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TMI Blog2009 (5) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... oint family, who died issueless, devolved upon among the three Devendra Rajendra Munni surviving brothers, viz., Girdhar, Roopa and Harikesh. However, according to the respondent No. 2, the share of Naraina devolved upon Rupa and Harikesh. 5. On or about 17.03.1982, Gullu, son of Harikesh filed a suit for partition of his 1/3rd share before the Additional Sub Divisional Officer, Pargana being Suit No. 135 of 1982. By an order dated 24.11.1983, the said suit was decreed, stating: 1. Plaintiff Gullu has share in disputed land. 2. Share of defendant Devendra and Rajendra th is in disputed land. 3. Share of defendants Jai Singh, ChatarPal, Nanakchand and Jaichand is = in disputed land. 6. Gullu filed an appeal thereagainst before the Commissioner, Meerut Division. By an order dated 19.03.1984, the said decree was modified opining that 3/8th share in the joint family belonged to sons of Roopa, viz., Jai Singh, Chatar Pal, Nanakchand and Jaichand. Aggrieved by the said order, Jai Singh, son of Roopa, filed an appeal before the Board of Revenue, which by an order dated 21.10.1985 set aside the order dated 19.03.1984 passed by the Additional Commissioner and affirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legality of the said order, the appellants filed another application under Section 482 of the Code of Criminal Procedure, which by reason of the impugned judgment, has been dismissed. 15. Mr. S.R. Singh, learned senior counsel appearing on behalf of the appellants would submit: (i) The learned Chief Judicial Magistrate having not assigned any reason while taking cognizance of the offence, the High Court should have held that the same suffered from total non-application of mind. (ii) Having regard to the question as to whether the appellants have one-third or one-fourth share and a civil suit being pending, the order dated 17.10.2005 could not be sustained. 16. Mr. Ratnakar Das, learned senior counsel appearing on behalf of the respondent - State, on the other hand, would submit that having regard to the provisions contained in Section 463 of the Indian Penal Code, an offence for commission of forgery must be held to have been made out. The learned counsel appearing on behalf of the complainant also supported the impugned order. 17. The fact that the appellants are co-sharers is not in dispute. The dispute between them is confined to the extent of their respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2. No contract and/ or transaction had been entered into by and between the complainant and the appellants. 22. `Cheating' has been defined in Section 415 of the Indian Penal Code to mean: Cheating-- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'. In V.Y. Jose v. State of Gujarat and Anr. [(2009) 3 SCC 78], this Court opined: An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: i) deception of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made the promise cannot be presumed. [See also Indian Oil Corporation v. NEPC India Ltd. and Ors. (2006) 6 SCC 736, Veer Prakash Sharma v. Anil Kumar Agarwal and Anr. 2007 (9) SCALE 502, V.Y. Jose (supra) and Ravindra Kumar Madhanlal Goenka Anr. v. M/s. Rugmini Ram Raghav Spinners Anr. 2009 (6) SCALE 162] 23. Section 463 of the Indian Penal Code reads as under: Forgery Whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. According to Mr. Das, making of a false document so as to support any claim over title would constitute forgery within the meaning of the said provision and as a document was created for the purpose of showing one- third share in the joint property by the appellants although they were not entitled to therefor, they must be held to have committed an offence. Making of any false document, in view of the definition of `f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction. We may, however, notice that the said decision has been considered recently by this Court in Mahesh Choudhary v. State of Rajasthan Anr. [2009 (4) SCC 66] wherein it was noticed: Recently in R. Kalyani v. Janak C. Mehta and Ors. 2008 (14) SCALE 85, this Court laid down the law in the following terms: 9. Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefor was required to be applied. However, when materials are collected and a chargesheet is filed on the basis whereof the Magistrate takes cognizance of the offence, the same would give rise to a new cause of action. An order taking cognizance of an offence on the basis of a chargesheet filed by the investigating officer and/ or directing issuance of summons on a complaint petition, indisputably, would attract the provisions of Section 482 of the Code of Criminal Procedure if a case has been made out for invocation thereof. 29. Mr. Das submits that a wrong committed on the part of a person may be a civil wrong or a criminal wrong although an act of omission or commission on the part of a person may give rise to both civil action and criminal action. A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out. 30. Furthermore, in a case of this nature where even, according to Mr. Das, no case has been made out for taking cognizance of an offence under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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