Asha w/o Mukundan v. Anitha K.R. and Ramesh K.R.

CRL.A.No.933 OF 2005 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942** **CRL.A.No.933 OF 2005** **AGAINST THE JUDGMENT IN CC 54/2002 DATED 15-03-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ALUVA** ## **APPELLANT/COMPLAINANT:** **ASHA W/O.MUKUNDAN, MAROTTIKAL HOUSE, ERATTAKULANGARA ROAD, PACHALAM, KOCHI 12.** **BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR** ## **RESPONDENTS/ACCUSED:** **1 ANITHA.K.R. W/O.K.R.RAMESH, KALAZHATHU VEEDU, PLASSERYPARAMBU, ELAMAKKARA. 2 RAMESH K.R, KALAZHATHU VEEDU, PLASSERYPARAMBU, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE.** **R1-2 BY ADV. SRI.S.B.PREMACHANDRA PRABHU R1-2 BY ADV. SRI.K.A.SHAJI MATHEW** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.933 OF 2005 2 ## **JUDGMENT** ## **Dated this the 15th day of June 2020** The above appeal is filed by the complainant in C.C.No.54/2002 on the file of the Judicial First Class Magistrate Court II, Aluva. It is a private complaint filed by the appellant against respondent Nos.1 and 2 alleging offence punishable under Sections 420, 423, 467, 468, 471 r/w 34 IPC. (Hereinafter the parties are mentioned in accordance to their rank before the lower Court). 2. The case of the complainant before the lower Court can be summarised like this: Originally there were six accused in the private complaint. 1[st] accused is the direct sister of the complainant, and the 6[th] accused is the husband of 1[st] accused. The other accused are the assigners of the 1[st] accused. As per the partition deed No.1021/1976 of Sub Registry, Kochi dated 22.4.1976 the complainant received a property having an extend of 31 cents. As per the very same document 1[st] accused had also received a property having an extend of 31 cents. The case of the complainant is that the 1[st] accused in connivance with her husband 6[th] accused, dishonestly forged some documents and CRL.A.No.933 OF 2005 3 assigned some portion of the land allotted to the complainant as per the partition deed referred to above to the other accused. Therefore, it is alleged that the accused committed the offences. The Court took cognizance only against two accused. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P10 documents marked on the side of the complainant. Exts.D1 to D4 are the exhibits marked on the side of the accused. Exts.X1 to X6 are also marked. 4. Ongoing through the evidence and the documents, the trial court found that the accused has not committed the offence and accordingly acquitted the accused under Section 248(1) Cr.P.C. Aggrieved by the acquittal order, this appeal is filed. 5. The learned counsel for the appellant submitted that the offences alleged against the accused are made out in this case and the trial court wrongly acquitted the accused. The learned counsel for the respondent submitted that even if the entire allegations are accepted, no offence is made out against the appellant. Even if, the case of the complainant is accepted, according to the counsel, it is only a civil dispute in which no criminal offence is made out. The counsel also relied on the judgment of the Apex Court in **Md.Ibrahim and Ors v. State of Bihar and Ors. [(2009)8 SCC 751]** . CRL.A.No.933 OF 2005 4 6. After hearing both sides, the point to be decided is whether the acquittal order passed by the trial court after appreciating the evidence available in this case. 7. The complainant's case is that she and the 1[st] accused obtained 31 cents of land each as per Ext.P1 partition deed. The further case of the complainant is that without authority, the 1[st] accused transferred portion of the properties owned by the complainant as per Ext.P2 to P8 documents. According to the complainant, the accused sold the property without having the title. In other words, the case of the complainant is that the accused sold the property in excess of the land obtained by them as per Ext.P1 partition deed. The trial court found that accused No.1 has sold more property than what she had obtained under Ext.P1 partition deed. The question is whether any criminal offence is made out because of the act of the accused. As per Ext.P1 partition deed, the property of the complainant is situated on the eastern side of the property allotted to the 1[st] accused. The trial court found that nothing can be gathered from Exts.P2 to P8 documents to suggest that the property so assigned by the 1[st] accused takes in the property allotted to the complainant herein. The complainant has got a case that it was as per Exts.P7 and P8 documents, 1[st] accused assigned portion of the property allotted to the complainant under Ext.P1 partition deed. But nothing can be CRL.A.No.933 OF 2005 5 gathered from the boundaries mentioned in Exts.P7 and P8 documents to suggest that any portion of the property allotted to the complainant as per Ext.P1 partition deed is covered by the property assigned. There may be some civil dispute between the complainant and the 1[st] respondent. I do not want to make any further comments about the merits of the case. The trial court considered all the aspects and found that no criminal offence is made out in this case. 8. The jurisdiction of this Court to interfere in an appeal against acquittal is limited. Moreover, in almost the same set of facts, the Apex Court observed that no criminal offence is made out. In **Md.Ibrahim'** s case (supra) the Hon'ble Court found like this. The facts of the case are mentioned in paragraph 2 and the discussion is there in paragraphs 10 to 16. Paragraphs 10 to 16 of the above decision is extracted hereunder: “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 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. CRL.A.No.933 OF 2005 6 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 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 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 CRL.A.No.933 OF 2005 7 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 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 Code. The dictionary definition of `fraud' is CRL.A.No.933 OF 2005 8 "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 noneconomic 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 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) CRL.A.No.933 OF 2005 9 (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.” (emphasis supplied) 9. In the light of the above judgment of the Apex Court, especially the underlined portions, no offence is made out against the appellant in this case. The trial court is perfectly justified in acquitting the accused. There is nothing to interfere with the acquittal order of the trial court. Hence this Criminal Appeal is dismissed, confirming the judgment dated 15.3.2005 in C.C.No.54/2002 on the file of the Judicial First Class Magistrate Court II, Aluva. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** **ab**