@JUDGMENTTAG-ORDER
K.B.K. Vasuki, J.@mdashThe accused 2 and 3 have come forward with these criminal original petitions to quash the FIR in Cr. No. 304/2012 pending on the file of the respondent police.
2. The FIR in Cr. No. 304/2012 was registered on the basis of the confession statement of one M. Nagarajan, who is arrayed as A1 in the above Crime Number, for the offences under sections 294A, 420 and 120B IPC. The complaint proceeds as if the respondent police, after giving prior intimation to the concerned Judicial Magistrate, Alandur, regarding house search of one Nagarajan in Thillaiganga Nagar, Nanganallur, Chennai, had been to the house of Nagarajan in the early morning hours on 12.3.2012 and reached the house along with Revenue Inspector by name Kanikainathan and his assistant by name Saranbabu. At the time of search, they found a sum of Rs. 7,20,05,000/- in three bags and the same was seized in the presence of two witnesses and when Nagarajan/A1 was enquired, he gave a confession statement to the effect that A1 along with the petitioners herein, printed lottery tickets of Sikkim, Kerala and Maharashtra at Calcutta and Faridabad and sold the same unauthorisedly in other States as referred to above and also in Chennai and earned huge profit of Rs. 7,20,05,000/- and the same was kept in his possession. The statement was recorded in the presence of the witnesses between 9.10 am and 10.30 am and the accused along with property seized were brought to S8, Adambakkam Police Station at 11.00 am and the case was registered as FIR in Cr. No. 304/2012 for the offences referred to above.
3. Thereafter, the Investigating officer has filed alteration report to the effect that he, in the course of investigation, collected an unregistered sale agreement dated 02.03.2012 executed between one Leema Rose/wife of A2 and Moorthy/A3 for the sale of his house at Anna Nagar, Chennai, in non judicial stamp paper bearing nos. AE147535 and 147536 supplied by the State Government, prepared by A3/G. Moorthy and A2''s wife Leema Rose to one stamp vendor by name Mayilsamy on 9.3.2012, who in turn sold to the public on 13.3.2012, as such, the document dated 2.3.2012 was thus fabricated for accounting the illegal money of Rs. 7,20,05,000/- seized in Cr. No. 304 of 2012. On the basis of such alteration report, the case was altered into one under sections 294A, 420, 120b, 467, 468 and 471 IPC and Leema Rose, who is the wife of A2/petitioner in Crl. OP. No. 13106/2013 was also arrayed as A4 in Cr. No. 304/2012.
4. The petitioners/A2 and A3, in these two petitions, seek to quash the FIR mainly on the following grounds: (i) the FIR registered against the petitioners and others is not maintainable; (ii) the allegations raised in the FIR and the materials collected during the course of investigation, do not disclose any prima facie case; (iii) the ingredients of the offences under Sections 294A, 420, 120b, 467, 468 and 471 IPC are not attracted in the present case; and (iv) the amount seized is accounted one representing part of the sale consideration for sale of the property belonging to A3 and the same is duly reflected in the income tax returns and is also duly accepted by the competent Income Tax authority.
5. Per contra, the learned Additional Public Prosecutor representing the respondent police would seriously oppose the relief sought for herein, by relying on the materials available, which according to him, are sufficient enough to make out prima facie case against the accused for the offences charged.
6. Heard the rival submissions made on both sides and perused the records.
7. It may be true that this court is bound by the law laid down by the Hon''ble Apex Court in the following judgments cited on the side of the prosecution: (i)
8. The Hon''ble Apex Court in the decision reported in
9. As already referred to, the FIR was registered on the basis of the confession statement given by A1 Nagarajan in the course of search of his house. Though the possession of the huge amount and the seizure of the same is not seriously denied on the side of the accused, the prosecution theory regarding the nature and source of the same is seriously denied on the side of the accused. It is also submitted herein that A1 Nagarajan, who is the author of so called confession statement, has subsequently retracted the same. Be that as it may, the first argument advanced on behalf of A2 & A3/petitioners herein and also on behalf of other accused is that the statement of A1 did not refer to Chennai as one of the places, for effecting unauthorised sale of lottery tickets, as such the respondent police assumes no jurisdiction to entertain the present FIR. It is further contended before this Court that even otherwise, the very fact that Chennai was introduced only by the prosecution, for unauthorisedly selling the lottery tickets of other States and printed in other States, would indicate the malafide intention and ulterior motive with which the FIR was registered against the petitioners and also non petitioners/accused. The learned senior counsel for the petitioners has in the course of his argument, also drawn the attention of this court to the so called confession statement and further confession statement of A1 allegedly recorded on 12.3.2012 and 16.3.2012 respectively. The reading of the same would disclose that A1 has nowhere referred to Chennai as one of the places, where, other States lottery tickets were said to be unauthorisedly sold. As rightly pointed out by the learned senior counsel for the petitioners, when FIR was registered on the basis of the confession statement of A1, the inclusion of Chennai in FIR appears to be without any basis, unfounded and ill-motivated.
10. As far as the seizure of sum of Rs. 7,20,05,000/- is concerned, the same according to the prosecution, was referred to in the confession statement as profit earned through unauthorised lottery ticket business. Whereas, according to the accused, the same represents part of sale consideration of sum of Rs. 7,30,00,000/- paid as advance on 2.3.2012 by A4 to A3 for the purchase of the property belonging to A3. As far as the prosecution case is concerned, the only document made available to prove the nature and source of so called ill-gotten money, is the confession statement of co-accused. It is pertinent to mention at this juncture that the so called seizure was in the course of search of house of A1 and not on the strength of any confession statement of A1, as such, the recovery cannot be construed as recovery under Section 27 of the Indian Evidence Act.
11. The accused have, in order to substantiate their plea that the amount represents part of the sale consideration, also produced the following documents:(i) sale agreement dated 2.3.2012 executed between A3 and A4; (ii) sale deed dated 28.8.2012; (iii) Income Tax Returns filed by A3 and A4 on 28.5.2012 and 29.5.2012 and (iv) acknowledgment of the same by the Income Tax Authority. The combined appreciation of the documents referred to above would reveal that the parties agreed to sell the property for Rs. 12,30,00,000/-, out of which, Rs. 7,30,00,000/- was paid by way of advance on 2.3.2012 and the same was also reflected in the balance sheet as on 31.3.2012 forming part of income tax returns filed by A3 and A4 and the sale agreement was followed by execution and registration of sale deed on 28.08.2012. It is not the case of the prosecution that no such sale transaction was agreed upon and effected and the sale agreement dated 02.03.2012 and sale deed dated 28.08.2012 are sham and nominal one. What is their case is that the sale agreement dated 02.03.2012 was written in the non judicial stamp papers bearing specified numbers, which are sold to public on 13.03.2012 subsequent to the date of sale agreement dated 02.03.2012. It is alleged that an act of forgery is committed by creating the sale agreement dated 02.03.2012 in such non-judicial stamp papers only for accounting illegal money. The prosecution, in order to show that the non judicial stamp papers bearing particular numbers were sold by the Government to stamp vendor Mylsami on 9.3.2012, who inturn sold it to the public on 13.3.2012, has produced one receipt for the stamps received and the register relating to the same and the statement of Mylsami. However, neither of the documents referred to above nor the statement of Mylsami would clearly reveal that the non judicial stamp papers bearing nos. AE147535 and 147537 were either purchased on 9.3.2012 by Mylsami or sold to the public on 13.3.2012. When the prosecution attempted to make out that the document and the register are legally permissible materials, the same do not appear to be so. Further, the documents do not reflect the particulars regarding the person, who purchased the non judicial stamp papers bearing numbers as referred to above. Even otherwise, in the absence of any material to support the case put forth on the side of the prosecution that the sale transaction is sham and nominal, the theory regarding doubtful nature of the sale agreement is not going to help the prosecution and no ingredients of the offences under sections 420, 467, 468 and 471 IPC are attracted against the accused for the following reasons.
12. Section 420 IPC is attracted, when there is an act of cheating thereby fraudulently and dishonestly inducing the person deceived to deliver any property to any person etc. As far as the present case is concerned, the sale agreement and sale deed was executed between A3 and A4. It is nobody''s case that the amount of Rs. 7,20,05,000/- was received by deceiving any person, fraudulently or dishonestly and induced the person so deceived to part with such money. It is also nobody''s case that the lottery tickets were unauthorisedly sold here by making false representation that lottery business is legally permissible either in the State of Tamil Nadu or in other States. As it is common knowledge that the sale of lottery tickets was banned, the question of selling the same on false representation and inducing any other person to make any payment for the same so as to attract either section 415 IPC or 420 IPC does not arise herein.
13. The Hon''ble Supreme Court in the judgment reported in
Section 415 of the Indian Penal Code deals with cheating. To hold a person guilty of cheating as defined under Section 415 of the Indian Penal Code, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise with an intention to retain the property. In other words, Section 415 of the Indian Penal Code which defines cheating, requires deception of any person (a) inducing that person to: (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property OR (b) intentionally inducing that person 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, any body''s mind, reputation or property. In view of the aforesaid provisions, the appellants state that a person may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts the inducing must be intentional but not fraudulent or dishonest.
The Hon''ble Supreme Court has, by observing so, in para 35 of the same judgment found that the ingredients of the offence of cheating are missing for issuing the process against the appellants therein mainly on the ground that the customs duty has been paid by the Gujarat Cancer Society (GCS) and there was no fraudulent or dishonest intention on the part of the GCS or its office bearers to retain the property and there was no inducing on the part of the GCS or its office bearer intentionally to retain the property in view of the fact that the customs duty has been paid by the GCS. Similarly, in the instant case, there is no allegation regarding any act of inducement and the amount seized is duly reflected in the income tax returns and is duly acknowledged by the Income Tax Authority. In that event, the present case is squarely covered by the decision of the Hon''ble Apex Court in the decision cited supra.
14. As far as the act of forgery of valuable security and the act of forgery for the purpose of cheating and using the forged document as genuine punishable under sections 467, 468 and 471 are concerned, what is the act of forgery and act of forgery of valuable security is defined under Sections 463 and 467 IPC. The reading of the relevant provisions of law would disclose that the same involves making of false document with illegal intention. Further, Section 468 IPC defines forgery for the purpose of cheating, as an act of forgery coupled with an intention that the document or electronic record forged shall be used for the purpose of cheating. That being so, the execution of any agreement between two persons in non judicial stamp paper even assuming by correcting the dates, will not amount to create a false document, as per the definition stated above.
15. As a matter of fact, the mode of act of forgery is whether by correcting the dates or by creating non judicial stamp papers, is not mentioned in the alteration report. The case of the prosecution in this regard is that the sale agreement was created in the stamp papers, which were sold to public on 13.3.2012. However, the conduct of the parties in duly mentioning the amount representing the sale consideration in the income tax returns and acknowledgment and acceptance of the same by the competent Income Tax Authority and the very cursory glance at the documents produced on the side of the accused in support of the same would only improbablise such case of the prosecution that it was fabricated for the purpose as mentioned in the alteration report, as such, when the execution and existence of the document in question is not covered under Sections 463 and 464 IPC, the offences under sections 467, 468 and 471 IPC are not attracted in the present case.
16. As rightly argued by the learned senior counsel for the petitioners, the improbable nature of the case is writ large and is apparent on the face of the records and the materials made available herein appear to be manifestly and clearly inconsistent with the accusation made. The Hon''ble Apex court in the judgment reported in
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
The present case falls within the categories of (2), (3), (5) and (7) as laid down in Bhajan Lal''s case for want of prima facie case, legally permissible evidence to support the case, if any and on account of improbable nature of the case and the malafide and ulterior motive, with which it is instituted.
17. The Hon''ble Apex Court has in para 7 of the decision reported in
18. In this case, there is no element of impersonation or falsely claiming to be authorised to make a false document. The Hon''ble Apex Court in para 16 of the authority reported in
19. As far as the present case is concerned, the custody of unaccounted money is not specified to be an offence and the act of creating anti dated document by allegedly using forged non judicial stamp papers is also not specified as offence under the Code. When that being so, it cannot be assumed that the accused are punishable for the offences under sections 467, 468 and 471 IPC. In this regard, yet another judgment of the Hon''ble Supreme Court in
20. Other section charged against the petitioners and others is the offence punishable under section 294A IPC. The accused are charged for the same, based on further confession statement of A1 dated 16.3.2012. A1 has in his further so called confession statement, allegedly admitted his keeping one office in his house at Chennai, wherein, 3000 expired lottery tickets were kept by him and the same were seized on being identified by A1. The learned senior counsel for the petitioners would seriously attack this part of the allegation to be highly improbable. It is submitted before this Court that if at all any office is kept at Chennai in his house and expired 3000 lottery tickets were kept in his room, it would have been found out in the course of house search and the failure of the prosecution to seize any lottery tickets from the so called office room at his house during the course of search on 12.3.2012 would prove the improbable nature of the prosecution theory as stated above. This court finds greater force in the argument so advanced on the side of the accused.
21. Thus, for the reasons stated above, this court is of the view that neither the case of the prosecution do disclose any of the ingredients of the offences charged against the accused nor the accused can be subjected to face the ordeal of trial by reason of improbable nature of prosecution case, as such, the FIR in Cr. No. 304/2012 pending on the file of the respondent police is liable to be quashed in entirety against the petitioners herein as well as non petitioners.
22. In the result, the FIR in Cr. No. 304/2012 on the file of the respondent police stands quashed in entirety and both the petitions are accordingly allowed.
