Krishna Kant Dubey vs State Of Jharkhand And Others

Gautam Kumar Choudhary, J

Instant petition is filed for quashing the order taking cognizance dated 22.11.2021 under Sections 420, 406, 504, 34 of the Indian Penal Code in Ramkanda P.S. Case No.52 of 2019 corresponding to G.R. No.2429 of 2021 pending in the Court of Judicial Magistrate, 1st Class, Garhwa.

The complaint filed by one Jhalwa Kunwar is the basis of the present police case. The main allegation of the complainant is that the complainant is widow lady and after death of her husband, accused no.1 was looking after the property. It is alleged that accused no.1 who happens to be brother of her husband, sold the land which fall in the share of her husband. The petitioner is authorized signatory and Vice President of M/s Rameshwara Jute Mill Limited. After investigation, charge sheet has been submitted. Aggrieved by the order, instant petition has been filed.

It is submitted by learned counsel on behalf of petitioner that on the basis of averments made in the complaint, no offence under Sections 420 and 406 of the Indian Penal Code will be made out. Neither the Company has been made accused nor the case has been filed by the purchaser. In view of ratio laid down by Hon’ble Supreme Court in Mohammed Ibrahim & Others Vs. State of Bihar & Another, (2009) 8 SCC 751, even if it is assumed that he was real owner, the offence will not be made out. Only the purchaser can be said to be aggrieved by the said sale which has been executed without any title.

Learned A.P.P. has opposed the quashing petition. It is submitted by learned counsel that there is no infirmity in the impugned order as the cognizance has been taken on the basis of the materials available in the case diary. The petitioner is purchaser whereas the said sale has been made by the brother in law of the complainant.

Even if it is assumed that the vendor had insufficient title or no title at all, the prosecution of the purchaser is not tenable in view of law laid down by Hon’ble Supreme Court in Mohammed Ibrahim & Others (supra) wherein it has been held:-

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.

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.

When a sale deed is executed conveying a property claiming ownership 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.

(emphasis supplied)

On the averments as made in the complaint, the offences are not made out and the criminal prosecution will be a futile exercise and abuse of process of Court.

The impugned order as well as the entire criminal proceeding, is quashed as far as the petitioner is concerned.

Criminal Miscellaneous Petition is allowed.