The execution of a sale deed does not constitute forgery if the seller believes they own the property, and a valid Decree precludes allegations of cheating.

ORDER

The petition seeks leave to file an appeal against the acquittal of the respondents.

2. The petitioner is the complainant in C.C.No.1023 of 2021, tried as a private complaint case.

3.The allegation in the complaint is that the respondents herein had obtained a Decree by making false averments claiming right over the disputed property, and based on the said Decree executed a Sale Deed in favour of the petitioner/appellant/complainant by the Deed of Sale dated 25.03.2008, bearing document No.2236/2008; that after the sale, the petitioner went to inspect that property and found that there was a rival claim for the property; and that the rival claimants objected to the petitioner entering the property and hence, the respondents are liable for the offences under Sections 406 , 417 , 420 , 465 , 468 and 470 of the Indian Penal Code , 1860. Further alleging that the petitioner had lodged a complaint before the police and since no action was taken, he had preferred the private complaint.

4. The petitioner examined himself as P.W.1 and marked thirteen documents as Exs.P1 to P.13. The accused examined the first respondent as D.W.1 and marked exhibits as Exs.D1 and D2.

5. The learned XV Metropolitan Magistrate, George Town, Chennai, on the basis of evidence, held that since it is not the complainant's case that the respondents had forged anyone's signature, the offence of forgery is not made out. The learned Magistrate further held that the basis on which the respondents claimed title over the property is a Decree passed in O.S.No.23 of 1991 on the file of the learned District Munsif, Ponneri; that the Decree is still in force; that the question as to whether the property belongs to the respondents or one Sridevi Housing Private Limited, which, according to the complainant, claimed right over the property, has to be decided by the Civil Court and hence, the offence of cheating is not made out.

6. Heard the learned counsel for the petitioner/appellant/complainant and the learned counsel for the respondents/accused.

7. Mr.M.Jayapalrajan, the learned counsel for the petitioner/appellant, would submit that the Judgment of acquittal is perverse and it is contrary to the evidence on record; that the respondents had made a false claim of title and sold the property to the petitioner, which amounts to cheating and therefore, the impugned Judgment has to be set aside, and he sought leave to prefer the above appeal.

8. Mr.I.Abdul Basith, the learned counsel for the respondents, per contra, submitted that, as rightly observed by the learned Magistrate, the Civil Court Decree is still in force, and the complaint, which assumes that the respondents had no title over the property, is not maintainable, and none of the offences alleged are made out and therefore, the learned Magistrate was right in acquitting the respondents and prayed for dismissal of the Special Leave Petition.

9. It is well settled that the power to grant leave to file an appeal against the acquittal has to be exercised judiciously and it is not an empty formality.

10. In this case, as rightly observed by the learned Magistrate, it is not the case of the petitioner that the respondents had committed any forgery. The complaint is that the respondents had falsely claimed title over the property sold to the petitioner. Hence, the offences under Sections 465 , 468 and 470 of the IPC are not made out. The Hon'ble Supreme Court in Mohammed Ibrahim and others vs. State of Bihar & Another reported in (2009) 8 SCC 751 had held as follows:

“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