M.K. Gopi and Kunhiprambath Sumangala vs M.K. Vasu and State of Kerala

Thomas P. Joseph, J.—Petitioners are accused in C.C. No. 523 of 2010 of the Court of learned Judicial First Class Magistrate, Kuthuparamba for offences punishable under Sections 420, 448 and 471 read with Section 34 of the Indian Penal Code (for short, "the IPC"). First Respondent preferred a complaint before learned Magistrate alleging commission of offences punishable under Sections 420, 468 and 471 read with Section 34 of the IPC. That complaint was forwarded to the Kuthuparamba police for investigation u/s 156(3) of the Code of Criminal Procedure (for short, "the Code"). Police registered Crime No. 7 of 2005 (Annexure-IV is the FIR) and after investigation submitted Annexure-V, report stating that no offence as alleged is disclosed and that what is involved is only a civil dispute in respect of the properties claimed by the parties. First Respondent preferred protest complaint (Annexure-I) in respect of the same (alleged) incident stating that offences punishable under Sections 420, 468 and 471 of the IPC are committed by the Petitioners. On that complaint, learned Magistrate recorded the sworn statement of first Respondent (Annexure-II) and based on that statement took cognizance for offences punishable under Sections 420, 448 and 471 read with Section 34 of the IPC. Learned Magistrate took the case on file against Petitioners as C.C. No. 523 of 2010. Petitioners challenge cognizance taken by the learned Magistrate against them in C.C. No. 523 of 2010. Learned Counsel has contended that even as per the allegations made in the protest complaint, no offence u/s 420 or 471 of the IPC is made out. It is also contended that offence u/s 448 of the IPC cannot stand since in the protest complaint, no such section is incorporated and at any rate there is no mention of the alleged trespass in the sworn statement of first Respondent. Learned Counsel for first Respondent contends that offences are made out and at any rate offence punishable u/s 467 of the IPC is made out against the second Petitioner/second accused.

Case of first Respondent is that there was a partition of family properties between himself, first Petitioner and one Balan as per which all of them got 1.76= acres each. Of the 1.76= acres belonging to the first Petitioner, he assigned 50cents each to his son and daughter and the property which remained with the first Petitioner is only 76= cents but while so, first Petitioner executed a document with respect to 1.50acres in favour of the second Petitioner. It is the case of first Respondent that the said assignment deed was executed in favour of the second Petitioner taking in a portion of property belonging to the first Respondent as well. It is further alleged that in December 2004, first Petitioner trespassed into the property of the first Respondent and without knowledge of the latter, cut and removed about five trees.

It is seen from Annexures-II and III that learned Magistrate has taken cognizance of offences punishable under Sections 420 and 471 of the IPC on the strength of the sworn statement of first Respondent. Offence u/s 471 of the IPC relates to using a forged document or electronic record as genuine. For Section 471 to apply the essential requirement is that there must be a document or electronic record which is forged. ''Forgery'' is defined in Section 463 of the IPC and involves making of false document, false electronic record etc. ''Making a false document'' is defined in Section 464 of the IPC. On reading Section 464 it is revealed that it is only when with the intention of causing it to be believed that such document or part of the document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed or, without lawful authority, dishonestly or fraudulently causes any person to make any such document that making of false document arise. It has been so held by the Supreme Court in Md. Ibrahim and Others Vs. State of Bihar and Another, and by this Court in Hydru Haji Vs. State of Kerala, . In the latter case it is held that to be a false document for the purpose of Section 464 of the IPC the document should be made or executed claiming to be some one else or authorised by somebody else. If the document is executed by a person without claiming to be some one else or authorised by somebody else, it will be not a false document. If a person executes a document with false records, it is not the making of a false document. Here, the case is only that first Petitioner executed document in favour of the second Petitioner in respect of 1.50acres when actually, according to the first Respondent first Petitioner had only 76= cents in his possession and ownership. According to the first Respondent, the property mentioned in that document takes in his property also. That cannot attract the definition of making false document as defined in Section 465 of the IPC. If that be so, offence u/s 471 of the IPC also cannot stand. Learned Counsel argued that as against the second Petitioner offence u/s 471 of the IPC would stand. I am unable to accept that argument as well for, the said provision to apply, as I have already stated, there should be making of false document.

So far as Section 420 of the IPC is concerned, I am unable to understand how the first Respondent could say that on account of the document executed by the first Petitioner in favour of the second Petitioner, he has been cheated. Offence of cheating is defined in Section 415 of the IPC and it involves the dishonest representation made by a person based on which person deceived is made to deliver property. Here, execution of assignment deed by the first Petitioner in favour of the second Petitioner is no representation to the first Respondent nor has the latter delivered any property based on that representation. It is a different matter whether the second Petitioner could say that first Petitioner has cheated her.

What remained is Section 448 of the IPC. No doubt, in the protest complaint there is an allegation that in December, 2004 first Petitioner trespassed into the property but, it is relevant to note that in Annexure-IV, FIR no offence referring to the alleged trespass is incorporated. It is relevant to note that though there is a vague averment in Annexure-I, protest complaint that in December 2004 (without even mentioning the actual date) first Petitioner trespassed into the property, the section of offence is not mentioned in the protest complaint. No doubt the mere absence of section of offence in the protest complaint is not by itself sufficient to prevent learned Magistrate taking cognizance for alleged trespass. But it is relevant to note that even in the sworn statement of first Respondent there is no mention about the alleged trespass. I am aware that the complaint and the sworn statement are to be read together. But having regard to the circumstances stated above and in the nature of the claim being made by Petitioners based on the document first Petitioner has executed in favour of second Petitioner, whether sustainable or not as also that principle that a bonafide claim of right, however ill-founded it may be is a defence in an action for trespass. I am inclined to think that it is without sufficient materials on record that learned Magistrate has taken cognizance for the offence of alleged trespass as well. On going through the materials placed before me I can find only a civil dispute between the parties arising out of a document executed by first Petitioner in favour of second Petitioner which has to be resolved in the civil court.

Resultantly this criminal miscellaneous case is allowed. Cognizance taken by the learned Magistrate and proceeding against Petitioners in C.C. No. 523 of 2010 of the Court of learned Judicial First Class Magistrate, Kuthuparamba are quashed.