Sunday, 15 May 2016

When offence of forgery or making of false document is not made out?

The question is whether on the basis of the allegations
levelled by the complainant with respect to the forgery and connected
offences, there are sufficient grounds for proceeding against the
accused persons.
 I find that in the complaint, there is no mention of any
specific document as a forged document. The grievance of the
complainant is basically that the documents on the basis of which the
ownership or possessory rights over the property are claimed, are not
valid in law. The learned counsel for the complainant was unable to
point out any particular document as a “false document” supporting
the allegation of forgery, and his basic contention appears to be that
the recitals in some of the documents, on the basis of which claim of
rights over the property is being made, are false. It is quite
elementary that merely because the recitals in a documents are false,
that would not make it a false document as defined in Section 464 of
the IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2827 OF 2013
Shrikant Purshottam Paranjape & Ors. .. Applicants
Vs.
The State of Maharashtra & Anr. .. Respondents
 CORAM : ABHAY M. THIPSAY, J.
DATED : SEPTEMBER 30, 2014.
Citation;2016 ALLMR(CRI)1394


These two writ petitions and these two revisions
applications can be disposed of conveniently by this common order as
the parties are the same and the challenge in all these proceedings is to
two identical orders dated 5th July, 2013, passed by the learned
Additional Sessions Judge, Pune, in Criminal Revision Application
Nos.535 of 2011 and 536 of 2011.
2 By consent, rule is issued in both the petitions and is
made returnable forthwith. By consent, the revision applications are
admitted and taken up for hearing finally forthwith.
3 The petitioners in criminal writ petition no.2827 of 2013
and 2828 of 2013 are the accused in R.C.C.No.04002464 of 2011,
pending before the Judicial Magistrate, First Class, at Pune. The said
case arises on a complaint filed by the respondent no.2 in these
petitions, who is also the applicant in the revision application nos.347
and 348 of 2013.
4 For the sake of convenience and clarity the respondent
no.2 in the writ petitions who is the applicant in the revision
applications, shall be referred to as 'the complainant'; and the

petitioners in writ petition, who are the respondents in the revision
applications, shall be referred to as 'the accused'.
5 The complainant filed a complaint against the accused
alleging commission of offences punishable under Sections 406 IPC,
409 IPC, 420 IPC, 447 IPC, 454 IPC, 465 IPC, 467 IPC, 468 IPC read
with Section 34 of the IPC. The learned Magistrate, on examining the
complainant on oath and on examining the documents produced by
him, ordered process to be issued against all the accused persons with
respect to the offences punishable under Sections 447 IPC, 454 IPC,
465 IPC, 467 IPC, 468 IPC read with Section 34 of the IPC.
6 Being aggrieved thereby, the accused persons
approached the Court of Sessions by filing two different revision
applications i.e. some of them filed one revision application and some
of them filed the other (Revision Application Nos.535 of 2011 and 536
of 2011). The learned Sessions Judge disposed of both the revision
applications by separate but fully identical orders. The learned
Additional Sessions Judge was of the view that no case for proceeding
with respect to any of the offences against any of the accused, except
the offence punishable under Section 447 of the IPC read with Section
34 of the IPC was made out. He was of the view that a case in respect
of an offence punishable under Section 447 of the IPC was, however,
made out against the accused persons. He, therefore, quashed the
process so far as it related to the other offences but maintained the
process so far as it related to the offence punishable under Section 447
of the IPC.
7 The accused persons were not satisfied with the limited
success which they had before the revisional Court and have therefore
filed the present writ petitions challenging the order passed by the
learned Additional Sessions Judge in revision, insofar as it maintains
the process issued by the Magistrate against the accused persons with
respect to the offence punishable under Section 447 of IPC read with
Section 34 of IPC. The complainant, obviously, is aggrieved by the
order passed by the Sessions Court insofar as it quashed the process
issued against the accused persons with respect to all other offences
except the one punishable under Section 447 of the IPC read with
Section 34 of IPC. This is how these four proceedings arise out of one
and the same order.
8 I have heard Mr.Shirish Gupte, learned counsel for the
accused persons. I have heard Mr.Abhijeet Desai, the learned counsel
for the complainant. With their assistance, I have gone through the
complaint, the other annextures to the petition and more particularly
the order passed by the Magistrate issuing process, as also the order
passed by the learned Additional Sessions Judge in revision.
9 The complainant's case, in brief, is that he owns a certain
land which had been given to his ancestor by the then Governor of
Bombay in the year 1870. That the accused no.1 Sudhir Shankar
Sable, with the help of some anti social-elements, got prepared bogus
documents in respect of the said land, behind the back of the
complainant. That, based on such bogus documents, the accused
persons got his name and also the names of some other accused,
entered into the revenue records as the owners/persons in possession
of the said land. That, when the complainant learnt about these
activities of the accused persons, he filed a civil suit, which is
pending. That, on 24th September, 2005, an interim order to maintain
status-quo has been passed by the civil court. That, inspite of being
aware of this position, the accused persons with the object of
grabbing the property of the complainant unauthorizedly trespassed in
the said land and put construction material on the land. When the
complainant questioned the persons who were found by him on the
site, the complainant was threatened by the accused nos.1 and others.
That, the accused no.1, who was contacted on telephone by the
persons who had trespassed in the land of the complainant, also
threatened the complainant on telephone.
10 Mr.Gupte, learned counsel for the accused persons
contended that the land in question has been validly purchased by the
accused persons. The learned counsel for the complainant, on the
other hand, submitted that the documents on the basis of which the
accused persons are claiming a right over the land in question are
bogus, invalid and inoperative. In the facts and circumstances of the
case, it is not necessary to go into those aspects.
11 The question is whether on the basis of the allegations
levelled by the complainant with respect to the forgery and connected
offences, there are sufficient grounds for proceeding against the
accused persons.
12 I find that in the complaint, there is no mention of any
specific document as a forged document. The grievance of the
complainant is basically that the documents on the basis of which the
ownership or possessory rights over the property are claimed, are not
valid in law. The learned counsel for the complainant was unable to
point out any particular document as a “false document” supporting
the allegation of forgery, and his basic contention appears to be that
the recitals in some of the documents, on the basis of which claim of
rights over the property is being made, are false. It is quite
elementary that merely because the recitals in a documents are false,
that would not make it a false document as defined in Section 464 of
the IPC.
13 I have examined the order passed by the learned
Additional Sessions Judge. He has discussed this aspect of the matter
in paragraphs 11 and 12 of his order.
14 In my opinion, the conclusion arrived at by him –
namely:- that there was no case in respect of an offence of forgery and
the connected offences i.e. forgery of a valuable security, forgery for
the purpose of cheating, etc., is proper and legal. Even before this
Court, the learned counsel for the complainant could not substantiate
the case of forgery. Therefore, the order passed by the Additional
Sessions Judge quashing process with respect to the offences
punishable under Sections 465 IPC, 467 IPC, 468 IPC read with
Section 34 of IPC, is proper and legal.
15 The offence punishable under Section 454 of the IPC
was not disclosed at all from the complaint and the quashing of the
process with respect to that offence, is also proper and legal. In fact,
no arguments in that regard were advanced before this Court.
16 The only question that now remains is whether the order
passed by the Additional Session Judge, insofar as, it maintains the
order issuing process with respect to the offence punishable under
Section 447 of IPC read with Section 34 of IPC, is proper and legal.
17 Section 447 of the IPC provides for punishment for the
offence of criminal trespass which has been defined in Section 441 of
the IPC. Section 441 of IPC reads as under:
'Criminal trespass.- Whoever enters into or upon
property in the possession of another with intent to
commit an offence or to intimidate, insult or annoy
any person in possession of such property,
or having lawfully entered into or upon such
property, unlawfully remains there with intent thereby
to intimidate, insult or annoy any such person, or with
intent to commit an offence,
is said to commit “criminal trespass”.'
18 It is clear that to constitute criminal trespass the entry in
the property in possession of another must be;
(i) with intend to commit an offence;
 or
(ii) to intimidate, insult or annoy any person in possession of the such
property. It is trespass with the requisite intention, as mentioned in the
said section, that would amount to criminal trespass. Here, the case of
the complainant itself is that the trespass allegedly committed by the
accused persons is for the sake of trespass. In other words, the trespass
has, allegedly, been made with the object of grabbing the property by
falsely asserting a right or claim over the same. Whether the right
actually exists or not, is quite immaterial in the context of the
correctness of issue of process. Thus, the acts attributed to the
accused persons would amount to only civil trespass and not criminal
trespass. Unlawfully taking possession of the property in somebody
else's possession, simpliciter, has not been made an offence punishable
under the Indian Penal Code. It is for the Legislature to decide
whether such cases should be made punishable. (There have been
State amendments (Orissa & U.P.) to Section 441 to make trespass
with the intention of taking unauthorised possession of property an
offence). The learned counsel for the complainant attempted to
suggest that even under section 441 of the IPC, as it stands, such
trespass would amount to criminal trespass, but I am unable to agree
with him. If this theory is accepted, the distinction between civil
trespass and criminal trespass would be abolished and every trespass
can be termed as 'criminal trespass'.
19 In the result, I find that the order passed by the
Additional Sessions Judge, insofar as it maintains the order issuing
process with respect to the offence punishable under Section 447 of
the IPC read with Section 34 of the IPC, is not in accordance with law
and needs to be interfered with.
20 The learned counsel for the complainant submitted that
an offence of criminal intimidation has been made out from the
complaint. It is true, that there is some assertion in that regard in the
complaint, but, curiously, the complainant had not made any claim in
the complaint that the accused had committed that offence; and had
not sought process with respect to the said offence. Even the
Magistrate has not issued any process with respect to the said offence.
The learned Additional Sessions Judge also noted this aspect of the
matter. When such is the position, it cannot be accepted that the
process should now be directed to be issued with respect to the
offence punishable under Section 506 (I) or 506 (II) of the IPC.
21 In the result, the petitions and the revision applications
are disposed of as follows:
:: OPERATIVE O R D E R ::
(i) The petitions are allowed in terms of prayer clause (b).
(ii) The revision applications are dismissed.
 (ABHAY M. THIPSAY, J.)
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