M.L.Hans vs A.D.Nangia

V.S. Aggarwal, J.

Petitioner M.L. Hans is in occupation of ground floor of a house situated at Hissar. He is a tenant. He is alleged to be having strained relations with his landlord. They were locked in some litigation. Petitioner''s case is that respondents 2 to 4 in collusion with respondent No. 1 concealed the tenancy of the petitioner and that of another person to cause wrongful loss to him and to his tenancy rights. He contended in his complaint that respondents did not mention the factum of the tenancy of the petitioner in the sale deed of 20.2.1992. The sale deed could be produced as a proof of transfer of immovable property before any Court or public servant in which it has been indicated that possession has been delivered to the purchasers. It will affect the tenancy rights of the petitioners. A false document has been created. As per the petitioner, respondents committed offences punishable under Sections 418/193/34/463 IPC.

After recording the preliminary evidence, Chief Judicial Magistrate, Hissar on 18.8.1992 held that prima facie case is made out and summoned the respondents as accused for offences punishable under Sections 418/193/463/34 IPC.

Shri A.D. Nangia and Rattan Singh Punia filed a revision in the Court of Sessions. The learned Sessions Judge held that sale deed is a document for conveyance of property. It affects'' the rights of the parties only. It in no way impinges the rights of the tenant. Thus, the petitioner could not have been cheated. The learned Sessions Judge held that there was no ground to summon the petitioner as accused and accordingly allowed the revision petition.

Aggrieved by the said order, the present revision petition has been filed.

Learned counsel for the petitioner at the outset urged that against the order summoning the respondents, a revision was not maintainable in the Court of Sessions. According to him, it was an interlocutory order and therefore, the revision petition was not maintainable. He argued that remedy available to the respondents was to approach the said Judicial Magistrate for recalling the order.

Attention of the Court was drawn towards the decision of the Supreme Court in the case of K.M. Mathew v. State of Kerala and another, 1992(1) RCR 232. In the cited case, a similar question had come up for consideration as to if the Judicial Magistrate who had summoned the accused, could recall the order or not. The answer given was in the affirmative. In paragraph 8 it was held :

"It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is not bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."

There is no controversy with this proposition that once the Magistrate has summoned an accused, he can approach the said Court for recalling the order. But certain salient facts of the present case cannot be ignored. The argument that is now being raked in this Court, was not raised before the learned Sessions Judge. The impugned order was passed by the learned Sessions Judge in March, 1993. Mote than 3 years have expired. At this stage, therefore, it would be improper to consider the legal technicalities and permit the parties to go back before the said Judicial Magistrate after a lapse of such a long time. That would be permitting further delay to occur. The petitioner could well have raised this contention earlier. It is being raised for the first time in this Court. Consequently it is not in the fitness of thing or in the interest of justice to go further into this argument. It would be, thus, appropriate that merits of the petition is considered and decided.

It is not being disputed that a sale deed is a document of conveyance. It would effect the parties to the said document. The petitioner was not a party to the sale deed. His grievance basically is that he is in occupation but was not shown in the sale deed to be the tenant and that he has been cheated and the document is a forged one. The expression "cheating" has been defined in Section 415 of the Indian Panel Code. It reads :

"415. 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 omit 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",

Explanation. A dishonest concealment of facts is a deception within the meaning of this section."

Amongst the necessary ingredients of cheating it has to be shown that a person is deceived and as a result of such deceivement he is made to deliver the property or give consent to something which he otherwise would have done. It would cause damage to the person so deceived. As already referred to above, the petitioner is not a party to the sale deed and in no event has been cheated. The argument, thus, so much thought of must fail.

Similarly, forgery has been defined under Section 463 of the Indian Penal Code in the following words :

"463. Forgery. Whoever makes any false document or part of a document 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 property, or to enter into any express or implied contracts, or with intent to commit fraud or that fraud may be committed, commits forgery."

It refers to making of a false document. This expression has been elucidate in Section 464 IPC and reads :

"464. Making a false document. A person is said to make a false document

First. Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that if was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or

Secondly. Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person whether such person be living or dead at the time of such alterations; or

Thirdly. Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration."

In the present case in hand there is no forgery qua the petitioner because none of his signs, seals or signatures are alleged to have been forged. The learned Sessions Judge in these circumstances rightly allowed the revision.

For these reasons, the petition being without merits fails and is dismissed.