Dismissed

Kulwant Singh v. Balvir Kaur & Ors.

Punjab & Haryana HC25 Oct 2010CRM-M/12648/2009

Case brief

AI extract

What is this about?

Criminal Misc. petition filed by a complainant alleging that the legal heirs of a property owner sold land already sold to him, committing forgery and cheating. The High Court upheld lower courts findings that the dispute is civil in nature, holding that selling property by a non-owner without impersonating the owner is not forgery.

What did the court decide?

Revision petition dismissed; impugned orders of Judicial Magistrate and Additional Sessions Judge upheld.

Kulwant Singh Vs Balvir Kaur & Ors. — Property and Title | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Misc. No. M-12648 of 2009

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Date of decision: 25^th October, 2010

Kulwant Singh

… Petitioner

Versus

Balvir Kaur and others

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… Respondents

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CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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Present: Mr. M.K. Garg, Advocate for the petitioner. Mr. K.S. Sidhu, Advocate for Mr. S.P.S. Sidhu, Advocate for the respondents.

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KANWALJIT SINGH AHLUWALIA, J.

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Petitioner had instituted a complaint in the Court of Judicial Magistrate (1st Class), Moga against the accused respondents for offence punishable under Sections 420, 465, 467, 471, 424, 406, 148 and 149 IPC on 3^rd September, 2005. The Court of Judicial Magistrate (1st Class), Moga vide impugned order (Annexure P-1) dated 7^th July, 2007 refused to summon the accused and dismissed the complaint. Aggrieved against the same, the petitioner filed a revision petition and the same was also dismissed by the Court of Additional Sessions Judge, Moga vide impugned order (Annexure P-2) dated 21^st January, 2009, whereby the order passed by Judicial Magistrate (1st Class), Moga was upheld. As a result thereof, present petition has been instituted.

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In the complaint, it was stated that Mangal Singh, husband of accused No.1-Balvir Kaur and father of accused No.2 to 5, was the owner of 11 kanals 16 marlas of land, the description of which was given in the

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Criminal Misc. No. M-12648 of 2009

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first para of the complaint. It was stated that Mangal Singh had sold 2 kanals 19 marlas of land to the extent of his share vide a sale deed dated 5^th June, 1978 for a valuable consideration of Rs.4,000/- in favour of the complainant-petitioner and his brother Jagsir Singh, and in pursuance of the sale deed, they had taken possession of the land also. On 6^th January, 2004, Balvinder Singh-accused No.6, on his behalf and acting as a General Power of Attorney of accused No.1 to 5, had sold this very land to accused No.7-Ajmer Singh son of Ishar Singh. It is stated that this was done by accused No.6-Balvinder Singh, knowing fully well that the land in question had already been sold to the petitioner and his brother by Mangal Singh, father of accused No.2 to 5 and husband of accused No.1, vide a sale deed dated 5^th June, 1978. It was further stated that accused No.7-Ajmer Singh, the subsequent purchaser had taken possession of the land forcibly. In support of the pleadings made in the complaint, the complainant himself appeared as PW-2 and examined Gurbax Singh as PW-1 and Jagsir Singh as PW-3. He also proved the sale deed dated 5^th June, 1978 and the subsequent sale deed dated 6^th January, 2004. The complaint was dismissed by the Magistrate by observing as under:

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“4. The main allegations leveled by the complainant against the accused are that the accused No.5 appointed his father as attorney of accused No.1 to 5 fraudulently and executed a sale deed of property of Mangal Singh, father of accused No.2 to 5 and husband of accused No.1 in favour of accused No.7 Ajmer Singh knowing well that property was already sold to complainant and his brother. In this way, all the accused have committed offence of forgery and cheating. It is relevant to mention here that the alleged forged power of attorney is not on the record. Thus where the alleged forged document has not come on the record on which the whole case is based, it cannot be said that accused persons committed forgery. So far as sale deed dated 6.1.2004 is concerned, there is nothing on the

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Criminal Misc. No. M-12648 of 2009

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record which could prima facie show that this document has been forged by the accused persons. The ingredients of cheating are not made out. If the complainant has a sale deed in his favour, he can challenge the other sale deed alleged to be of same property, in civil Court. The dispute is purely of civil nature. No offence of cheating or forgery is made out.”

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The revisional Court upheld the above said findings and had dismissed the revision petition.

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I have heard counsel for the parties.

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The case set out by the petitioner-complainant is that accused No.1 to 6 are the legal heirs of Mangal Singh. Mangal Singh had earlier sold the land measuring 2 kanals 19 marlas vide a sale deed dated 5^th June, 1978 to the complainant and his brother Jagsir Singh. Subsequently, his legal heirs sold this land vide another sale deed dated 6^th January, 2004 to accused No.7-Ajmer Singh. It is case of the complainant that accused No.1 to 6 were in knowledge of the fact that Mangal Singh had sold the land to him, therefore, by subsequently selling the land they have committed an offence of cheating. In the complaint, it has nowhere been stated that such a document was allegedly forged or fabricated. Execution of the subsequent sale deed, in itself will not constitute an offence of forgery or fraud. At the most it can be said that those, who executed the sale deed, were not owner of the property and no title or ownership vested in them. Therefore, they were not competent to execute the subsequent sale deed. This, in itself will not constitute an act of forgery or fraud. Furthermore, it is the subsequent purchaser, i.e. accused No.7-Ajmer Singh, to whom the land was sold, who has been cheated. He has made no grievance of this fact. On the facts of the case, the ratio of law laid down by Hon’ble the Apex Court in ‘Mohd. Ibrahim

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and others v. State of Bihar and another’ 2009 (4) RCR (Criminal) 369 is applicable. The following observations made by Hon’ble the Apex Court in Mohd. Ibrahim’s case (supra) justify the conclusion arrived at by both the Courts below:

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“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. State of U.P., 2000(1) RCR(Criminal) 707 : [2000(2) SCC 636] and Indian Oil Corporation v. NEPC India Ltd., 2006 (3) RCR(Criminal) 740 : 2006(2) Apex Criminal 637 : [2006(6) SCC 736]. Let us examine the matter keeping the said principles in mind.

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XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 9. ... … … ... The condition precedent for an

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9. ... … … ... 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

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other accused.

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XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX

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Criminal Misc. No. M-12648 of 2009

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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 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 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.

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XXXX XXXX XXXX XXXX

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Criminal Misc. No. M-12648 of 2009

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XXXX XXXX XXXX XXXX

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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 coaccused. 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.

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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

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defined in the 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 v. Delhi Administration, AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus :

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‘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.’

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The above definition was in essence reiterated in State of U.P. v. Ranjit Singh, 1999(2) RCR(Criminal) 40 : 1999(2) SCC 617.”

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Thus, no fault can be found with the orders passed by both the Courts below. Hence, no interference is warranted in the present petition and the same is hereby dismissed.

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[KANWALJIT SINGH AHLUWALIA] JUDGE

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October 25, 2010 rps

Kulwant Singh v. Balvir Kaur & Ors.

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Kulwant Singh v. Balvir Kaur & Ors.

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