Bombay High Court
Suresh S/O Vithalrao Raut vs The State Of Maharashtra, Through Its ... on 11 December, 2020
Author: Amit B. Borkar
Bench: Z. A. Haq, Amit B. Borkar
1 cr-apl-319-14j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 319 OF 2014
Suresh S/o. Vithalrao Raut,
Aged about 58 years,
Occ. Retired Government Servant,
R/o. Kotwali Ward, Chandrapur,
Dist. Chandrapur. . . . APPLICANT
...V E R S U S..
1. The State of Maharashtra through
its Police Station Officer,
City Police Station, Chandrpur,
Dist. Chandrapur.
2. Smt. Beena Chandrakant Pandit,
Aged about 60 years, Occ. Retired,
R/o. Kasturba Road, Bazar Ward,
Chandrapur. . . NON-APPLICANTS
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Shri A.S. Mardikar, Senior Advocate assisted by Shri Sumeet Joshi,
Advocate for the applicant.
Shri S.S. Doifode, A.P.P. for the non-applicant no. 1/State.
Smt. S.P. Giratkar, Advocate for the non-applicant no.2.
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CORAM :- Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED :- 11.12.2020.
ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. This application under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) lays challenge to the registration of First Information Report (FIR) dated 20.03.2013 registered at City Police Station, Chandrapur, vide Crime No.77/2014 for offences punishable ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 2 cr-apl-319-14j.odt under Sections 420 and 468 of the Indian Penal Code (IPC). The applicant being aggrieved by continuation of the above proceedings, prays for quashing thereof.
2. The prefatory facts would be necessary to comprehend better the issues involved and rival contentions:-
The case of the applicant in substance is that, the applicant was working as Shop Inspector with Municipal Council, Chandrapur. On 20.03.2014, the complainant lodged a report with the non- applicant No.1 - Police Station alleging that Shop No.81 of Municipal Council was leased out to her uncle - Muralidhar Shukla and he was carrying out his business in the name of 'Asha Watch Company' and after his death, she entrusted the affairs of said shop to Sushil Tiwari. One Aadesh Tiwari had applied for the issuance of license of the shop and the applicant in connivance with Aadesh issued license in his name. It is alleged that license was issued in the name of Aadesh Tiwari as Proprietor of 'Asha Watch Company' by intentionally changing earlier license of 'Asha Watch Company'. Though the applicant is legal representative of the owner of the said shop, Adesh Tiwari is illegally using the said shop. On 26.12.2008, Aadesh Tiwari in connivance with the applicant prepared forged license in the name of Aadesh Tiwari as owner of the said shop by falsely claiming that original license has been lost. Therefore, the non-applicant No. 2 filed ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 :::
3 cr-apl-319-14j.odt FIR with the non-applicant No. 1 bearing Crime No. 77/2014 on 20.03.2014.
3. The applicant has therefore, filed the present application invoking power of this Court under Section 482 of the Cr.P.C.. In substance, the case of the applicant is that registration of the FIR against the applicant is abuse of process of Court. The change in register took place on 14.2.2003 by earlier Shop Inspector and it bears signature of the then Shop Inspector. In the year 2003, the applicant was not in charge of the said post. The applicant has continued earlier notings and therefore, no forgery is committed by the applicant.
4. The non-applicant No.1 filed reply and pointed out that there is allegation of collusion with Aadesh Tiwari by the applicant. He deleted name of the original shop owner and the name of Aadesh Tiwari was shown as proprietor in the license issued under the Shop and Establishment Act for the said shop. It is further stated that there is prima-facie material showing involvement of the present applicant in the crime and therefore, prayed for rejection of the application.
5. The Non-applicant No.2 filed her reply and stated that Aadesh Tiwari in collusion with his brother Sushil Tiwari applied for getting shop establishment license with intention to grab the shop ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 4 cr-apl-319-14j.odt without taking consent of the applicant. The name of Aadesh Tiwari has been entered without considering objection of the applicant and without following procedure contemplated by the law. Therefore, non- applicant No. 2 prayed for rejection of application.
6. We have heard Shri A.S. Mardikar, learned Senior Advocate assisted by Shri Sumeet Joshi, learned Advocate and Shri S. S. Doifode, learned Additional Public Prosecutor and Mrs. S.P. Giratkar, learned Advocate for the non-applicant No.2.
7. Shri A.S.Mardikar, learned Senior Advocate alongwith Shri Sumeet Joshi, learned Advocate for the applicant, with reference to the contents of FIR forcefully urged that the allegations made in the FIR, even if, they are taken at their face value and accepted in their entirety, do not prima-facie constitute any offence nor make out a case against the accused. He submitted that the applicant has merely renewed name of Aadesh Tiwari, which was in existence on the record of Municipal Council since 2003. Therefore, he prayed for quashing of FIR.
8. Shri Doifode, learned Additional Public Prosecutor for respondent no.1 and Ms. Giratkar, learned Advocate for respondent no.2, submitted that allegations in the FIR do constitute offence under ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 5 cr-apl-319-14j.odt Sections 420 and 468 of the IPC. The defence raised by the applicant cannot be taken into consideration at this stage. The prosecution needs to be given an opportunity to lead oral evidence at the time of trial therefore, they prayed that present criminal application deserves to be dismissed
9. The scope and reach of powers of this Court under Section 482 of the Cr.P.C. in entertaining the prayer for quashing of criminal proceeding is well defined. The fundamental test is to ascertain whether taking the allegations in the complaint to be true, without adding or subtracting anything at the stage of challenge to the maintainability of the proceeding, prima-facie case for trial has been made out. It is only on such examination, the answer has to be in the negative and, then an interference in exercise of power under Section 482 of the Cr.P.C., for quashing the said proceeding is called for.
10. In the backdrop of above position of law, the contents of FIR registered against the applicant are evaluated. The allegation in the FIR states that the applicant in collusion with Aadesh Tiwari without verifying the documents and without ascertaining legal representatives of deceased uncle of the informant, transferred license under Shop and Establishment Act in the name of Aadesh Tiwari in ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 6 cr-apl-319-14j.odt respect of 'Asha Watch Company' and has, therefore, forged the said license.
11. The First Section of the IPC alleged against the appellant is Section 420 of the IPC.
12. Let us now examine whether ingredients of an offence of cheating are made out in the FIR. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything, which he would not do or omit, if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
13. To constitute an offence under Section 420 of the IPC, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived, ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 7 cr-apl-319-14j.odt
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
14. Two main ingredients of Section 420 of the IPC are dishonest and fraudulent intention. The Penal Code has defined the word "dishonestly" in Section 24 of the IPC. Section 24 of the IPC reads as under:-
"24. 'Dishonestly'.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'."
15. The word "fraudulently" has also been defined in Section 25 of the IPC. Section 25 of the IPC reads as under:-
"25. 'Fraudulently'.--A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
16. It will be seen that there are two separate classes of acts, which constitute offence. In the first place, he may be induced fraudulently or dishonestly to deliver the property to any person or to consent that any person shall retain that property. The second class of acts set forth in the Section is the doing or omitting to do anything, which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, inducing must be dishonest or ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 8 cr-apl-319-14j.odt fraudulent. In second class of acts, inducing must be intentional but, not fraudulent or dishonest. Section 420 of the IPC applies in cases in which the property is transferred with the requisite act or acts described in Section 415 of the IPC.
17. The allegations in the FIR are that, the applicant in collusion with Aadesh Tiwari, without verifying documents and without ascertaining legal representatives of deceased uncle of the informant, transferred license under the Shop and Establishment Act in the name of Aadesh Tiwari in respect of 'Asha Watch Company' and has, therefore, forged the said license. There is no allegation of fraudulent or dishonest inducement, resulting in transfer of property. The applicant in his official capacity as a Shop Inspector has performed his duty of renewal of license. Even if, the applicant has made entry of the name of Aadesh Tiwari without following due procedure, still it will not constitute offence under Section 420 of the IPC.
18. The next Section mentioned in the FIR is Section 468 of the IPC, which reads as under:
"468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
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19. This is the aggravated form of forgery which is punishable under Section 465 of the IPC and is defined under Section 464 of the IPC. Forgery is defined under Section 463 of the IPC, which reads as under:
"463. 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."
20. Section 464 of the IPC speaks of making a false document. The Section reads as under:-
"464. Making a false document.--A person is said to make a false document or false electronic record--
Firstly.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of a document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 10 cr-apl-319-14j.odt Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."
21. The First Clause suggests that a person makes a false document if he--
(1) dishonestly or fraudulently makes, signs, seals or executes a document, or part of a document, or makes any mark denoting the execution of a document; and (2) does as above with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed,
(a) by or by the authority of a person by whom or by whose authority it was not so made, signed, sealed or executed, or
(b) at a time at which he knows that it was not made, signed, sealed or executed;
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11 cr-apl-319-14j.odt To attract the Second Clause of Section 464 of the IPC there has to be alteration of document dishonestly and fraudulently. So in order to attract Clause "Secondly", if the document is to be altered it has to be for some gain or with such objective on the part of the accused.
22. An analysis of Section 464 of the IPC shows that it divides false documents into three categories:-
(i) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
(ii) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
(iii) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
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12 cr-apl-319-14j.odt In short, a person is said to have made a "false document", if (i) he has made or executed a document claiming to be someone else or authorized by someone else; or (ii) he has altered or tampered a document; or (iii) he has obtained a document by practicing deception, or from a person not in control of his senses.
23. We do not find as to how the ingredients of offence under Section 468 of the IPC are fulfilled in the present case. The averments in the FIR are that the applicant in collusion with Aadesh Tiwari, without verifying documents and without ascertaining legal representatives of deceased uncle of the informant, transferred license under the Shop and Establishment Act in the name of Aadesh Tiwari in respect of 'Asha Watch Company' and has therefore, forged the said license. In the FIR, there is no allegation that the applicant made or executed a document claiming to be someone else or authorized by someone else or he altered or tampered a document or he obtained a document by practicing deception, or from a person not in control of his senses. Making the entry in the name of Aadesh Tiwari, without following due procedure would not attract ingredients of Section 468 of the IPC.
24. It is true that the inherent power should not be exercised to stifle the legitimate prosecution but, at the same time no person can be ::: Uploaded on - 05/01/2021 ::: Downloaded on - 10/02/2021 00:06:39 ::: 13 cr-apl-319-14j.odt compelled to face criminal prosecution, if basic ingredients of the offence alleged against him are altogether absent. The material placed before us does not constitute an offence under Sections 420 and 468 of the IPC. Therefore, we are of the view that continuance of the prosecution against the present applicant would amount to abuse of process of court.
25. In the above circumstances, we pass the following order:-
First information Report dated 20.03.2013 registered at City Police Station, Chandrapur vide Crime No.77/2014 for offences punishable under Sections 420 and 468 of the Indian Penal Code is quashed and set aside qua the applicant.
Criminal Application is allowed in the above terms.
JUDGE JUDGE
Ambulkar
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