Madhya Pradesh High Court
Anand Pyasi vs The State Of Madhya Pradesh on 28 October, 2021
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 3117/2018
Anand Pyasi & Another
Vs
State of Madhya Pradesh & Another
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Shri R.S. Patel, learned counsel for the applicants.
Shri Ashish Patel, learned P.L. for the respondent
No.1/State.
None for the respondent No.2, though notice has
been served.
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ORDER
(28.10.2021) This revision petition under Section 397/401 Cr.P.C. has been preferred by the applicants being aggrieved by the order dated 25.04.2018 in S.T.No.73/2017 passed by Additional Sessions Judge, Pawai, District-Panna, whereby the learned ASJ has framed the charges against the applicants for the offences punishable under Sections 467/34, 468/34, 471/34, 420/34 and 120-B of the IPC.
2. According to prosecution case, complainant- Gulab Lodhi has filed a written complaint before the 2 Cr.R. No. 3117/2018 concerning Police Station stating therein that on 19.03.2015, he came to knowledge that one Lappu Lal, who residing in the same village of the complainant, has prepared forged documents in the name of complainant for taking KCC loan and also withdrew the amount of Rs.94,500/-out of Rs.98,000/-as sanctioned. Actually, before two years, Lappu Lodhi came to the complainant and took his patta to add the name of his grand-daughter in the scheme of Ladli Laxmi Yojna. After 8 days, Lappu has returned the said patta to the complainant. After that, when Bank officials reached in the house of complainant then he knew that Lodhi along with Branch Manager, present applicants and other staffs of the concerning Bank are involved in cheating with the complainant by making forged documents and also withdrew the amount of Rs.94,500/-. It is also alleged that present applicants and other co-accused have actively participated in the alleged offences. After filing challan, learned Sessions Judge has framed the charges against the present applicants for the offences punishable under Sections 467/34, 468/34, 471/34, 420/34 and 120-B of the IPC.
3. Learned counsel for the applicants submits that present applicants have been falsely implicated in the case. On reading of FIR, no offence is made out against the present applicants. The learned Sessions Judge has erroneously recorded 3 Cr.R. No. 3117/2018 the finding against the applicants. There is no material to show that the present applicants have committed cheating with the complainant or prepared any forged documents. The learned Sessions Judge has committed grave error in appreciating the whole factual scenario and mechanically for framing the charges against the applicants. The framing of charges is a very serious step in Criminal Trial and affects the personal liberty of the applicants, this should not be lightly done. The charges should be framed only if there is sufficient material available on record against the applicants for their guilt. Learned trial Court has failed to appreciate that neither any documents are taken by the applicants from any of the complainants nor prepared any forged documents in their names. There is no specific allegation against the present applicants. Police has seized only Rs.22000/- and Rs.26000/- from the possession of applicant-Ashok Pyasi and applicant-Anand Pyasi respectively. Applicants have enmity with the complainant, due to this, applicants have been falsely implicated in the case as an main accused. The main accused of the case is Pappu Lodhi who committed cheating with the complainant and others and also obtained necessary documents from them. The applicants have no role in the alleged crime. Therefore, the charges framed by the learned Sessions Court is not proper and deserves to be quashed.
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4. On the other hand, learned P.L. for the respondent/State opposes the same by submitting that at this stage of framing the charges, deep merits of the case may not be considered. He further submits that documents available in the charge-sheet are sufficient to show that prima facie, offences are made out against the present applicants. The present applicants have actively participated in the alleged crime. The defence of the present applicants may be considered at the appropriate stage of trial. With the aforesaid, he prays for dismissal of the said petition.
5. Heard and perused the case diary.
6. Before embarking upon the facts of the case, it would be necessary to consider the legal aspects first. Since, by way of filing this revision petition, the applicants have challenged the charge framed by the learned trial Court, therefore, I would prefer to deal with the provision of Section 227 of Code Of Criminal Procedure, 1973, the same reads as under:-
"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for 5 Cr.R. No. 3117/2018 proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
7. If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code of Criminal Procedure, 1973, comes into role, provision is also quoted as under:-
"228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be 6 Cr.R. No. 3117/2018 asked whether he pleads guilty of the offence charged or claims to be tried."
8. In Asian Resurfacing of Road Agency Pvt.Ltd and Anr. v. Central Bureau of Investigation reported in (2018) 16 SCC 299, wherein the Hon'ble Supreme Court has held that petitions challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
9. Therefore, it is manifest that while framing the charges, the Court is required to evaluate the material and documents on record with a view to find out that if the facts emerging therefrom are taken at their face-value, disclose the existence of all the ingredients constituting the alleged offence. The accused has no right to produce any material and deep merits of the case cannot be considered at this stage. The Court should see only the documents annexed with the charge-sheet. The petition challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
10. Before embarking upon the facts of the case, It would be necessary to consider the legal aspect first. First I shall go 7 Cr.R. No. 3117/2018 through the provisions of IPC which are leveled against him. Same are reproduced as under:-
"420. Cheating and dishonestly inducing delivery of property.'Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
467. Forgery of valuable security, will, etc. - Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with 8 Cr.R. No. 3117/2018 imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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.
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 1[document or electronic record].
120-B. Punishment of criminal conspiracy.'(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable 9 Cr.R. No. 3117/2018 as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]"
11. On reading of Section 420 of IPC, it appears that it deals with offence of cheating and dishonestly inducing delivery of property, its essential ingredients are:-
"(i) cheating;
(ii) dishonestly inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens-rea of the accused at the time of making the inducement."
12. Under the IPC, the definition of forgery is provided under Section 463 and according thereof, 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 any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 467 of IPC prescribes punishment for making forgery of valuable security, bill, etc. 10 Cr.R. No. 3117/2018 whereas Section 468 of IPC speaks about the punishment for forgery for the purpose of cheating. So far as Section 471 of IPC is concerned comes to effect when any person used the documents as genuine knowing the fact that the same is forged. Section 464 IPC provides about making a false document and to understand the scope of Section 464 IPC, it would be necessary to read the same, provision is also quoted 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 documents or part of a document;
(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 document, electronic record or electronic signature was made, signed, sealed, executed, 11 Cr.R. No. 3117/2018 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."
13. On careful reading of above quoted provision and pronouncements of Hon'ble Apex Court, it is manifest that a charge of forgery can not be imposed on a person who is not the maker of the same. To convict the accused for the offence of the forgery it is imperative that a false document is made and the 12 Cr.R. No. 3117/2018 accused person is the maker of the same, otherwise, an accused person is not liable for the offence of forgery. The definition of false document is a part of the definition of forgery and both must be read together.
14. Apart from these charges, charge of the offence of Section 120-B of IPC is also framed by the trial Court against the applicant. Section 120-B of IPC prescribed the punishment of criminal conspiracy whereas the definition of criminal conspiracy is provided under Section 120-A of IPC, same is quoted as under:-
"120A. Definition of criminal conspiracy.'When two or more persons agree to do, or cause to be done,' (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.'It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]".
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15. According to Section 120-B of IPC whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment of life or rigorous imprisonment for a term for two years or upwards, shall, where no express provision is made in this Court for the punishment of a such conspiracy, be punished in the same manner as if he had abated such offence. Further, whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
16. After careful reading of the same, it appears that the offence of criminal conspiracy is also a substantive offence in itself and punishable separately. However, most commonly, the charge of criminal conspiracy is framed against an accused person along with the charge of other offences of the IPC or any other law which he may be accused of committing along with other conspirator. It is well settled principle of law of the Honble Apex court that to constitute the offence of criminal conspiracy, an agreement between two or more persons to commit an illegal act is necessary ingredients and it is not essential that the accused person must do and overt act.
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17. After careful reading of aforesaid provision and principle, I revert back to the facts of the case to decide the case.
18. Here in the case, allegation against the present applicants is that being villagers of same village of the complainant, they obtained the documents and signature of various complainants and used the same for forgery and cheating. As per the prosecution, the applicants connivance with other co- accused, prepared the KCC of complainants using forged documents and obtained money. On reading of the statements given by Jhalla, Kallobai, Bala Prasad, Rajju Adiwasi, Munni Bai and Bhagwat Adiwasi, prima facie, it appears that the present applicants have played specific role in preparing the forged documents. They are also conspirators of alleged crime.
19. Therefore, in view of the principle laid down by the Hon'ble Apex Court that as discussed above, prima facie, sufficient material is available on record to constitute the charge of aforesaid offences against the applicants. Deep merits of the case cannot be considered at this stage.
20. Accordingly, this revision petition is hereby dismissed. However applicants shall be a liberty to raise all the grounds before trial Court at the appropriate stage of trial. Needless to say the learned trial Court shall proceed with the case 15 Cr.R. No. 3117/2018 on his own discretion without being influenced from any findings of this Court.
(Rajendra Kumar Srivastava) Judge sp by Digitally signed SAVITRI PATEL Date: 2021.10.29 18:38:15 +05'30'