Radheshyam Dubey vs Chandra Bali Singh and Others

M. Wahajuddin, J.—The present application for leave to appeal is directed against an order of acquittal by the Magistrate. It is submitted that the complaint was under Sections 420 IPC, 423 IPC, 465 IPC and connected sections. Before me it is now conceded that offence u/s 420 IPC is not made out in view of the ingredients of that offence. It is however, urged there is offence under Sections 423 IPC and 465 IPC duly made out.

The complaint allegations regarding facts are that the accused persons entered into a conspiracy and accused person No. 1 sold certain property to other accused person under a fictitious sale deed while the property actually belonged to applicant. I proceed to consider whether on such facts application of Section 423 IPC would be attracted. Reliance was placed upon the case of Lachhman Das v. Emperor 6 CriLJ 1907 at p. 111. One of the necessary ingredients of the offence u/s 423 IPC is that the document by which transfer is made should contain any false statement relating to the consideration. It is not every false statements but false statement relating to consideration alone which will attract the application of Section 423 IPC. In the case of Lachman Das (supra) the transaction was relevant for defeating right of preemption and the matter was approached from that angle and holding that no consideration passed by the applicant was held guilty u/s 423 IPC. The facts are thus distinguishable.

The other case relied upon is the case of Amiri Singh v. Emperor 1933 CriLJ 846 of Patna High Court. In that case it was held that fabrication of the fictitious document itself was an offence u/s 423 IPC. Actually what transpired was that the judgment debtor executed a document with false recital as to the consent of the decree-holder to take their land and this was done with a view to defeat a claim made in a suit. It is noteworthy that Patna High Court in its later ruling reported in the case of Mathura Nath Sah Deo and Another Vs. Biria Uraon, laid emphasis that false statement must relate to consideration. In that case a false statement as to the area of the land was made by the borrower securing loan from the Government, and a charge for consideration was created on the land yet it was held that as the false representation did not relate to the consideration as such one of the necessary ingredients of Section 423 IPC is not made out. It is a settled law that in case of single judge pronouncement of any court it is later pronouncement which is to prevail and that being the position, the later authority of Patna High Court will have a greater weight.

It is significant to observe that the legislature has not used the expression of false statement widely as to cover all sorts of false statement viz. assertion of title, possession etc. and has qualified word ''false statement'' by further using the expression relating to consideration so the natural meaning would be given while constructing the section and it can safely be held that false statement should be relating to consideration which is not the position in the present case.

As regards the submission that offence u/s 465 IPC is made out, I was referred to Section 463 IPC but for the meaning of expression ''makes false document'' used in Section 463 IPC one has to look into the definition of false document given in Section 464 and on a perusal of Section 464 IPC it is clear that if a person who is genuinely that person executes and signs any document in his own name then he does not commit any forgery and no offence of forgery would be made out u/s 465 IPC. In fact, I could have refused to allow permission to appeal by a short order but to do justice to the pains taken by the learned Counsel for the Appellant I have dictated this long order. Needless to enter into further discussion, the application for leave to appeal is rejected.