An attesting witness cannot be prosecuted for fraud without specific allegations of participation.

The complainant alleged that he had purchased a plot from accused No. 1 in 1989, but that accused No. 1 later sold it to accused No. 2, who successively transferred it to accused Nos. 4 and 5, thereby cheating the complainant.

The petitioner, accused No. 3, was alleged to have been a friend of accused No. 1 and an attesting witness to the sale deed in favour of accused No. 2.

The petitioner sought quashing of the proceedings in C.C. No. 42/2024, arising from Crime No. 0081/2022, for offences under Sections 403, 406 and 420 read with Section 34 IPC.

He contended that he neither executed nor benefited from the transaction and that no specific act or shared intention was alleged against him.

The judgment refers to the relevant sale deed as dated 18.04.2019 in paragraphs 3 and 14, but as dated 19.03.2019 in paragraph 9.

Whether a person may be prosecuted for the alleged offences merely because he was an attesting witness to the impugned sale deed, absent specific allegations or material showing his participation in the alleged fraud.

Whether continuation of the criminal proceedings against the petitioner would amount to an abuse of process warranting quashing under Section 482 Cr.P.C./Section 528 BNSS.

The petition was considered under Section 482 of the Code of Criminal Procedure, 1973, corresponding to Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The Court considered the elements of attestation under Section 3 of the Transfer of Property Act—identified in the judgment as the “Transfer of Property Act, 1982”—including that an attesting witness signs to attest that the executant signed or acknowledged the instrument.

It relied on Rajesh s/o Yallappa Totaganti v. State of Karnataka, 2023 (6) KLJ 589, which, as quoted by the Court, states that an attesting witness cannot be drawn into criminal proceedings where the only allegation is that he attested the instrument.

The judgment also refers to M. L. Abdul Jabbar Sahib v. M. V. Venkata Sastri & Sons, (1969) 1 SCC 573, in recounting the authorities underlying that principle.

The Court found that the prosecution material alleged no more than that the petitioner was a friend of accused No. 1 and an attesting witness to the sale deed.

It identified no material showing that the petitioner participated in the alleged fraudulent transaction or committed any specific overt act.

Applying the principle that attestation alone is insufficient to implicate a witness in a crime, the Court concluded that the allegations did not justify continuing the prosecution against him and that doing so would constitute an abuse of process.

It clarified that its observations were confined to the petitioner’s case and were not to influence or prejudice the proceedings against the other accused.