sorabh) and grievance if any can only be

made by subsequent purchaser who has been allegedly cheated. He has relied upon Para 11 to 16 of the Judgment rendered in Mohammed

Ibrahim’s case (supra) and said Paras read as under:-

“11. 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 authorised 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.

The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore

remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the

land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the

purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case

under the first category.

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 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. 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.

Section 420 IPC

Let us now examine whether the ingredients of an offenceof 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 act or 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 under Section 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 a valuable security).

When a sale deed is executed conveying a property claimingownership thereto, it may be possible for the purchaser under such sale deed, to allege

that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in

this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any

of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they

offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally

induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first

appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing

sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason

of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as

stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.

A clarification

When we say that execution of a sale deed by a person,purporting to convey a property which is not his, as his property, is not making a false

document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a

property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the

purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not

be able to make such complaint. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is ""deliberate deception, treachery or

cheating intended to gain advantage"". Section 17 of the Contract Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla v.

Delhi Administration MANU/SC/0163/1962 : AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus

The expression ""defraud"" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is,

deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind,

reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or

detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived,

the second condition is satisfied.

The above definition was in essence reiterated in State of U.P. v. Ranjit Singh MANU/SC/0130/1999 :1999 (2) SCC 617.

The Penal Code however defines `fraudulently', an adjectiveform of the word `fraud', in Section 25, as follows :

A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise"". The term ""fraudulently"" is mostly used with

the term ""dishonestly"" which is defined in Section 24 as follows :

Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing

dishonestly"". To `defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done

fraudulently (or fraudulently and dishonestly) are made offences. These include:

(i) Fraudulent removal or concealment of property(Section 206, 421, 424)

(ii) Fraudulent claim to property to prevent seizure(Section 207).

(iii) Fraudulent suffering or obtaining a decree (Section208 and 210)

(iv) Fraudulent possession/delivery of counterfeit coin(Section 239, 240, 242 and 243).

(v) Fraudulent alteration/diminishing weight of coin(Section 246 to 253)

(vi) Fraudulent acts relating to stamps (Section 255-261) (vii) Fraudulent use of false instruments/weight/measure (Section 264 to 266)

(viii) Cheating (Section 415 to 420)

(ix) Fraudulent prevention of debt being available tocreditors (Section 422).

(x) Fraudulent execution of deed of transfer containingfalse statement of consideration (Section 423).

(xi) Forgery making or executing a false document(Section 463 to 471 and 474)

(xii) Fraudulent cancellation/destruction of valuablesecurity etc.(Section 477)

(xiii) Fraudulently going through marriage ceremony(Section 496).

It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable

under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.â€​

Mr. Satyapal Poshwal, learned counsel for the complainant/respondent no.2 Saurabh (Sorabh) has submitted that till his share is kept intact, and no

loss is caused to him, he has no interest to pursue the present FIR.

Mr. R.S. Bhardwaj, learned counsel for the petitioner Bhag Dei @ Bhagwan Dei has submitted that the complainant has already filed suit for

declaration (Annexure-6) against the petitioner Bhag Dei @ Bhagwan Dei, wherein she has been arrayed as defendant no.1. Learned counsel for the

petitioner has submitted that Bhag Dei @ Bhagwan Dei petitioner to SBCRLMP No. 4862/2018 shall file a specific undertaking before the court

where the suit for declaration (Annexure-6) is pending, stating therein any sale-deed executed by her in excess of her share will not bind the

complainant Saurabh (Sorabh) and in no way his share in the land shall be affected or reduced because of the saledeeds executed by her.

Mr. Satyapal Poshwal, learned counsel for the complainant/respondent no.2 has submitted that in case such an undertaking is filed and share of the

complainant is not disturbed, he has no objection if the impugned FIR is quashed.

Even otherwise, this Court is of the firm view that any subsequent sale-deed made by the petitioner Bhag Dei @ Bhagwan Dei, can only be in respect

of her share and it will in no way eclipse share of the land of other share holder.

Thus, present petitions are accepted subject to the condition that undertaking in above terms shall be filed by Bhag Dei @ Bhagwan Dei within fifteen

days from today, to the effect that all sale-deeds executed by her will neither affect the right of other share holders in the land nor eclipse their title.

Consequently, the impugned FIR is quashed alongwith all subsequent proceedings.

However, it is ordered that in case such an undertaking is not filed by petitioner Bhag Dei @ Bhagwan Dei in the suit for declaration (Annexure-6 to

SBCRLMP No.6067/2017), the investigating officer shall be at liberty to proceed with the investigation of impugned FIR.

It is further clarified that if other co-accused being co- sharer of the land have sold the land, this order qua them shall only operate subject to the

condition that they shall also volunteer to file undertaking in the Civil Suit in same terms as such undertaking shall be filed by Bhag Dei @ Bhagwan

Dei.