Madhya Pradesh High Court
Surendra Sharma vs The State Of Madhya Pradesh on 5 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1817
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
Criminal Revision No.3126/2016
Surendra Sharma
Vs
The State of M.P.
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Shri Uttam Maheshwari, learned counsel for the applicant.
Shri Manoj Kumar Singh, learned P.L. for the respondent-
State.
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ORDER
(05.09.2019) Petitioner has filed this Criminal Revision under Section 397/401 of Cr.P.C. for setting aside the impugned order dated 22.09.2016 passed by learned 2nd Additional Sessions Judge, Chhindwara, in Session Trial No.75/2016 whereby the learned Sessions Judge has framed charges against the present petitioner/applicant for the offences punishable under Sections 467, 468, 420 and 471 read with Section 120-B of the IPC.
2. Petitioner submits that the respondent-State filed a final report before the 2nd Additional Sessions Judge, Chhindwara, against the present petitioner/applicant and other co-accused persons. The complainant-Mr. Abdul Jafar lodged a written complainant before the Police Station-City Kotwali, District Chhindwara stating that co- accused Kapil Yadav, who was working in Shriram Transport Finance Company Limited as an agent has misused his documents and inserted his name as guarantor to finance a vehicle in the year 2009- 2 Cr.R.No.3126/2016 2010 in favour of other co-accused Mr. Aslam Khan. Complainant became aware of the aforesaid misuse of his documents when he received the Arbitral Award dated 16.10.2014 in favour of Shriram Transport Finance Company Limited whereas he was not having any acquaintance with co-accused Aslam Khan, therefore, in forged manner his name and documents have wrongly been used by co- accused Kapil Yadav to complete the loan transaction between co- accused Aslam and the said company. After filing challan, learned Sessions Judge has framed the charges against the present applicant/petitioner for the offences punishable under Section 467, 468, 420 & 471 all read with Section 120-B of IPC.
3. Learned counsel for the applicant/petitioner submits that during investigation, respondent authority has included the name of the present applicant/petitioner as co-accused, even though no complaint was lodged by the complainant against him and none of the witnesses have alleged against present applicant/petitioner. Shriram Transport Finance Company has denied the signature of the present applicant/petitioner on the said loan documents. It was also pointed out by the said company that the present applicant/petitioner was on official tour during that period in which the alleged crime is suggested to have taken place, therefore, his forged signature in nearly 12 transactions are also under scrutiny by the said company. It is also alleged that the signatures of present applicant/petitioner do not tally with other signatures verified by the company. The said documents containing signatures of the applicant/petitioner have been forwarded by the respondent authority for verification of signature to 3 Cr.R.No.3126/2016 Handwriting Expert on 21.04.2016, but when challan was filed by the respondent/State before the Court below, the said verification report was not received now. The report has been received and according to it signature of present petitioner is not found similar with the signature, mentioned in the disputed document.
4. Learned counsel for the applicant/petitioner further submits that complainant made a complaint against other co-accused persons and stated that co-accused Kapil cheated the complainant by misusing the forged and fabricated documents for loan transaction of co-accused Aslam Khan, therefore, in absence of any role of the present applicant/petitioner, no offence is made out under Section 420 of the IPC against the present petitioner. The learned trial Court did not appreciate the fact that the documents of the complainant were misused by co-accused Kapil Yadav and annexed with loan agreement in favour of the other co-accused person viz. Aslam Khan. As per report of the complainant, the present applicant/petitioner did not annex the said documents, as he did not receive the same, further he has not verified the said documents in the favour of the co-accused Aslam Khan, therefore, no case is made out against the present applicant/petitioner under Section 467 of the IPC. Further, in absence of him on the said date, no offence is also made out against the present applicant/petitioner for the offence punishable under Section 468 of the IPC. The signatures of the present applicant/petitioner is yet to be verified by the handwriting examiner and report has also been sent to S.P. Chhindwada. The signatures of the petitioner are primarily denied by the Shriram Transport Company, therefore, no 4 Cr.R.No.3126/2016 offence is made out against the present applicant/petitioner. Therefore, it is evident that at the time of sanction of loan from Shriram Transport Company, common intention was present with the co-accused Kapil Yadav and Aslam Khan. It is also evident that the present applicant was on official tour during the said period and his signature on the said agreement is denied by the said company which has been verified by the competent authority, therefore, he cannot be attributed with common intention with anyone else. Therefore, he prays for setting aside the said impugned order dated 22.09.2016.
5. Learned counsel for the respondent/State opposes the petition by submitting that the order passed by the learned Sessions Court and framed charges against the present applicant is correct and there is no material is available in present petition therefore, deserves to be dismissed.
6. Heard both the parties and perused the case diary.
7. It is evident from the record that respondent/State has filed a final challan before the Sessions Court and Sessions Judge has framed the charges against the present applicant/petitioner for the offences punishable under Sections 467 read with Sections 120-B, 468 read with Section 120-B, 420 read with Section 120-B and 471 of the IPC. The allegation against present petitioner is that he connivance with other co accused person entered into a conspiracy and has made forged documents with respect to complainant which basis they got loan sanction to buy a vehicle and cheated the complainant. He has also manipulated the documents and prepared forged identity card of complainant and mentioned the complainant as 5 Cr.R.No.3126/2016 a guarantor in loan transaction. He has used all the documents knowing that the same were forged.
8. Before embarking on the facts of the case, It would be necessary to consider the legal aspect first. First I shall go 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 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]. 120B. 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, 6 Cr.R.No.3126/2016 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 as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]"
9. On careful reading of the relevant provisions, it is manifest that definition of forgery is provided under section 463 IPC and according to it 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.
10. As far as offence under section under section 467 and 471 IPC are concerned, it comes to role when the Forgery is committed with regard to valuable security, will, etc. and when same forged is used as genuine a offence under section 471 would attract in the case. It is observed in the case of Md. Ibrahim and Ors. vs. State of Bihar and Anr. [(2009) 8 SCC 751] that :
" 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 a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
11. Further, The Hon'ble apex Court said that to attract the offence of forgery as defined under section 463 IPC depend upon creation of a document as defined under section 464 IPC. 7 Cr.R.No.3126/2016
12. Now, the offence under section 468 IPC is concerned it applies only to the cases where forgery is for the purpose of cheating. Section 468 IPC is to find out as to whether the accused deceived someone by making false documents. To proof the case, prosecution has to establish that the accused committed forgery of documents and he did so with an intention that same shall be used for the purpose of cheating.. If the prosecution were to establish forging of the documents and intending to use such forged documents for the purpose of cheating, then only the accused is liable for being convicted. A burden lies upon the prosecution to prove ingredients of Section 463 IPC.
13. The another charge of section 420 IPC deals with cheating and its essential ingredients are:-
(i) cheating;
(ii) dishonest 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.
14. Charge for making conspiracy is also framed by the trial Court. On reading of the above said provisions, it is manifest that a criminal conspiracy exists went two or more people agree to commit any unlawful act, then take some steps towards it completion. The offence of criminal conspiracy constitute by two ways, first by an illegal act or secondly by an act which may be legal but done through an illegal means, such agreement is designated as a criminal conspiracy.
8Cr.R.No.3126/2016
15. Further, in another pronouncement of Hon'ble Apex Court in the case of State of Maharastra and others Vs. Somnath Thapa and others reported in (1996) 4 SCC 659 in para 24 it is held as under:-
"The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
16. Now, this Court shall deal with the facts of the present case. It is evident from the record that the in FIR complainant Abdul Jafar filed a written complaint against Shriram Finance Company and 3 persons namely Mohd. Jahid, Kapil Yadav, Mohd. Aslam. According to complainant he was surety of Mohd. Jahid when he got finance from Shri ram company in the year 2009-10. He stated that he did not take guarantee of any other whereas in the present case he was made a guarantor of Mohd. Aslam with regard to vehicle No. MP-28-G-035. He alleged that all the misappropriation and forged was committed by Kapil Yadav who was working in Shriram Finance Company. He has not made any allegation against the present petitioner. Police has also recorded the statements of complainant and witnesses, in which also no allegation was made against the present petitioner. Police has also communicated to Branch Manager 9 Cr.R.No.3126/2016 Shriram Finance Company Ltd. Chhindwada via sending letter and in this regard in reply the Branch Manager wrote that co-accused Kapil Yadav was working at the relevant time and the disputed vehicle financed by him in the year 2009. So far as in reply of inquiry with regard to present petitioner is concerned, Branch Manager wrote that in the alleged documents, signatures do not match with signature of petitioner and during the said period he was on tour. He further expressed possibility of false signature made by field officer. He further stated that the case relating to present dispute did not finalize by the present petitioner. Police has also call handwriting expert report and according to it signatures found in the forged documents do not match with signature of present petitioner.
17. Thus, it is evident from the case diary that present applicant was not present at the time of preparation of the said forged documents and this fact has also been verified by the said company. It is also evident from the record that the present applicant/petitioner's signatures do not match with the signature of the present applicant/petitioner in the said agreement and signature of present petitioner has also been denied by the said company. Therefore, it is evident that the learned Sessions Court has not appreciated the aforesaid fact before passing the said impugned order and framed the charges against the present applicant. Therefore, this order is not proper.
18. Thus, there is grave irregularity found in the order of the Sessions Court. Therefore, this petition filed by the petitioner/applicant under Section 397 reach with Section 401 of the 10 Cr.R.No.3126/2016 Cr.P.C. is allowed and impugned order dated 22.09.2016 in Sessions Trial No.75/2016 passed by learned II Additional Sessions Judge, Chhindwara is hereby set-aside and it is directed that the applicant/petitioner shall stand discharged from the offences under Sections 467, 468, 471 and 420 all read with Section 120-B of IPC. However, it is made clear that during trial if the learned trail Court found that from the evidence if an offence appears against the present petitioner then trial Court is free to proceed against him in accordance with law.
19. A copy of this order be sent immediately to the trial Court for necessary compliance.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.07 12:47:06 +05'30'