Bombay High Court
State Of Maharashtra vs Ramchandra Keshav Bhala on 16 April, 2004
Equivalent citations: 2004(3)MHLJ863, 2004 CRI. L. J. 2823, 2004 ALL MR(CRI) 2139, (2004) 22 ALLINDCAS 767 (BOM), (2004) 3 MAH LJ 863, (2004) 4 RECCRIR 812, (2005) 1 CURCRIR 117, (2004) 2 BOMCR(CRI) 919, 2004 (3) BOM LR 985, 2004 BOM LR 3 985
Author: A.S. Aguiar
Bench: A.S. Aguiar
JUDGMENT A.S. Aguiar, J.
1. This appeal arises from the Judgment and Order dated 16th April, 2001 passed by the Metropolitan Magistrate, 14th Court, Girgaon, Mumbai, in Case No. 15/P/1999 (4/I&R/97) acquitting the accused of the offences punishable under Sections 465, 468 and 471 read with Sections 419 and 420, Indian Penal Code.
2. The said Judgment and Order is inter alia impugned on the ground that the lower Court failed to appreciate that the accused by putting the name and signature of PW 3 Jamnadas Keshavdas Bhala and obtaining the bona fide certificate from the School Authorities, had impersonated himself as Jamnadas Keshavdas Bhala and obtained his bona fide certificate. It is submitted that the act of the accused is dishonest and fraudulent and that had the accused mentioned his name in the application, the school authorities would have refused to give him the bona fide certificates.
3. The brief facts of the case are that the accused who is the uncle of the complainant and brother of the complainant's father made an application (Exhibits P-4 and P-5) to the school and college authorities, respectively to obtain the bona fide student certificates in respect of his real brother PW 3 Jamnadas Keshavdas Bhala. The accused applied for the said certificates in order to contradict the claim of PW 3 in the testamentary proceedings pending in this Court that PW 3 was an illiterate person. The learned Advocate for the accused in the civil proceedings called upon the complainant PW 1 Harish and his father Jamndas to take inspection of the School Leaving Certificates as well as Jaihind College Certificate. On taking inspection, Complainant's father realised that the said certificates were issued although he had not personally made any applications to the school or college authorities for the bona fide Certificates from the said school or college. On making further inquiries with the college and school authorities, it was found that the applications for bona fide certificates were made by the accused himself and that the accused had signed the applications as Jamnadas Keshavdas Bhala. Hence, the said complaint. The matter was sent to the police for investigation under Section 156(3) and chargesheet came to be filed in this Court for offences under Sections 465, 468, 471 read with Sections 419 and 420, Indian Penal Code.
4. The accused has admitted that he made applications to the school and college authorities but states that he had forgotten to write that he is making the application on behalf of his brother and he was doing so pursuant to General Power of Attorney which he had from his brother. The learned trial Judge rejected the defence contention but acquitted the accused of the said offences relying upon the decision of the Supreme Court in a case of 1) Jibrial Diwan v. State of Maharashtra reported in 1997 Cri.L.J. 4070 and 2) R. R. Diwakar and Ors. v. B. Guttal reported in 7975 Cri.L.J. 1990.
5. In order to constitute the offence of forgery under Section 463, I.P.C., it is necessary that the false document must be made with the intent to cause damage or injury to the public or any person or to support any claim or title or to cause harm to 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. The important ingredient, therefore, is that the document must be made either with dishonest or fraudulent intention. An act is said to be done dishonestly when it is done with the intention of causing wrongful gain to one person or wrongful loss to another person. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
6. Admittedly, in the present case, the accused had made the applications for bona fide student certificates in the name of his brother PW 3 Jamnadas knowing fully well that he would not have got the said certificates if he had applied in his own name and not in the name of his brother PW 3. The intention to deceive is, therefore, clear. Hence, it is contended that the accused, has committed the offence of impersonation. However, the ingredients necessary for attracting the relevant penal provisions for cheating require that the act must be done fraudulently or dishonestly. The Supreme Court in the aforesaid case, ha$ clearly held that the offence punishable under Section 465 cannot be attracted unless the document was prepared with dishonest or fraudulent intention. The purpose of making the applications for bona fide certificates was to use the same in civil proceedings in Court for the purpose of exposing the false statement made by PW 3 in the said proceedings and the production of bona fide certificates of PW 3 as student in the school and college clearly contradicts the claim of PW 3 that he was illiterate.
7. No. doubt, the accused has made the applications for the bona fide student certificates by deceiving the school and college authorities into believing that the applications were being made by the brother of the accused himself in whose name the certificates are issued. But intention 'to deceive' is not the same as an intention to defraud. Nor can it be said that the applications were made dishonestly, as no wrongful loss has been suffered nor wrongful gain made. In order to attract the provisions of Sections 465, 467, 471 read with Sections 419 and 420, Indian Penal Code, it is important that the act must be done fraudulently or dishonestly. It cannot be said that either the school authorities or college authorities have suffered any loss nor can it be said that the respondent has made any wrongful gain by making the said applications and practising deception upon the school and college authorities.
8. In the light of the decision of the Supreme Court in the aforesaid case of Jibrial Diwan v. State of Maharashtra reported in 1997 Cri.L.J. 4070, the offence with which the present respondent has been charged, therefore, cannot be said to be made out and hence, the learned trial Judge was right in acquitting the accused-respondent. The learned trial Court has passed a reasoned order. I, therefore, see no reason to interfere with the same. Hence, appeal of the State is rejected and dismissed.
Appeal disposed of.