Allahabad High Court
Sudhir Prasad vs State Of U.P. & Another on 2 July, 2010
Reserved
Criminal Misc. Application No.14630 of 2006
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Sudhir Prasad Vs. State of U.P.
Hon. A.K. Roopanwal, J.
This application under Section 482, Cr.P.C. has been moved for quashing the charge sheet no.47/99 submitted in case crime no.149/92, under Sections 420, 464, 465, 468, 471 & 120-B, IPC, P.S. Civil Lines, District Aligarh and the proceedings of case no.3281/99, pending before the Chief Judicial Magistrate, Aligarh.
It appears from the record that the applicant was a candidate for Civil Services (Preliminary Examination 1986) conducted by the Union Public Service Commission, New Delhi where he did not appear. He was again a candidate for civil services preliminary examination 1987 and civil services preliminary and main examination 1988 in which he appeared. He also appeared in civil services preliminary examination 1989. In all these years he appeared as General candidate, however, at the civil services preliminary and main examination 1990 he claimed to belong to scheduled caste and appeared in this examination in this capacity. At the time of interview of the examination of 1990 he submitted an original scheduled caste certificate alleged to have been issued by the Upper Zila Magistrate, Aligarh in the year 1986 certifying that the applicant belonged to "Jatav" a scheduled caste. In the application form for the year 1990 he claimed to belonging to Gorakhpur District of Uttar Pradesh and in column 24 of his application he mentioned that he served as Sub Lieutenant in the INS of India from 1.1.84 to 31.8.89, however, he did not give any information about his employment after 31.8.89. In column 27(A) and 27(B) of the application for the examination of the year 1990 he did not indicate anything.
After the result of the examination of 1990 the Union Public Service Commission made an inquiry about the particulars mentioned by the applicant in his application for the year 1990. On inquiry it was found that in the years 1986, 1987, 1988, 1989 he claimed to belong to general category while in the year 1990 he claimed to belong to scheduled caste category. It was also found that he had wrongly mentioned his parentage and there was variation in his place of birth. After the inquiry made by the Union Public Service Commission a criminal case at crime no.149/92, under Section 464, 465, 468, 470, and 120, IPC was registered against the applicant at P.S. Civil Lines, Aligarh which was investigated by the C.B.C.I.D. and after investigation charge sheet was submitted against him which has been challenged in the present application.
Counter and rejoinder affidavits have been exchanged between the parties. I have heard Mr. Vinay Khare, learned counsel for the applicant, learned AGA for the State and perused the record.
It has been argued by Mr. Khare that even if all the allegations as contained in the FIR are treated to be true on their face value no offence punishable under Section 464, 465, 468, 471, 420 and 120 B of the IPC is made out against the applicant.
2To the above, it has been argued by the learned AGA that the caste certificate relied upon by the applicant being a forged one the applicant cannot be absolved from the liability of committing the aforesaid offences. He further argued that the fact of mentioning wrong parentage and different places of birth also indicate that the applicant is guilty for the offences punishable under Sections 420, 464, 465, 468, 471 and 120-B, IPC.
To appreciate the aforesaid arguments I would like to refer the provisions of Section 463, 464, 465, 468 and 471, IPC.
These Sections have been incorporated in the Indian Penal Code 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.
464. Making a false document.
[A person is said to make a false document or false electronic record- First.-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; © 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 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 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.]
465. Punishment for forgery.
Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
468. Forgery for purpose of cheating.
3Whoever 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.
471. Using as genuine a forged [document or electronic record].
Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record.] From the above it is very much clear that to find a person guilty for committing forgery defined under Section 463, IPC by making a false document as defined under Section 464, IPC punishable under Section 465, IPC it must be proved that the accused had either himself made a false document or false electronic record with the intention of causing it to be believed that such document or part of 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. In other words or in simple language forgery can be committed in two ways. Firstly, a person can commit forgery when he or she makes a false document or false electronic record himself showing that it was actually made by that person under whose signature or authority it appeared to have been issued. Secondly, forgery can also be said to have been committed by the offender in conspiracy of another person by making the aforesaid false document through that person.
In view of the above legal position, if we go through the facts of the present case, we would find that the caste certificate which is the bone of contention in this case was issued by the person who was authorised to issue the same. It was not a case where the caste certificate was made by the applicant or he caused it to be made by another person with his conspiracy. It is altogether a different matter that it was not accepted by the concerned authorities under certain circumstances. Thus, in my opinion, the offence mentioned under Section 464, IPC punishable under Section 465, IPC and the offence punishable under Section 468, IPC cannot be said to have been made out and the charge sheet for these offences is worthless and is liable to be quashed.
So far as the offence punishable under Section 471, IPC is concerned, that can be made out only when the offender fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document.
Applying the above legal position to the facts of the present case we would find that there being no evidence on the record that the caste certificate was a forged document as it was issued by a competent authority, there can be no question that it was used by the applicant as a genuine document knowingly or having reason to believe that it was a forged document, therefore, offence under Section 471, IPC also does not appear to have been made out in the present case and the charge sheet under this Section has also not 4 correctly been filed and is liable to be quashed.
So far as the offence punishable under Section 120 B, IPC is concerned, that too also does not appear to have been made out as the ingredients necessary to constitute this offence is not available in the present case. For constituting conspiracy there must be at least two or more persons agreed to do or cause to be done an illegal act or an act which is not illegal by illegal means and because there is nothing on the record to indicate that any other person conspired with the applicant there can be no question of constituting the offence punishable under Section 120-B, IPC and the charge sheet in this Section also is liable to be quashed.
Now comes the offence punishable under Section 420, IPC. For constituting the offence of cheating defined under Section 415, IPC and punishable under Section 420, IPC following ingredients must be satisfied:-
1. deception of any person
2. (a) fraudulently or dishonestly inducing that person (i) to deliver any property to any person or (ii) to consent that any person shall remain in property or (b) intentionally inducing that person 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, reputation or property.
From the above it is clear that deception is the gravamen of the offence of cheating. Now the question arises as to what is deception. Deception means causing to believe what is false, or misleading as a matter of fact or leading into error. Whenever a person fraudulently represents as an existing fact that which is not an existing fact he commits deception. Deceit is a false statement of a fact made by a person knowingly or recklessly with the intent that it shall be acted upon by another who does act upon it and thereby suffers damage.
In the present case, it is very much clear from the investigation that it could not be settled as to whether the applicant was a member of the scheduled caste category or not as his actual parentage and place of birth could not be known. In these circumstances, it cannot be said that the applicant relied upon the certificate knowing well that the certificate was a forged one. Therefore, in the present case, there was no question of committing deception by the applicant either upon the Union Public Service Commission or upon any other person. It is quite possible that believing himself to be a scheduled caste person he bonafidely relied upon the certificate and presented it before the Union Public Service Commission. Thus, in my view, Section 420, IPC is also not attracted in the present case and the charge sheet is liable to be quashed for this Section also.
Now, the question arises as to whether giving contradictory particulars in the application for the year 1990 and also giving wrong parentage would attract any of the aforesaid offences. The answer to this question would be in the negative. Giving wrong particulars would not, in any way, create either cheating or forgery in view of the discussion made above more particularly in the light of the definitions of cheating and 5 forgery.
In view of the above, I come to the conclusion that the charge sheet in the present case has wrongly been submitted under Sections 464, 465, 468, 471, 420 and 120 B of the IPC. As these offences are not made out , hence, the charge sheet is liable to be quashed.
Accordingly, application is allowed. Charge sheet no.47/99 submitted in case crime no.149/92, under Sections 420, 464, 465, 468, 471 & 120-B, IPC, P.S. Civil Lines, District Aligarh and the entire proceedings of case no.3281/99, pending before the Chief Judicial Magistrate, Aligarh. are, hereby, quashed.
Dated:2.7.10 T. Sinha.