Madhya Pradesh High Court
Islam Kha vs The State Of Madhya Pradesh on 7 April, 2017
Cr.R. No.36/2017 1
Cr.R. No.36/2017
07/04/2017
Shri R.K. Batham, learned counsel for the petitioner.
Shri Rahul Vijaywargiya, learned Public Prosecutor
for the respondent/State.
This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short "The Code") has been preferred against order dated 16/06/2016 and order dated 20/12/2016 passed by the Court of learned Second Additional Sessions Judge, Sendwa, District Bharwani, in S.T. No.44/2016 to the extent they relate to charges under Section 467, 468, 471 and 120B of IPC.
02. Vide order dated 16/06/2016, charges for offence(s) under Section(s) 467, 468, 471, 120B of IPC, Section 11(1)(d) of The Prevention of Cruelty to Animals Act, 1960 and Section 4, 6 & 9 of Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004, have been framed against the petitioner. Vide order dated 20/12/2016, prayer made on behalf of the petitioner under Section 216 of 'The Code' for discharge has been declined.
03. Allegedly, the petitioner was found transporting cow progeny in vehicle bearing registration No. MP 09 HF 1164 for which he was not having any valid license. It was further found that the vehicle did not bear correct number plate and that a forged number plate was put on the vehicle.
04. It is submitted on behalf of the petitioner that allegations with regard to preparing false number plate of the Cr.R. No.36/2017 2 vehicle, even if accepted as such, does not bring the act of the petitioner within the ambit of Section 467, 468, 471 and 120B of IPC. The further contention is that to bring an act within Section 467, 468 and 471 of IPC, it must be shown that a false document, within the meaning of Section 464 of IPC, was prepared. The contention is that none of the clause of Section 464 of IPC, as regards preparing of false document are attracted with regard to allegation of making false number place. It is further submitted that in these premises offence under Section 120B of IPC with regard to criminal conspiracy will also not be made out.
05. The learned Public Prosecutor has candidly conceded that the allegations about making of false number plate of the vehicle, even if accepted at its face value, will not bring the act of the petitioner within the ambit of Section 464 of IPC, which pertains to making of false documents.
06. Hon'ble the apex Court in the case of Mohd. Ibrahim vs. State of Bihar, (2009) 8SCC 751, has considered the ambit and scope of Section 464 as well as 467, 468 and 471 of IPC, which are relevant in this regard. The relevant observations runs as under:
"10. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, Cr.R. No.36/2017 3 shall be punished in the same manner as if he had forged such document.
11. Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents 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 express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
12. Section 464 defining "making a false document" is extracted below:
"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;
(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 a 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 Cr.R. No.36/2017 4 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 alternation; 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.
Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009].
13. The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any Cr.R. No.36/2017 5 false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
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.
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.
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 by reason 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.
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 a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
Cr.R. No.36/2017 607. In the light of the aforesaid, even after accepting all the allegations at their face value, the charges for offence under Section 464, 467, 468, 471 and 120B of IPC are, prima-facie, not made out against the petitioner .
08. The learned trial Court without adverting to the aforesaid legal and factual position has framed the charges under Section 467, 468, 471 and 120B of IPC against the petitioner which is unsustainable.
09. Resultantly, this petition deserves to be and is accordingly, allowed and the charges under Sections 467, 468, 471 and 120B of IPC framed by the learned trial Court in S.T. No.44/2016 qua the petitioner are hereby quashed and the petitioner is discharged of the same.
Certified copy as per rules.
(Ved Prakash Sharma) Judge sumathi