@JUDGMENTTAG-ORDER
R.R. Prasad, J.@mdashHeard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance. This application has
been filed for quashing of the entire criminal proceeding of Vigilance Case No. 33 of 2002 (Special Case No. 38 of 2002) including the order
dated 18.11.2009, passed by the then Special Judge, Vigilance, Ranchi whereby and whereunder cognizance of the offences punishable under
Sections 420/ 423/ 424/ 467/ 468/ 469/ 471/ 477/ 201/ 120B/ 109 of the Indian Penal Code and also u/s 13(1)d read with Section 13(2) of the
Prevention of Corruption Act, 1988 has been taken against the accused persons including the petitioner.
2. The facts giving rise to this application, are that certain land measuring 1.8 acres, appertaining to Khata No. 268, Plot No. 2983 situated at
Mouza-Argora was recorded in record of right as Gairmazurwa Malik. However, in the year 1970-71, two rent receipts were issued against that
land in the name of Samu Sao. After his death, his son-Chandan Sao inherited the property and got his name mutated against the aforesaid land in
the year 1982-83.
3. In course of time, Chandan Sao sold 0.49 acres and 0.59 acres of land separately to Mahavir Kashi, the then Secretary of Jai Bhawani
Cooperative Society in the year 1988-91 who got his name mutated against the vended land. Mahavir Kashi sold the land to ten persons including
this petitioner on 29.4.1991 who got her name mutated and accordingly Register-II was opened in her name.
4. Since, the land initially had been recorded as Gairmazurwa Malik, transfers of said land to different persons were considered to be illegal and,
therefore, a case was lodged by the Inspector, Vigilance against 23 persons including this petitioner on the allegation that all those persons have
committed offence of forgery, cheating and misappropriation etc.
5. Upon submission of the charge-sheet, cognizance of the offences, as aforesaid, was taken against the petitioner vide order dated 18.11.2009
which is under challenge.
6. Learned counsel for the petitioner submits that though initially the land was recorded as Gairmazurwa Malik but rent receipts with respect to that
land were issued in favour of Samu Sao. After his death, his son-Chandan Sao inherited the property and got his name mutated against that land
and even Register-II was opened in his name. Thereupon, he transferred the land to Mahavir Kashi, the then Secretary of Jai Bhawani
Cooperative Society who in turn sold the land to different persons including this petitioner and thereby the petitioner cannot be said to have
committed any offence either of cheating, forgery or misappropriation nor they can be said to have abetted the Government officials to commit
offence of criminal misconduct and thereby the petitioner cannot be held responsible for commission of any offence either under the Indian Penal
Code or under the Prevention of Corruption Act.
7. It was further submitted that how the petitioner can be instrumental in getting the rent receipts issued in the name of Samu Sao when he was not
in picture at all at that time. It was further submitted that the petitioner after knowing that the land has been recorded in the name of Secretary of Jai
Bhawani Cooperative Society purchased it and thereby she has not committed any offence under which cognizance of the offences has been taken
and, therefore, the order taking cognizance is fit to be quashed.
8. As against this, Mr. T.N. Verma, learned counsel appearing for the Vigilance, submits that admittedly the land in question was recorded as
GairMazurua Malik which land had never been settled to Samu Sao still Samu Sao managed to get the rent receipts issued in his favour against that
land and then in connivance with the Government officials he got his name mutated against the land in question. After his death, his son-Chandan
Sao inherited the property. He also in connivance with the Government officials by illegal means got that land mutated in his name. The same is the
case with the subsequent transferees and also the petitioner and thereby the charge-sheet has been submitted against the petitioner upon which
cognizance of the offences has been taken which in the facts and circumstances cannot be said to be illegal.
9. It was further submitted that the culpability of all the accused persons including the Government officials would be evident from the fact that the
relevant records have been missing.
10. In the circumstances, the question does arise as to whether the allegation made in the F.I.R. does constitute the offence of cheating, forgery,
misappropriation or even the offence under the Prevention of Corruption Act?
11. Having heard learned counsel for the parties, it need not to be recorded in detail the manner in which the land was transferred to the petitioner
except the fact that the petitioner is the purchaser in whose name land has been mutated and that the petitioner had purchased the land from the
persons in whose name jamabandi had been created and under these circumstances, how the petitioner can be said to have committed offence of
forgery. In this regard, I may refer to a decision rendered in a case of Md. Ibrahim and Others Vs. State of Bihar and Another, , wherein their
Lordships after having regard to the provision contained in Section 470 of the I.P.C. as well as other provisions relating to forgery did observe as
follows:--
The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or
false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first
accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be
said to have made and executed false documents, in collusion with the other accused.
12. The Court has further observed that analysis of Section 464 of the Indian Penal Code shows that it divides false documents into three
categories as follows:--
The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such
document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it
was not made or executed.
The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a documents in any material part, without lawful
authority, after it has been made or executed by either himself or any other person.
The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not
be reason of;
(a) unsoundness of mind; (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a ''false, statement'', if (i) he made or executed a document claiming to be someone else or authorized by
some one else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control
of his senses.
The sale deeds executed by the first appellant clearly and obviously do not fall under the second and third categories of ""false statement"". It,
therefore, remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way
connected with the land, amounted to committing forgery of the documents with the intention of taking possession of the complainant''s land (and
that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said
sale deeds) would bring the case under the first category.
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 authorized 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 document"", 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 authorized 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 is defined u/s 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.
13. Thus, it has been categorically held that when a document is executed by a person claiming a property though it is not his property but when he
is not claiming that he is authorized by someone else or he is someone else, execution of such document cannot be said to be a false document in
terms of Section 464 of the Indian Penal Code and if it is not a false document, then the question of committing an offence under Sections 467,
468 and 471 does not arise.
14. The ratio laid down in the aforesaid case equally applies in this case as the transferors, who always claimed the properties as their own, can
never be said to have committed offence of forgery by transferring the land through sale deed to this petitioner and thereby the question of
committing offence of forgery by this petitioner never arises.
15. Going further in the matter, one can hardly conceive as to how offence under Sections 423 and 424 of IPC is made out when there has been
no case of dishonest or fraudulent execution of deed of transfer containing false statement of consideration nor it is the case of dishonest or
fraudulent removal of concealment of the property.
16. Likewise in the facts and circumstances of the case, when the petitioner purchased the land from the persons in whose names jamabandi had
been created and then got her name mutated against the land purchased, she can never be said to have committed offence of cheating as defined
u/s 415 of Indian Penal Code punishable u/s 420 of Indian Penal Code.
17. Further in the facts and circumstances, as noted above, the petitioner cannot be said to have abetted the offence u/s 13(1)d of the Prevention
of Corruption Act.
18. Under the circumstances, entire criminal proceeding of Vigilance. Case No. 33 of 2002 (Special Case No. 38 of 2002) including the order
dated 18.11.2009 taking cognizance, is hereby quashed, so far the petitioner is concerned. In the result, this application is allowed.