Himachal Pradesh High Court
Reserved On: 09.09.2024 vs Samangla Devi on 4 October, 2024
2024:HHC:9555
THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 602 of 2022
Reserved on: 09.09.2024
Date of Decision: 4.10.2024
Ajay Kumar ....Petitioner
Versus
Samangla Devi ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No.
For the Petitioner : Mr. Arun Raj, Advocate, for the
petitioner
For the Respondents : Mr. Goldy Kumar, Advocate, for the
respondent.
Rakesh Kainthla,Judge
The petitioner has filed the present petition against
the order passed by learned Additional Chief Judicial
Magistrate, Kangra, H.P. (learned Trial Court) in Criminal Case
No. 26-II/21 titled Ajay vs. Samangla Devi, vide which the
complaint preferred by the petitioner (complainant before the
Whether reporters of the local papers may be allowed to see the judgment? Yes
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learned Trial Court) was dismissed. (Parties shall hereinafter be
referred to in the same manner as they were arrayed before the
learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
petition are that the complainant filed a complaint against the
accused before the learned Trial Court for the commission of
offences punishable under Sections 417, 420, 463, 464, 465,
470 and 471 of IPC. It was asserted that the accused was
working as a Water Carrier in Government Senior Secondary
School Samirpur, Tehsil and District Kangra, H.P. Her date of
birth was recorded as 1956 in the Panchayat Parivar Register.
Her first son was born on 05.05.1971. His name was struck off
on 02.05.1981. He was again admitted to Class 4 at Government
Primary School Baid, Ghati by changing his name from Tilak
Raj to Vipan Kumar and his date of birth as 18.03.1976. The date
of birth of her second child is 12.02.1973 andthe date of birth of
her third child is 06.11.1975. The accused was aged 35 years in
the year 1990. She got the job by filing a wrong
affidavit/statement before the Medical Board, Dharamshala,
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disclosing her age as 29 years. She got a certificate on
19.05.1990 by disclosing her age as 29 years. She moved an
application before the Gram Panchayat for correction of her
year of birth to 1961. She obtained the job of water carrierin
Government Primary School Bandi, Tehsil and District Kangra,
H.P. based on this certificate. The complainant filed a
complaint before the Directorate of Elementary Education and
before the police but no action was taken. Hence, the complaint
was filed against the accused before the learned Trial Court for
taking action as per law.
3. The complainant examined himself (CW-1),
Prakasho Devi (CW-2) and Santosh Kumar (CW-3) to prove his
case.
4. The Learned Trial Court held that an inquiry was
conducted by the police in which it was concluded that no fraud
was committed. The certificate was issued by the Chief Medical
Officer based on the ossification test of the accused. No
complaint was ever filed by the Chief Medical Officer or the
Education Department. The children of the accused had not
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obtained any government job based on their dates of birth. No
cognizable offence was committed. Hence, the complaint was
dismissed.
5. Being aggrieved from the order passed by the
learned Trial Court the present revision has been filed asserting
that there were sufficient grounds for proceeding against the
accused. The learned Trial Court failed to appreciate the report
submitted by the police. The police had also mentioned the year
of birth of the accused as 1956 and that it was changed to 1961
based on the certificate issued by the Chief Medical Officer. The
certificate was issued based on the statement made by the
accused that she was aged 29 years. This was the wrong
statement because her son was born on 05.05. 1971, which
means that she was aged 8-9 years at the time of her marriage
and 10 years at the time of the birth of her first child. She had
altered the date of birth of her elder son from 05.05.1971 to
18.03.1976. Tilak Raj and Vipan Kumar are the same person.
The accused had given false information regarding her date of
birth and committed an offence punishable under Section 27 of
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the Birth, Death and Marriage Registration Act, 1886. She had
used the birth certificate obtained by her to secure a
government job and gainedan extra 5 years in her job.
Therefore, it was prayed that the present petition be allowed
and the order passed by the learned Trial Court be set aside.
6. I have heard Mr. Arun Raj, learned counsel for the
petitioner/complainant and Mr. Goldy Kumar, learned counsel
for the respondent/accused.
7. Mr Arun Raj, learned counsel for the
petitioner/complainant submitted that the accused had given a
false statement regarding the date of her birth and the learned
Trial Court failed to consider this aspect. He prayed that the
present petition be allowed and the order passed by the learned
Trial Court be set aside. He has also filed written arguments,
which have been perused by me.
8. Mr. Goldy Kumar, learned counsel for the
respondent/accused supported the order passed by the learned
Trial Court and submitted that no interference is required with
the same.
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9. I have given considerable thought to the
submissions made at the bar and have gone through the records
carefully.
10. It was laid down by the Hon'ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022)
3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is
not an appellate jurisdiction and it can only rectify the patent
defect, errors of jurisdiction or the law. It was observed on page
207: -
"10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence brought
on record. The High Court in criminal revision against
conviction is not supposed to exercise the jurisdiction like
to the appellate court and the scope of interference in
revision is extremely narrow. Section 397 of the Criminal
Procedure Code (in short "CrPC") vests jurisdiction for the
purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of any
proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error
which is to be determined on the merits of individual cases.
It is also well settled that while considering the same, the
Revisional Court does not dwell at length upon the facts and
evidence of the case to reverse those findings.
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11. This position was reiterated in State of Gujarat v.
DilipsinhKishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was
observed:
"13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C. which vests the court with the power to
call for and examine records of an inferior court is for the
purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has crept
into such proceedings. It would be apposite to refer to the
judgment of this court in Amit Kapoor v. Ramesh
Chandra, (2012) 9 SCC 460 where the scope of Section 397
has been considered and succinctly explained as under:
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the
legality and regularity of any proceedings or order
made in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders,
which upon the face of it bear a token of careful
consideration and appear to be in accordance with the
law. If one looks into the various judgments of this
Court, it emerges that the revisional jurisdiction can be
invoked where the decisions under challenge are
grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no
evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes but are merely indicative.
Each case would have to be determined on its own
merits.
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13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional jurisdiction
itself should not lead to injustice ex-facie. Where the
Court is dealing with the question as to whether the
charge has been framed properly and in accordance
with law in a given case, it may be reluctant to
interfere in the exercise of its revisional jurisdiction
unless the case substantially falls within the categories
aforestated. Even framing of charge is a much-
advanced stage in the proceedings under the CrPC."
12. The present revision has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
13. The grievance of the complainant is that the accused
had obtained a false certificate from the Chief Medical Officer
by disclosing her age as 29 years. A copy of the certificate shows
that the Medical Board had examined the accused. According to
the statement of the accused, she was 29 years of age and the
Medical Board was of the opinion that she was about 29 years of
age. This certificate clearly shows that the accused had made a
statement regarding her age and the Board was satisfied that
her age was 29 years. It was submitted that this was the wrong
statement and the Board had acted upon it. This submission is
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not acceptable. The certificate clearly shows that the Board
was of the opinion that the accused was 29 years of age. It
means that the Board had not acted upon the age disclosed by
the accused but had applied its independent mind. Further,
there was no question of constituting the Board if it was to act
upon the age disclosed by a person. The fact that the Board had
used the word 'of the opinion' clearly shows that the Board was
satisfied regarding the age. Hence, the certificate was not based
on the age disclosed by the accused but upon the satisfaction of
the Board. Since the satisfaction was independent of the
disclosure of the age by the accused, therefore, it cannot be said
that the board was misled by the age disclosed by the accused.
The complainant has not examined any member of the Board to
show that it had acted upon the representation made by the
accused. Hence, the very foundation of the complaint that the
accused had misled the board by showing her age as 29 years is
faulty.
14. It is undisputed that the age of the accused was
changed based on the certificate issued by the Board. It was
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rightly pointed out by the learned Trial Court that there is no
evidence that the contents of the certificate issued by the Board
were altered after it was issued by the Board. Therefore, the act
of producing the certificate before the various authorities and
altering the year of birth of the accused based on the certificate
cannot constitute forgery.
15. The term forgery has been defined in section 463 of
IPC as under:
"463. Forgery.--Whoever makes any false documents or
electronic record part of a document or electronic record
with, intent to cause damage or injury], to the public or 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."
16. It is apparent from the definition that a person has to
make a false document before he can be said to have committed
forgery. Making a false document is defined in section 464 of IPC.
It reads as under:
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;
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(b) makes or transmits any electronic record or
part of any electronic record;
(c) affixes any electronic signature on any
electronic record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that such
document or part of a document, electronic record
or electronic 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 electronic 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 electronic 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.
17. It was laid down by the Hon'ble Supreme Court in
Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that the
prosecution is required to prove that the accused had forged a
document by creating a false document to establish the offence of
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forgery. A false document is when a document is executed
claiming to be executed by someone else or authorized by
someone else or a document is tempered or signatures are
obtained by practicing deception. It was observed:-
"[10] An analysis of section 464 of the Penal Code shows
that it divides false documents into three categories:
10.1) 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.
10.2) 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.
10.3) 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
because of (a) unsoundness of mind; or (b)
intoxication; or (c) deception practised upon him,
know the contents of the document or the nature of
the alteration.
[11] In short, a person is said to have made a 'false
document', if (i) he made or executed a document claiming
to be someone else or authorised by someone else; or (ii) he
altered or tampered with a document; or (iii) he obtained a
document by practising deception, or from a person not in
control of his senses."
18. In the cited case, the prosecution alleged that the
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accused had executed a sale deed regarding the property over
which he had no right. It was held by the Hon'ble Supreme Court
that there is a distinction between a document whose contents are
false and a document that is itself false within the definition of
Section 464 of IPC. A document containing false averment does
not attract the provision of Criminal Law and the accused cannot
be held liable for executing the sale deed by claiming to be the
owner when he was not the owner. It was observed:-
"[12] The sale deeds executed by the first appellant, clearly
and obviously do not fall under the second and third
categories of 'false documents'. It, therefore, remains to be
seen whether the claim of the complainant that the
execution of sale deeds by the first accused, who was in no
way connected with the land, amounted to committing
forgery of the documents with the intention of taking
possession of complainant's land (and that accused 2 to 5
as the purchaser, witness, scribe and stamp vendor
colluded with first accused in execution and registration of
the said sale deeds) would bring the case under the first
category. 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 owner or falsely claiming to be
authorised or empowered by the owner, to execute the deed
on the owner's behalf. When a person executes a document
conveying a property describing it as his, there are two
possibilities. The first is that he bonafide believes that the
property actually belongs to him. The second is that he may
be dishonestly or fraudulently claiming it to be his even
though he knows that it is not his property. But to fall under
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the first category of 'false documents', it is not sufficient
that a document has been made or executed dishonestly or
fraudulently. There is a further requirement that it should
have been made with the intention of causing it to be
believed that such document was made or executed by, or
by the authority of a person, by whom or by whose
authority he knows that it was not made or executed. When
a document is executed by a person claiming a property
which is not his, he is not claiming that he is someone else
nor is he claiming that he is authorised by someone else.
Therefore, execution of such a document (purporting to
convey some property of which he is not the owner) is not
an execution of a false document as defined under section
464 of the Code. If what is executed is not a false document,
there is no forgery. If there is no forgery, then neither
section 467 nor section 471 of the Code is attracted".
19. In Mir Nagvi Askari Vs CBI 2009 (15) SCC 643 the accused
was charged with making false entries in the record of the bank. It
was laid down by the Hon'ble Supreme Court that making wrong
entries by itself will not attract criminal liability unless it is
proved that the document was false within the meaning of Section
464 of IPC. It was observed:-
"[229] A person is said to make a false document or record
if he satisfies one of the three conditions as noticed
hereinbefore and provided for under the said section. The
first condition being that the document has been falsified
with the intention of causing it to be believed that such
document has been made by a person, by whom the person
falsifying the document knows that it was not made.
Clearly, the documents in question in the present case, even
if it be assumed to have been made dishonestly or
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fraudulently, had not been made with the intention of
causing it to be believed that they were made by or under
the authority of someone else.
[230] The second criterion of the section deals with a case
where a person without lawful authority alters a document
after it has been made. There has been no allegation of
alteration of the voucher in question after they have been
made. Therefore in our opinion, the second criterion of the
said section is also not applicable to the present case.
[231] The third and final condition of Section 464 deals
with a document, signed by a person who due to his mental
capacity does not know the contents of the documents
which were made i.e. because of intoxication or
unsoundness of mind etc. Such is also not the case before
us. Indisputably therefore the accused before us could not
have been convicted for the making of a false document.
[232] The learned Special Judge, therefore, in our opinion,
erred in holding that the accused had prepared a false
document, which clearly, having regard to the provisions of
the law, could not have been done.
[233] Further, the offence of forgery deals with the making
of a false document with the specific intentions enumerated
therein. The said section has been reproduced below.
"463. Forgery.--Whoever makes any false documents
or electronic record part of a document or electronic
record with, intent to cause damage or injury], to the
public or 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."
[234] However, since we have already held that the
commission of the said offence has not been convincingly
established, the accused could not have been convicted for
the offence of forgery. The definition of "false document"
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is a part of the definition of "forgery". Both must be read
together. [Dr. Vimla v. Delhi Administration, 1963 Supp2 SCR
585]".
20. It was further held that in the absence of the document
being forged a person cannot be convicted of the commission of
an offence punishable under Section 471 of IPC. It was observed:-
"[235] Accordingly, the accused could not have been tried
for an offence under Section 467 which deals with forgery
of valuable securities, will etc. or Section 471, i.e., using as
genuine a forged document or Section 477-A, i.e,
falsification of accounts. The conviction of the accused for
the said offences is accordingly set aside".
21. This question was also considered in Sheila Sebastian
versus RJawaharaj&Anr ETC. 2018 (7) SCC 581 and it was held that
unless the ingredients of Section 464 of IPC are satisfied a person
cannot be convicted of the commission of an offence punishable
under Section 465 of IPC. It was observed:-
"[26] The definition of "false document" is a part of the
definition of "forgery". Both must be read together.
'Forgery' and 'Fraud' are essentially matters of evidence
which could be proved as a fact by direct evidence or by
inferences drawn from proved facts. In the case at hand,
there is no finding recorded by the trial Court that the
respondents have made any false document or part of the
document/record to execute the mortgage deed under the
guise of that 'false document'. Hence, neither respondent
no.1 nor respondent no.2 can be held as makers of the
forged documents. It is the imposter who can be said to
have made the false document by committing forgery. In
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such an event the trial court, as well as the appellate court,
misguided themselves by convicting the accused.
Therefore, the High Court has rightly acquitted the accused
based on the settled legal position and we find no reason to
interfere with the same".
22. In the present case, there is no allegation that the
signatures on the certificate were not put by the members of the
Board or it was altered after it was made. Hence, no case for the
commission of forgery is made out.
23. It was submitted that the case is covered under clause
thirdly. This submission cannot be accepted. It is not the case of
the complainant that members of the Board were unaware of the
contents of the certificate due to their mental capacity or were
intoxicated or were of unsound mind.
24. The complaint was also filed for the commission of
offences punishable under Sections 417 and 420 of IPC. The
ingredients of cheating were explained by the Hon'ble Supreme
Court in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241as under:
"10. The ingredients of an offence of cheating are: (i) there
should be fraudulent or dishonest inducement of a person
by deceiving him, (ii)(a) the person so deceived should be
induced to deliver any property to any person or to consent
that any person shall retain any property; or (b) the person
so deceived should be intentionally induced to do or omit to
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do anything which he would not do or omit if he were not so
deceived; and (iii) in cases covered by (ii)(b), the act of
omission should be one which causes or is likely to cause
damage or harm to the person induced in body, mind,
reputation or property.
11. One of us (D.P. Mohapatra, J.), speaking for the Bench,
in HridayaRanjan Prasad Verma v. State of Bihar [(2000) 4
SCC 168: 2000 SCC (Cri) 786] on facts of that case, has
expressed thus: (SCC p. 177, para 15)
"15. In determining the question it has to be kept in
mind that the distinction between mere breach of
contract and the offence of cheating is a fine one. It
depends upon the intention of the accused at the
time of inducement which may be judged by his
subsequent conduct but for this subsequent conduct
is not the sole test. Mere breach of contract cannot
give rise to criminal prosecution for cheating unless
fraudulent or dishonest intention is shown right at
the beginning of the transaction, that is the time
when the offence is said to have been committed.
Therefore it is the intention which is the gist of the
offence. To hold a person guilty of cheating it is
necessary to show that he had fraudulent or dishonest
intention at the time of making the promise. From his
mere failure to keep up promise subsequently such a
culpable intention right at the beginning, that is, when
he made the promise cannot be presumed."(emphasis
supplied)
12. Finding that the ingredients of the offence of cheating
and its allied offences had not been made out, this Court
interfered with the order of the High Court and quashed the
criminal proceedings.
13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC
(Cri) 733] this Court in para 7 has stated thus: (SCC pp. 696-
97)
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"7. As mentioned above, Section 415 has two parts.
While in the first part, the person must 'dishonestly'
or 'fraudulently' induce the complainant to deliver
any property; in the second part, the person should
intentionally induce the complainant to do or omit
to do a thing. That is to say, in the first part,
inducement must be dishonest or fraudulent. In the
second part, the inducement should be intentional.
As observed by this Court
in JaswantraiManilalAkhaney v. State of Bombay [AIR
1956 SC 575: 1956 Cri LJ 1116] a guilty intention is an
essential ingredient of the offence of cheating. In
order, therefore, to secure the conviction of a person
for the offence of cheating, 'mens rea' on the part of
that person, must be established. It was also
observed in Mahadeo Prasad v. State of W.B. [AIR 1954
SC 724: 1954 Cri LJ 1806] that in order to constitute the
offence of cheating, the intention to deceive should be
in existence at the time when the inducement was
offered."
(emphasis supplied)
14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8
SCC 686: 2000 SCC (Cri) 47] dealing with the effect of
existence of arbitration clause in the agreement on criminal
prosecution on the ground that civil proceedings are also
maintainable, this Court has held that quashing of FIR or a
complaint exercising power under Section 482 CrPC should
be limited to a very extreme exception; merely because an
act has a civil profile is not enough to stop action on the
criminal side. It is further held that a provision made in the
agreement for referring the disputes to arbitration is not an
effective substitute for a criminal prosecution when the
disputed act constitutes a criminal offence.
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25. A similar view was taken in G.V. Rao v. L.H.V. Prasad,
(2000) 3 SCC 693 as under:
"4. "Cheating" is defined in Section 415 of the Penal Code,
1860 which provides as under:
"415. Cheating.--Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any person shall retain any property, or
intentionally induces the person so deceived 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, mind, reputation or property, is said
to 'cheat'.
Explanation.--A dishonest concealment of facts is a
deception within the meaning of this section."
5. The High Court quashed the proceedings principally on
the ground that Chapter XVII of the Penal Code, 1860 deals
with the offences against properties and, therefore,
Section 415 must also necessarily relate to the property
which, in the instant case, is not involved and,
consequently, the FIR was liable to be quashed. The broad
proposition on which the High Court proceeded is not
correct. While the first part of the definition relates to
property, the second part does not necessarily relate to
property. The second part is reproduced below:
"415. ... intentionally induces the person so deceived
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, mind, reputation or property,
is said to 'cheat'."
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6. This part speaks of intentional deception which must be
intended not only to induce the person deceived to do or
omit to do something but also to cause damage or harm to
that person in body, mind, reputation or property. The
intentional deception presupposes the existence of a
dominant motive of the person making the inducement.
Such inducement should have led the person deceived or
induced to do or omit to do anything which he would not
have done or omitted to do if he were not deceived. The
further requirement is that such an act or omission should
have caused damage or harm to body, mind, reputation or
property.
7. As mentioned above, Section 415 has two parts. While in
the first part, the person must "dishonestly" or
"fraudulently" induce the complainant to deliver any
property; in the second part, the person should
intentionally induce the complainant to do or omit to do a
thing. That is to say, in the first part, inducement must be
dishonest or fraudulent. In the second part, the
inducement should be intentional. As observed by this
Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR
1956 SC 575: 1956 Cri LJ 1116: 1956 SCR 483] a guilty
intention is an essential ingredient of the offence of
cheating. In order, therefore, to secure the conviction of a
person for the offence of cheating, "mens rea" on the part
of that person, must be established. It was also observed
in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954 Cri
LJ 1806] that in order to constitute the offence of cheating,
the intention to deceive should be in existence at the time
when the inducement was offered.
8. Thus, so far as the second part of Section 415 is
concerned, "property", at no stage, is involved. Here it is
the doing of an act or omission to do an act by the
complainant, as a result of intentional inducement by the
accused, which is material. Such inducement should result
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in the doing of an act or omission to do an act as a result of
which the person concerned should have suffered or was
likely to suffer damage or harm in body, mind, reputation
or property. In an old decision of the Allahabad High Court
in Empress v. Sheoram [(1882) 2 AWN 237], it was held by
Mahmood, J.:
"That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section 415."
26. In the present case, the accused had merely produced the certificate issued by the Medical Board and there was no false representation to attract the offence of cheating.
27. Much reliance was placed upon the fact that the elder son of the accused was born in the year 1971. He was withdrawn from the school and thereafter he was again admitted under a different name. Even if it is so, it is not shown which offence was committed by the accused by doing so. Further, there is no proof of the fact that Tilak Raj and Vipan Kumar are the same person as alleged in the complaint as well as the petition except the solitary statement of the complainant.
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28. The police found after the investigations that the children of the accused had not taken any private or government jobs. The sons of the accused were working as labourers. This report also does not show the commission of any cognizable offence.
29. Therefore, the complaint did not disclose the commission of any cognizable offence and the learned Trial Court had rightly dismissed the same. There is no infirmity in the order passed by the learned Trial Court and no interference is required with the same.
30. Consequently, the present petition fails and the same is dismissed.
31. Record of the learned Trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 4th October, 2024 (Ravinder)