# Munna Lal & Ors v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019
- **Case number:** Criminal Misc. Application No.8408 of 2017
- **Bench:** Rajul Bhargava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-lal-ors-v-state-of-u-p-anr-44871
- **Pages:** 7

## Headnote

A. Criminal Law -Indian Penal Code,
1860 - Section 464 of IPC - Ingredients-
`false documents' - Not sufficient that a
document
has
been
3 All. Munna Lal & Ors.Vs. State of U.P. & Anr.
103
made
or
executed
dishonestly
or
fraudulently - 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.

B. Criminal Law -Indian Penal Code, 1860 -
Section 464 of IPC - Ingredients- `false
documents' - Registered Sale Deed -
Allegation of executing a false document
against the bona fide purchaser for
consideration.
Non-applicant,
executed
registered sale deed in favour of applicant
no. 3 in his capacity as the owner of the
property, a part of which he is not the
owner - Execution of such document is not
execution of a false document as defined
under section 464 of IPC and section 467
& 471 IPC not attracted.

No offence of cheating or forgery on the part
of the accused who is a bona fide purchaser
for consideration- Ingredients of cheating as
stated in section 415 IPC not found from the
allegations of the Complainant. (Clarifying) - 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 against
the purchaser. (Para 8,14,15,18,19,20 & 21)

Application u/s 482 Cr.P.C. allowed. (E-3)

List of cases cited: -

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES
persons presuming that oral evidence on
behalf of first informant was adduced on
protest petition, which is possible only when
the protest petition was ordered to be treated
as a complaint. The record shows that
neither protest petition was ordered to be
registered as complaint nor any oral
evidence of the witnesses was recorded.
Summoning of the accused persons on the
basis of the oral evidence indicates that the
Magistrate was satisfied with the fact that in
evidence collected by the I.O, there was no
sufficient material for taking cognizance. The
learned Magistrate has also observed that the
I.O. has committed a mistake in not recording
the evidence of other witnesses. Summoning
is also based on facts mentioned in the
protest petition and documentary evidence, as
mentioned in the order impugned which is
erroneous in view of the law cited above."

(Emphasis added)

28. In Writ Petition- Misc. Single
No. 3776 of 2012, Mohammad Shafiq
Khan and others Vs. State of U.P. and
others, decided on 24.03.2014, Court, in
para 9, held as under:

"9. Therefore, it is clear from
the above that the Magistrate on the
basis of protest petition can reject the
final report, he may treat the protest
petition as complaint, he may also direct
for further investigation. But in the facts
of this case the Magistrate while
rejecting the final report has also taken
into consideration the affidavits filed
along with protest petition and this
approach of the Magistrate was not in
accordance with law." (Emphasis added)

29. Looking to exposition of law,
discussed above, I find that in the present
case Magistrate has not referred to any
material placed before him as collected by
Investigating Officer. Instead it has
rejected final report on the basis of facts
stated in Protest Petition and thereafter
summoned accused-applicant. Magistrate
has not given any reason for rejecting
Police report and nothing has been said in
this regard. This approach on the part of
Magistrate, I find is contrary to what has
been laid down in the above authorities
and the same cannot be sustained.

30. In the result, application is
allowed.
Impugned
orders
dated
09.05.2003, 16.08.2003 and 12.09.2003
and further proceedings in Case Crime
No. 163 of 2000, under Sections 427,
166, 392 IPC, Police Station Tilhar,
District Shahjahanpur, pending in the
Court of Civil Judge, Junior Division,
Tilhar, Shahjahanpur are hereby set aside.
----------
(2019)11ILR A102

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA , J.

Criminal Misc. Application No.8408 of 2017
u/s 482 Cr.P.C.

Munna Lal & Ors ...Applicants
Versus
State of U.P. & Anr ...Opposite Parties

Counsel for the Applicants:
Sri Shiv Nath Singh, Sri Satyam Singh, Sri
D.P.S. Chauhan.

Counsel for the Opposite Parties:
A.G.A., Sri Keshari Nandan Singh

A. Criminal Law -Indian Penal Code,
1860 - Section 464 of IPC - Ingredients-
`false documents' - Not sufficient that a
document
has
been
3 All. Munna Lal & Ors.Vs. State of U.P. & Anr.
103
made
or
executed
dishonestly
or
fraudulently - 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.

B. Criminal Law -Indian Penal Code, 1860 -
Section 464 of IPC - Ingredients- `false
documents' - Registered Sale Deed -
Allegation of executing a false document
against the bona fide purchaser for
consideration.
Non-applicant,
executed
registered sale deed in favour of applicant
no. 3 in his capacity as the owner of the
property, a part of which he is not the
owner - Execution of such document is not
execution of a false document as defined
under section 464 of IPC and section 467
& 471 IPC not attracted.

No offence of cheating or forgery on the part
of the accused who is a bona fide purchaser
for consideration- Ingredients of cheating as
stated in section 415 IPC not found from the
allegations of the Complainant. (Clarifying) - 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 against
the purchaser. (Para 8,14,15,18,19,20 & 21)

Application u/s 482 Cr.P.C. allowed. (E-3)

List of cases cited: -
1. G. Sagar Suri Vs St. of U.P. (2000) SCC 636

2. Indian Oil Corp. Vs NEPC India Ltd. (2006)
6 SCC 736

(Delivered by Hon'ble Rajul Bhargava, J. )

1. Supplementary affidavit filed by
learned counsel for the applicants is taken
on record.

2. The present application under
Section 482 Cr.P.C. has been filed with
the prayer to quash the entire proceedings
of Complaint Case No.3610 of 2016
(Chaman Kumar Satyarthi v. Shiv Kumar
and others), pending in the court of
Additional
Chief
Metropolitan
Magistrate, Court No.3, Kanpur Nagar as
well
as
summoning
order
dated
12.8.2016.

3. Heard Sri Shiv Nath Singh,
learned Senior Advocate assisted by Sri
D.P.S. Chauhan, learned counsel for the
applicants, Sri Keshari Nandan Singh,
learned counsel for opposite party no.2 as
well as learned A.G.A. for the State and
perused the record.

4. In brief, the background of the
case is that the opposite party no.2 moved
an application under Section 156(3)
Cr.P.C. before the C.M.M., Kanpur Nagar
for
lodging
of
F.I.R.
against
the
applicants and two others, however, the
same was treated as a complaint case by
the Magistrate. It is alleged in the
application that the cousin brother of
opposite party no.2 and his wife Smt.
Kamla Devi executed a sale deed of a
joint property, a part of which belongs to
his father by a registered sale deed on
18.12.2013 and besides their own share
also sold 48 square yards of the land
belonging to his father and, thus,
committed forgery. It is further stated that
the applicants who are the vendees of the
aforesaid
sale
deed
after
hatching
conspiracy
committed
forgery
by
executing unregistered sale deed of a part
of House No.35 belonging to his father on
which eight shops existed and thereafter
extended threats to the tenants of the
aforesaid shops and also attempted to get
the tenants evicted from the same. In the
104 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid manner, the applicants and other
co-accused have committed cheating and
forgery and they are intended to take
illegal possession over the rented shops
belonging to his father. After recording
statements under Sections 200 and 202
Cr.P.C. of the witnesses, the Magistrate
summoned the applicants and other coaccused under Sections 419, 420, 468,
471 I.P.C. The applicants have challenged
the
impugned
complaint
and
the
summoning order on the ground that even
if the entire allegations contained in the
complaint and in the statements recorded
under Sections 200 and 202 Cr.P.C. are
accepted to be true on its face value,
neither any offence of cheating nor of
forgery is made out.

5. Before submitting legal submissions,
learned Senior Advocate has submitted brief
facts of the case in order to understand the
entire controversy between the applicants and
opposite party no.2. In para 9 of the affidavit,
it is stated that the disputed House No.35
belonged to one Smt. Mohaniya and after her
death the same devolved on her sons namely
Heera Lal an Sunder Lal. The opposite party
no.2, Chaman Kumar Satyarthi is the son of
Sunder Lal, whereas, non-applicant, Shiv
Kumar is the son of Heera Lal and both the
brothers had half shares in the aforesaid
house. The non-applicant, Shiv Kumar
executed a sale deed of his share in favour of
applicant
no.3,
Smt.
Manorama.
The
applicant no.1, Munna Lal and his son, Sunny
were contesting the cases on behalf of Smt.
Manorama. It is categorically stated that the
applicant nos. 1 and 2 had nothing to do with
the property, except, they were pleading the
cases of Smt. Manorama in the Rent Control
Act and other matters.

6. Learned counsel for opposite
party no.2 has argued that in fact, prima
facie, offences of cheating and forgery are
made out against the applicants and other
co-accused,
inasmuch
as,
the
nonapplicant, Shiv Kumar knowing fully well
that he is the owner of only half of the
share of House No.35, yet with a
wrongful intention in order to make
wrongful gain to himself and wrongful
loss to opposite party no.2 executed a sale
deed more than that of his share on which
eight shops existed and the rent was being
collected by his father. He further submits
that the applicants in collusion with other
co-accused
had
also
instituted
proceedings before the Rent Control
Court claiming themselves to be owner of
the shop and by misrepresentation and
playing fraud upon the court got certain
orders from the Rent Control Court.
Learned counsel has also given details of
the manner in which the applicants on the
basis of forged unregistered sale deed of
eight shops belonging to his father
attempted to obtain eviction of the
tenants. He further argues that it is well
settled that even if the dispute between
the parties is partly civil in nature and
also contains the ingredients of criminal
nature and if it is so, they can also be tried
by criminal courts. In the present case as
the offence of cheating and forgery is,
prima facie, established, therefore, the
submission of learned counsel for the
applicants cannot be accepted that the
present
proceedings
instituted
on
complaint are not maintainable. Thus, the
application is bereft of any merits and the
same is liable to be dismissed.

7. Learned Senior Advocate has
argued that there is no dispute that nonapplicant, Shiv Kumar has inherited the
share of his father Heera Lal and also had
a joint ownership in House No.35 along
with opposite party no.2. Even if, for the
3 All. Munna Lal & Ors.Vs. State of U.P. & Anr.
105
sake of argument, the averments made in
the complaint are assumed to be true that
non-applicant, Shiv Kumar executed
registered sale deed in favour of Smt.
Manorama more than that of his share
measuring 48 square yards on which
certain shops existed, then neither offence
of cheating nor forgery on the part of the
accused is attracted. There is no evidence
of hatching any conspiracy against the
applicant no.3 who is in fact a bona fide
purchaser for consideration.

8. Therefore, the question arises for
consideration is whether the material on
record, prima facie, constitute any offence
against the accused. The contention of
learned counsel for the applicants is that
if the allegations made in the complaint
and in the statements in support thereof,
even if accepted to be true in entirety does
not disclose the ingredients of any offence
of forgery under Sections 467, 468, 471
or cheating under Section 420 I.P.C. At
the very outset, I may record that the
Hon'ble Apex 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 pressurize
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. Reference may be made to the
judgment rendered by the Hon'ble Apex
Court in G. Sagar Suri v. State of U.P.
(2000)
SCC 636
and
Indian
Oil
Corporation v. NEPC India Ltd. (2006) 6
SCC 736.

9. According to applicants, the sale
deed executed by non-applicant, Shiv
Kumar obviously does not fall in any of
the
category
of
making
of
false
documents,
even
for
the
sake
of
arguments it is accepted that he has
executed a sale deed of the joint property
more than of his share i.e. 48 square yards
and then the applicants/vendees attempted
to get the tenants evicted on the basis of
the aforesaid sale deed. In the present
case, it is not disputed by opposite party
no.2 that non-applicant, Shiv Kumar has
not acted as an impostor of opposite party
no.2 or his father but he executed the sale
deed in his capacity as the owner of the
property.

10. 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,
106 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

[Note:
The
words
`digital
signature' wherever it occurs were
substituted by the words `electronic
signature' by Amendment Act 10 of
2009]." (emphasis supplied)

11. 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
non-applicant,
Shiv
Kumar, in executing and registering the
sale deed purporting to sell a part of the
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. An analysis of section 464 of
Penal Code shows that it divides false
documents into three categories:

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 authorized by someone
else; or (ii) he altered or tampered a
document; or (iii) he obtained a document
by practising deception, or from a person
not in control of his senses.

13. 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-opposite party no.2 that the
execution of sale deed by Shiv Kumar
who was in no way connected with a part
of joint property, amounted to committing
forgery of the documents with the
intention of wrongful gain to himself in
collusion with the applicants would bring
the case under the first category.
3 All. Munna Lal & Ors.Vs. State of U.P. & Anr.
107

14.

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 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.

15. 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 a part of which he
is not the owner as alleged 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.

16. 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
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.

17. 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).

18. 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
108 INDIAN LAW REPORTS ALLAHABAD SERIES
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 i.e.
applicants.

19. 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 non-applicant 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.

20. 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

21. When it is stated 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, it 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.

22. In the light of aforesaid, the
averments made in the complaint if
assumed to be true do not make any
offence under Section 419, 420, 468, 471
I.P.C. and, therefore, the continuance of
the proceedings arising out of the
impugned complaint is nothing but an
abuse of process of court and, thus, in the
exercise of inherent power, I deem it fit to
quash the impugned complaint and the
summoning order.

23. Considering the overall facts and
circumstances of the case and taking the
entire allegations made in the complaint
and in the statements recorded under
Sections 200 and 202 Cr.P.C., this Court
is satisfied that, prima facie, commission
of cognizable offence is not made out
against the applicants and non-applicant,
Shiv Kumar and his wife Smt. Kamla
Devi.

24 . Accordingly, the complaint and
the
proceedings
arising
therefrom
including the summoning order are
hereby quashed.

The present application under
Section 482 Cr.P.C. is, accordingly,
allowed.
----------
(2019)11ILR A108

ORIGINAL JURISDICTION
CRIMINAL SIDE