1. In this petition filed under Section 482 of Cr.P.C, petitioner/A1 seeks to quash proceedings against him in Crime No.212/2019 of V. Satram Police Station, SPSR Nellore District for the offences under Sections 120-B, 471, 468, 447, 427, 379 r/w.Sec.34 of IPC and Sec.156(3) of Cr.P.C.
2. The private complaint filed by 2nd respondent herein, was referred to Police by learned IV Additional Judicial Magistrate of First Class, Nellore under Section 156(3) of Cr.P.C for investigation, which was registered as Crime No.212/2019 and investigation is reported pending.
3. The brief facts of the complaint are that the complaint schedule mentioned land in an extent Ac.4.82 cents in S.No.58/3 situated in Idimepalli Village, Venkatachalam Mandal, SPSR Nellore District and some other property originally belonged to one Pamuru Pitchi-Reddy and after his demise, the said property was devolved on his progeny. The complainant is the great grandson of late P. Pitchi-Reddy. The complaint mentioned Ac.4.82 cents ultimately devolved on the complainant and one Raghunadha Reddy who is another great grandson of late P. Pitchi Reddy. Out of said land, Ac.1.20 cents was surrendered in the land ceiling proceedings and remaining Rs.3.62 cents is in joint possession of the complainant and Raghunadha Reddy. While so, the complainant s grievance is that, all the accused conspired together to obtain a wrongful gain and in that process, 1st accused represented by GPA holder executed a Registered Sale Deed dated 06.04.2017 vide document No.1095/2017 in respect of Ac.2.40 cents in S.No.58/3 in favour of a Firm M/s. Sai Traders wherein 2nd and 3rd accused are partners, though 1st accused has no right, title and interest in the said property and in fact the said property belong to the complainant and others. It is further alleged that A1 to A4 brought into existence, fabricated Survey Map showing as if there was a sub-division of S.No.58/3 into S.No.53/3-2 covering an extent of Ac.2.40 cents, but indeed there was no such sub-division and no proceedings were initiated by Tahsildar, V. Satram Mandal in that regard. Basing on the said collusive sale deed dated 06.04.2017, A2 and A3 highhandedly trespassed into the complaint schedule land and demolished the tombs of the ancestors of the complainant and trees worth Rs.1,00,000/-. As stated supra, the said private complaint was forwarded by learned Magistrate to the Police which was registered as Crime.
Hence the Criminal Petition.
4. Heard learned counsel Sri Dammalapati Srinivas for Sri Gunjapalli Subba Rao, learned counsel for petitioner and learned counsel for respondent No.2/defacto complainant and learned Additional Public Prosecutor.
5. Fulminating the complaint allegations as false and motivated, learned counsel for petitioner Sri Dammalapati Srinivas, would firstly argue that the complaint allegations, even if accepted to be true, they would disclose civil dispute between the parties and in fact, already civil suits are pending against both the parties. For instance, O.S.No.211/2018 is filed before District Judge, SPSR Nellore by the defacto complainant and others against the accused for declaration and recovery of possession of the complaint schedule property whereas, O.S.No.351/2018 is filed before III Additional Junior Civil Judge, SPSR Nellore by A2 and A3 against the defacto complainant and others for permanent injunction in respect of the same property. In view of pure civil nature of the dispute, learned Magistrate ought not to have entertained the complaint and forwarded to Police for investigation.
(a) Nextly, he would vehemently argue that the complaint allegations even if un-traversed, would not disclose the offences under Sections 464, 467 and 471 of the IPC for the reason that execution of a document by a person in respect of the property to which he is not the owner, would not attract those offences. On this aspect, he placed reliance on Mohammed Ibrahim and others vs. State of Bihar and another, (2009) 8 SCC 751. Thus, with regard to the maintainability of the criminal complaint as a whole, his argument is that whether accused No.1 executed Registered Sale Deed without having title or not can be decided only in the civil suit but not by the investigating agency. He would thus submit that the continuation of the criminal proceedings is nothing but abuse of process of the Court and therefore the F.I.R is liable to be quashed.
(b) Thirdly, pointing out the technical laches in the matter of referring the complaint to Police, he strenuously argued that the learned Magistrate has simply forwarded the complaint to the Police under Section 156(3) of Cr.P.C without clearly mentioning in his order as to what facts and circumstances have weighed in his mind for referring the complaint to the Police, which is the sine quo non to transmit the complaint to the Police for investigation. Since no such reasoned order was passed by the Magistrate, he argued, the F.I.R is liable to be quashed. He relied upon the order of this Court dated 28.08.2019 in Crl.P.No.4229/2019 (Kaluva Kumar and others vs. State of Andhra Pradesh) and the order dated 30.08.2019 in Crl.P.Nos.4560 & 4642/2019 (M. Hanumantha Rao vs. State of Andhra Pradesh).
6. He would further argue that the complainant is required to file a sworn affidavit in support of the complaint allegations as observed by the apex Court in Priyanka Srivastava vs. State of Uttar Pradesh, (2015) Lawsuit(SC) 335 and in the instant case, since the complainant did not file his sworn affidavit, learned Magistrate ought not to have forwarded the complaint to the Police. He thus, prayed to quash the proceedings.
7. Per contra, learned counsel for defacto complainant and learned Additional Public Prosecutor would argue, the complaint allegations amply disclosed the offences committed by the A1, in as much as, he executed sale deed in respect of Ac.2.40 cents of land without having any right, title or interest therein and with the aid of such a sham and collusive document, A2 and A3 who are the purchasers and their men have trespassed into the schedule land illegally and created mischief. The complaint allegations since pellucidely disclose the offences committed by all the accused collectively, investigation into the offences is very much essential. They would argue that mere pendency of the civil suits is not a bar for entertaining the criminal proceedings if the acts of the accused disclose criminal offences in addition to actionable civil wrong. Thus, both the counsel supported the registration of FIR against the accused. They further argued that while forwarding a complaint under Section 156(3) of Cr.P.C at the pre cognizance stage, a Magistrate need not give any elaborate reasons. Suffice if he mentions the purpose for which the complaint is forwarded. In the instant case, they would argue, learned Magistrate has clearly stated in his order that upon perusal of the contents of the complaint and other documents and on considering the facts, he was forwarding the complaint to the S.H.O for investigation under Section 156(3) of Cr.P.C. Hence, it can be safely held that he passed a reasoned order to the extent required and therefore no defect can be pointed out in the impugned order. They further argued that non-filing of sworn affidavit by the complainant is only a curable defect and therefore the Magistrate can obtain such affidavit from the complainant at any stage of the case. They argued that technical defects are concerned, this Court can remand the matter to learned Magistrate to pass a reasoned order on the private complaint and also obtain sworn affidavit from the complainant and again forward the complaint to Police for investigation. They prayed to dismiss the petition.
8. The point for consideration is whether there are merits in the criminal petition to allow?
9. It should be noted, in the decision State of Haryana and others v. Ch. Bhajan Lal and others, (1992) AIR SC 604, the Apex Court has laid down the following guidelines as to when the High Court can exercise its plenary powers under Section 482 Cr.P.C. to quash the proceedings to prevent abuse of process of the Court. They are:
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
10. As can be seen, the first guideline is to the effect that even if the complaint allegations are accepted to be true on their face value, if they do not constitute an offence, then the FIR can be quashed. On this touch stone, when the complaint allegations are perused, the pivotal allegation is that the petitioner/A1 without having any right, title and interest in the complaint mentioned Ac.2.40 cents, executed a sham and collusive sale deed dated 06.04.2017 vide D.No.1095/2017 in favour of A2 and A3 and they trespassed into the subject land and committed mischief. Admittedly, rival suits are pending between the parties. The 2nd and 3rd accused filed O.S.No.351/2019 on the file of III Additional Junior Civil Judge, SPSR Nellore against the defacto complainant and others seeking perpetual injunction decree in respect of Ac.2.40 cents of the land purchased by them from the petitioner/A1. In the said suit, their version is that petitioner/A1, who is their vendor, purchased the said property from one Ballela Kota Reddy S/o. Rama Chandra Reddy under a registered Sale Deed dated 07.10.1983 vide registered document No.1271/1983, SRO, Guduru; the said Bellala Kota Reddy inturn purchased the said land from one Kattamreddy Jaya Ramireddy, S/o.Atchi Reddy of Edagali Village under Sale Deed dated 27.07.1968; the said K. Jaya Rami Reddy got the said property from his paternal aunt Arava Bhoomi Rangamma @ Meenamma W/o. Venku Reddy under a Registered Settlement Deed dated 14.03.1961 vide document No.624/1961, SRO, Nellore. Originally, the said land was the ancestral property of A. Rangamma. That is how, A2 and A3 traced the title to the property which they purchased from petitioner/A1.
11. In contrast, the defacto complainant and others filed O.S.No.211/2018 against the accused and others on the file of District Judge, Nellore seeking the reliefs of declaration and recovery of possession of the very same property. Thus, it is needless to emphasis that in both the suits, the fundamental issue would be whether petitioner/A1 had had right, title and interest in the property in an extent of Ac.2.40 cents in S.No.58/3 and whether the sale deed executed by him in favour of A2 and A3 was valid one. It is trite law that civil Court alone is competent to adjudicate upon the bonafide dispute of title between the parties. As rightly argued by learned counsel for petitioner, such a decisive power is not vested in the investigating agency. In that view, as the civil suits are pending for adjudication wherein the title of A1 is an issue, at this stage, even if complaint allegations are taken into consideration, one cannot conclude prima-facie, the accused have committed the offence. It is a cardinal principle that when the complaint allegations essentially disclose a civil dispute and not a criminal offence, continuation of the criminal proceedings would amount to abuse of process of Court.
12. On another ground also the complaint/FIR is not sustainable. The offences alleged against the petitioner/A1 are basically under Sections 471 and 468 of IPC only as the main allegation against petitioner/A1 is that he executed the sale deed in favour of A2 and A3 in respect of a property which does not belong to him. Therefore, the issue is, assuming complaint allegations are un-controverted, whether the offences under Section 471 and 468 of IPC are made out against him.
Section 468 of IPC reads thus, whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.
Section 471 of IPC reads thus, whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record shall be punished in the same manner as if he had forged such document or electronic record.
13. The essential ingredient in both the above offences is the forgery. The question then is whether a person who proclaim himself to be owner of a property but factually not and sells the property can be said to have committed the act of forgery within the ambit of above sections. In identically similar fact situation Hon ble apex Court in Mohammed Ibrahim s case (1 supra) held thus;
16. 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.
17. 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 n
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ot 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. Going by the above ratio, since there is no impersonation involved, it can be said that the offences under Sections 468 & 471 of IPC are not attracted in this case. In that view also the continuation of criminal proceedings would amount to abuse of process of the Court. 14. So far as the contention of the petitioner/A1 regarding technical grounds is concerned, these are curable defects as observed in Anne Srinivasa Rao vs. State of Telangana and another, (2017) 2 ALD(Cri) 139. In such an event, this Court can set aside the FIR and remit the matter to the learned Magistrate and direct him to pass an order by application of mind to the facts in issue and also obtain a sworn affidavit of the complainant in terms of the decision in Priyanka s case (2 supra) and refer the matter to concerned Police for investigation. However, in the instant case, such a direction cannot be given for rectification of the technical errors, for the reason that even if the complaint allegations are taken to be true, no offences under Section 468 and 471 of IPC could be made out against the petitioner/A1 and further, the complaint allegations disclose only a civil dispute. In that view of the matter, the FIR deserves quash. 15. Accordingly, the Criminal Petition is allowed and the proceedings in Crime No.212/2019 registered in V. Satram Police Station, SPSR Nellore District are quashed so far as the petitioner/A1 is concerned. As a sequel, Interlocutory Applications pending if any, shall stand closed.