The absence of forgery or deception is crucial in determining the prima facie offence under the IPC.

JUDGMENT :

Challenge in this petition is made to cognizance order dated 12.03.2018 and charge sheet dated 13.12.2017. These proceedings relates to FIR No. 129 of 2016, dated 11.08.2016, under Section 420, 467, 468, 471, 120B IPC, Police Station Prem Nagar, District Dehradun.

2. Facts necessary to appreciate the controversy briefly stated are as follows:-

The respondent no.2 (the informant) lodged an FIR on 11.08.2018 against Kundan Singh and Balbir Singh. According to it, the informant had purchased certain property on 28.08.2001 from Kundan Singh and Balbir Singh, but the same property was again sold by Rakesh Kumar Agarwal and Smt. Vineeta Agarwal to some other person on 28.01.2002. It is this FIR, in which, after investigation, charge sheet was earlier filed against coaccused Kundan Singh and Bilas Dev. The named accused Balbir Singh had died. The matter was further investigated and separate charge sheet has been filed against the petitioner, on which, on 12.03.2018 cognizance has been taken. It is impugned herein.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner would submit that no offences are made out against the petitioner. It is argued that the informant was neither cheated nor any forgery was committed in the matter. Therefore, offences under Sections 420, 467, 468, 471 and 120B IPC are not made out and the petition deserves to be allowed.

5. On behalf of the informant, it is argued that the informant had purchased the property in question on 29.08.2001 from its lawful owners Kundan Singh and Balbir Singh. But, the same property was subsequently sold by Kundan Singh and the petitioner (the petitioner was a nominee) to a Jitendra Mathur on 10.01.2002. It is argued that it shall be presumed that the petitioner had notice of earlier sale transaction dated 29.08.2001, in favour of the informant. Learned counsel would submit that the word “notice” has been defined under Section 3 of the Transfer of Property Act, 1882 (for short, “the T.P. Act”). The sale deed in favour of the petitioner was registered on 29.08.2001 and from that date, it shall be presumed that the petitioner had notice of the sale transaction. Notice as defined under Section 3 of the T.P. Act is as hereunder:-

“3. Interpretation-clause.—In this Act, unless there is something repugnant in the subject or context,— ................................................................................ .......................................................................................... ......................................................................................... “a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Explanation I.—Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under subsection (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:

Provided that—

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian. Registration Act, 1908 (16 of 1908), and the rules made thereunder,

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

(3) the particulars regarding the transacti