Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1695 OF 2009

[Arising out of SLP [Crl.] No.6211 of 2007]

Md. Ibrahim & Ors. … Appellants

Vs.

State of Bihar & Anr. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. Heard learned counsel for the parties.

2. Second respondent herein filed a complaint against appellants 1

to 3 (accused 1 to 3) and two others before the Chief Judicial Magistrate,

Madhubani, alleging that he was the owner of Katha No. 715 Khasra

No.1971 and 1973 admeasuring 1 bigha, 5 Katha and 18 Dhurs; that the

first accused who had no connection with the said land and who had no

title thereto, had executed two registered sale deeds dated 2.6.2003 in

favour of the second accused in respect of a portion of the said land

measuring – 8 Khatas and 13 Dhurs; and that the third, fourth and fifth

accused being respectively the witness, scribe and stamp vendor in regard

to the sale deeds had conspired with accused 1 and 2 to forge the said

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documents; and that when he confronted accused 1 and 2 about the said

forgery, they abused him and hit him with fists and told him that he can do

what he wanted, but they will get possession of the land on the basis of the

said documents.

3. The learned Magistrate by order dated 19.7.2003 took cognizance

of the offences under sections 323, 341, 420, 467, 471 and 504 of Indian

Penal Code (for short, ‘the Code’) and referred the complaint for

investigation under section 156(3) of the Code of Criminal Procedure (for

short, ‘Cr.P.C.’). On the basis thereof a First Information Report was

registered on 10.10.2003 with Pandaul Police Station. After investigation,

a charge sheet came to be filed on 4.9.2004. The accused applied for

discharge. According to the first accused, the complainant and first accused

were cousins; that Badri Mian (paternal grandfather of the complainant)

and Mithu Mian (maternal grandfather of first accused) were brothers and

that they were the owners of plot nos.1973 and 1971; that the said plots

was inherited by Badri Mian’s son (father of complainant) and by Muthu

Mian’s children, one of whom was Girja, mother of the first accused; that

as per a family arrangement, a portion of the said plots came to the share of

Girja and that portion was in the possession of her husband who got it

mutated in his name and was paying land revenue; and that after his death,

the said land came into the possession of her son – the first accused; that

his name was entered in place of his father, and he was paying land

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revenue in regard to the said portion of land; and that he bonafide sold a

portion of the land measuring 8 Khatas and 13 Dhurs to the second

accused; that the sale deeds were valid, and that the complainant filed a

false complaint only to harass him. The other accused denied any collusion

or complicity in any offence. It was also contended that the allegations by

the complainant even if accepted to be true, would only give rise to a civil

dispute and did not constitute any offence punishable under the Code or

any other law.

4. The prosecution opposed the said application contending that the

investigation showed that the plot sold was a part of land allotted to Badri,

grandfather of complainant, and the first accused did not produce any

documents in support of his title; and that therefore the Investigating

Officer had submitted a charge-sheet against the accused for the aforesaid

offences relating to preparation of false sale deeds.

5. The learned Sub-Divisional Magistrate, Madhubani, by order dated

14.12.2005 rejected the application for discharge holding that there was

sufficient material for framing charges. The accused thereafter filed an

application under section 482 Cr.PC before the Patna High Court for

quashing the order dated 14.12.2005. In the meanwhile charges were

framed against the accused. The High Court dismissed the petition

observing that the learned Magistrate had found sufficient material

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showing the complicity of the accused in the crime. The said order is under

challenge in this appeal by special leave.

6.The question that therefore arises for consideration is whether the

material on record prima facie constitutes any offences against the accused.

The contention of the appellant is that if the allegations made in the

complaint and FIR, even if accepted to be true in entirety did not disclose

the ingredients of any offence of forgery (sections 467 and 471) or

cheating (section 420) or insult (section 504) or wrongful restraint

(section 341) or causing hurt (section 323) and there was no other material

to show any offence and therefore, their application ought to have been

accepted.

7. This Court has time and again drawn attention to the growing

tendency of complainants attempting to give the cloak of a criminal

offence to matters which are essentially and purely civil in nature,

obviously either to apply pressure on the accused, or out of enmity towards

the accused, or to subject the accused to harassment. Criminal courts

should ensure that proceedings before it are not used for settling scores or

to pressurise parties to settle civil disputes. But at the same, it should be

noted that several disputes of a civil nature may also contain the

ingredients of criminal offences and if so, will have to be tried as criminal

offences, even if they also amount to civil disputes. [See: G. Sagar Suri v.

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State of U.P. [2000 (2) SCC 636] and Indian Oil Corporation vs. NEPC

India Ltd. [2006 (6) SCC 736]. Let us examine the matter keeping the

said principles in mind.

Sections 467 and 471 of the Penal Code

8. Let us first consider whether the complaint averments even

assuming to be true make out the ingredients of the offences punishable

either under section 467 or section 471 of Penal Code. Section 467 (in so

far as it is relevant to this case) provides that whoever forges a document

which purports to be a valuable security, shall be punished with

imprisonment for life or with imprisonment of either description for a term

which may extend to ten years and shall also be liable to fine. Section 471,

relevant to our purpose, provides that whoever fraudulently or dishonestly

uses as genuine any document which he knows or has reason to believe to

be a forged document, shall be punished in the same manner as if he had

forged such document. Section 470 defines a forged document as a false

document made by forgery.

9. The term “forgery” used in these two sections is defined in section

463. Whoever makes any false documents 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 express or implied

contract, or with intent to commit fraud or that the fraud may be

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committed, commits forgery. Section 464 defining “making a false

document” is extracted below :

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

document or false electronic record---

First.—Who dishonestly or fraudulently –

(a)makes, signs, seals or executes a document or part of a

document;

(b)makes or transmits any electronic record or part of any

electronic record;

(c)affixes any digital signature on any electronic record;

(d)makes any mark denoting the execution of a document or

the authenticity of the digital signature,

with the intention of causing it to be believed that such document or

a part of 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

Secondly.—Who, without lawful authority, dishonestly or

fraudulently, by cancellation or otherwise, alters a document or an

electronic record in any material part thereof, after it has been made,

executed or affixed with digital signature either by himself or by any

other person, whether such person be living or dead at the time of

such alternation; or

Thirdly.—Who dishonestly or fraudulently causes any person to

sign, seal, execute or alter a document or an electronic record or to

affix his digital signature on any electronic record 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 electronic record or the nature of the

alteration.

Explanation 1 - A man’s signature of his own name may amount to

forgery.

Explanation 2 – The making of a false document in the name of a

fictitious person, intending it to be believed that the document was

made by a real person, or in the name of a deceased person,

intending it to be believed that the document was made by the person

in his lifetime, may amount to forgery.

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[Note: The words ‘digital signature’ wherever it occurs were

substituted by the words ‘electronic signature’ by Amendment Act

10 of 2009].”

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.

10.An analysis of section 464 of Penal Code shows that it divides

false documents into three categories:

10.1) 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.

10.2) The second is where a person dishonestly or fraudulently, by

cancellation or otherwise, alters a document in any material part, without

lawful authority, after it has been made or executed by either himself or

any other person.

10.3) The third is where a person dishonestly or fraudulently causes any

person to sign, execute or alter a document knowing that such person could

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not by reason of (a) unsoundness of mind; or (b) intoxication; or (c)

deception practised upon him, know the contents of the document or the

nature of the alteration.

11.In short, a person is said to have made a ‘false document’, if (i) he

made or executed a document claiming to be someone else or authorised

by someone 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.

12.The sale deeds executed by first appellant, clearly and obviously

do not fall under the second and third categories of ‘false documents’. 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 complainant’s land (and that accused 2

to 5 as the purchaser, witness, scribe and stamp vendor colluded with 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 authorised or

empowered by the owner, to execute the deed on owner’s behalf. When a

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person executes a document conveying a property describing it as his, there

are two possibilities. The first is that he bonafide 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 documents’, 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

authorised 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 as defined under section 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.

Section 420 IPC

13. Let us now examine whether the ingredients of an offence of

cheating are made out. The essential ingredients of the offence of

“cheating” are as follows: (i) deception of a person either by making a

false or misleading representation or by dishonest concealment or by any

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other act or omission; (ii) fraudulent or dishonest inducement of that

person to either deliver any property or to consent to the retention thereof

by any person or to intentionally induce that person so deceived to do or

omit to do anything which he would not do or omit if he were not so

deceived; and (iii) such act or omission causing or is likely to cause

damage or harm to that person in body, mind, reputation or property. To

constitute an offence under section 420, there should not only be cheating,

but as a consequence of such cheating, the accused should have dishonestly

induced the person deceived (i) to deliver any property to any person, or

(ii) to make, alter or destroy wholly or in part a valuable security (or

anything signed or sealed and which is capable of being converted into a

valuable security).

14. When a sale deed is executed conveying a property claiming

ownership thereto, it may be possible for the purchaser under such sale

deed, to allege that the vendor has cheated him by making a false

representation of ownership and fraudulently induced him to part with the

sale consideration. But in this case the complaint is not by the purchaser.

On the other hand, the purchaser is made a co-accused. It is not the case of

the complainant that any of the accused tried to deceive him either by

making a false or misleading representation or by any other action or

omission, nor is it his case that they offered him any fraudulent or

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dishonest inducement to deliver any property or to consent to the retention

thereof by any person or to intentionally induce him to do or omit to do

anything which he would not do or omit if he were not so deceived. Nor

did the complainant allege that the first appellant pretended to be the

complainant while executing the sale deeds. Therefore, it cannot be said

that the first accused by the act of executing sale deeds in favour of the

second accused or the second accused by reason of being the purchaser, or

the third, fourth and fifth accused, by reason of being the witness, scribe

and stamp vendor in regard to the sale deeds, deceived the complainant in

any manner. As the ingredients of cheating as stated in section 415 are not

found, it cannot be said that there was an offence punishable under

sections 417, 418, 419 or 420 of the Code.

A clarification

15.When we say that execution of a sale deed by a person, purporting

to convey a property which is not his, as his property, is not making a false

document and therefore not forgery, we should not be understood as

holding that such an act can never be a criminal offence. If a person sells a

property knowing that it does not belong to him, and thereby defrauds the

person who purchased the property, the person defrauded, that is the

purchaser, may complain that the vendor committed the fraudulent act of

cheating. But a third party who is not the purchaser under the deed may not

be able to make such complaint. The term ‘fraud’ is not defined in the

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Code. The dictionary definition of ‘fraud’ is “deliberate deception,

treachery or cheating intended to gain advantage”. Section 17 of the

Contract Act, 1872 defines ‘fraud’ with reference to a party to a contract.

In Dr. Vimla vs. Delhi Administration – AIR 1963 SC 1572, this Court

explained the meaning of the expression ‘defraud’ thus

“The expression "defraud" involves two elements, namely, deceit

and injury to the person deceived. Injury is something other than

economic loss that is, deprivation of property, whether movable or

immovable, or of money, and it will include any harm whatever

caused to any person in body, mind, reputation or such others. In

short, it is a non-economic or non-pecuniary loss. A benefit or

advantage to the deceiver will almost always cause loss or detriment

to the deceived. Even in those rare cases where there is a benefit or

advantage to the deceiver, but no corresponding loss to the deceived,

the second condition is satisfied.”

The above definition was in essence reiterated in State of UP vs. Ranjit

Singh – 1999 (2) SCC 617.

16.The Penal Code however defines ‘fraudulently’, an adjective form

of the word ‘fraud’, in section 25, as follows : “A person is said to do a

thing fraudulently if he does that thing with intent to defraud but not

otherwise”. The term “fraudulently” is mostly used with the term

“dishonestly” which is defined in section 24 as follows : “Whoever does

anything with the intention of causing wrongful gain to one person or

wrongful loss to another person is said to do that thing “dishonestly”. To

‘defraud’ or do something fraudulently is not by itself made an offence

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under the Penal Code, but various acts when done fraudulently (or

fraudulently and dishonestly) are made offences. These include:

(i)Fraudulent removal or concealment of property (sec.206, 421, 424)

(ii)Fraudulent claim to property to prevent seizure (sec. 207).

(iii)Fraudulent suffering or obtaining a decree (sec. 208 and 210)

(iv)Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242

and 243).

(v)Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)

(vi)Fraudulent acts relating to stamps (sec. 261-261)

(vii)Fraudulent use of false instruments/weight/measure (sec.264 to 266)

(viii)Cheating (sec. 415 to 420)

(ix)Fraudulent prevention of debt being available to creditors (sec. 422).

(x)Fraudulent execution of deed of transfer containing false statement of

consideration (sec. 423).

(xi)Forgery making or executing a false document (sec. 463 to 471 and 474)

(xii)Fraudulent cancellation/destruction of valuable security etc.(sec. 477)

(xiii)Fraudulently going through marriage ceremony (sec.496).

It follows therefore that by merely alleging or showing that a person acted

fraudulently, it cannot be assumed that he committed an offence

punishable under the Code or any other law, unless that fraudulent act is

specified to be an offence under the Code or other law.

Section 504 of Penal Code

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17.The allegations in the complaint do not also made out the

ingredients of an offence under section 504 of the Penal Code. Section 504

refers to intentional insult with intent to provoke breach of peace. The

allegation in the complainant is that when he enquired with accused 1 and

2 about the sale deeds, they asserted that they will obtain possession of

land under the sale deeds and he can do whatever he wants. The statement

attributed to appellants 1 and 2, it cannot be said to amount to an “insult

with intent to provoke breach of peace”. The statement attributed to

accused, even if it was true, was merely a statement referring to the

consequence of execution of the sale deeds by first appellant in favour of

the second appellant.

Conclusion

18.The averments in the complaint if assumed to be true, do not make

out any offence under sections 420, 467, 471 and 504 of the Code, but may

technically show the ingredients of offences of wrongful restraint under

section 341 and causing hurt under section 323 of IPC.

19.For the reasons stated above, the appeal is allowed in part. The

order of the High Court is set aside. The order dated 14.12.2005 of the

learned Sub-Divisional Magistrate is quashed insofar as offences under

sections 420, 467, 471 and 504 IPC. Consequently, the charges framed

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under those sections are also quashed. The order dated 14.12.2005 and the

charges in so far as the offence under sections 323 and 341 IPC are left

undisturbed. The appeal is allowed in part accordingly.

…………………………..J

[R. V. Raveendran]

…………………………..J

[R. M. Lodha]

New Delhi;

September 4, 2009