Madhya Pradesh High Court
Dinesh Sahu vs The State Of Madhya Pradesh on 3 October, 2017
THE HIGH COURT OF MADHYA PRADESH
CRR-1462-2015
(DINESH SAHU Vs THE STATE OF MADHYA PRADESH)
03-10-2017 Order Number :21
Shri Ajay Mishra, learned counsel for the petitioners.
Shri Bhuwan Gautam, learned Public Prosecutor for
respondent/State.
This is a petition under section 397 r/w 401 of the Cr.P.C. calling in question the legality, propriety and correctness of the order dated 12.08.2015 passed by XI ASJ, Indore in S.T.No.420/2015 whereby charges under section 420, 467 and 468 r/w 120-B of the IPC have been framed against the petitioners Dinesh Sahu, Chetan Sahu and other co-accused persons.
2. As per prosecution, on 2.10.2014 on the basis of secret information received by police, a raid was conducted at the premises of Shubham Industries A-5 A, Sector 'E', Sanwer Road, Industrial Area, Indore.
3. Allegedly, in this raid machinery and other items including packaging material used for packaging of different brands of pure Ghee and some containers of spurious Ghee were recovered. The factory was licensed in the name of Deepak Tak under the license issued by Food Safety and Standared Authority for running a firm under the name and style of Shubham Industries. During investigation certain wrappers to be used for packaging of packets of ghee were recovered from the possession of petitioners Chetan Sahu and Dinesh Sahu respectively, vide seizure memo dated 21.11.2014 and 20.3.2015. During investigation it was further revealed that the premises in question was leased out by General Manager, District Trade and Industries Center, Indore to petitioner Dinesh Kumar Sahu, the proprietor of Shubham Industries. It was further revealed that Dinesh Sahu had further sub let/assigned on lease this premises to Deepak Tak. After completion of investigation, appropriate proceedings under the Food Safety and Standards Act were initiated against the petitioners and other persons before Adjudicating Officer, Indore which have since been concluded vide order dated 23.2.2016 passed by the Adjudicating Officer.
4. The police also filed charge-sheet for offences under sections 420, 468, 468, 120-B, 193 and 272 of the IPC against six persons including the petitioner, pursuant to which learned trial court vide the impugned order has framed the charges against the petitioners.
5. The contention of learned counsel for petitioners is that even if all the allegations made in the charge- sheet are accepted on their face value, still the offences under section 420, 467 and 468 r/w sec.120- B of the IPC are not prima facie made out against the petitioners because there is nothing on record to connect the petitioners with the aforesaid offence as even prima facie nobody was cheated or deceived nor any false document within the meaning of section 464 of the IPC was prepared which is sine qua non to constitute the offence under section 467 and 468 of the IPC. It is further submitted that learned trial court while framing the charges has not adverted to the aforesaid factual and legal aspects of the matter, therefore, the impugned order to the extent it relates to framing of charge under sections 420, 467 and 468 and 120-B of the IPC against the petitioners is liable to be quashed and petitioners deserve to be discharged.
6. Per contra, it is submitted by learned counsel for the State that on the basis of material available in the chargesheet, necessary ingredient to constitute the offence under sections 420, 467, 468 and 120-B of the IPC are made out against the petitioners, therefore no interference is called for in the impugned order.
7. I have heard learned counsel for the parties and perused the record.
8. Cheating has been defined in section 415 of the IPC which reads as under :-
415. Cheating - Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any other 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".
9. To constitute the offence of cheating within the meaning of section 420 IPC, somebody should be deceived by being fraudulently or dishonestly induced to deliver any property to any person or to make, alter or destroy the whole or any part of valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security.
10. In the instant case there is nothing to indicate that the petitioners had induced any person to deliver any property to any person or to make, alter or destroy the whole or any part of valuable security or anything which is signed or sealed and is capable of being converted into a valuable security. It is not the case of prosecution that somebody was induced to purchase or procure the spurious ghee and that such person indeed on the basis of such inducement, parted away with any property or valuable security. In absence of any such allegation, the offence under section 420 IPC against the petitioners cannot prima facie be made out.
11. Section 467 IPC provides in respect of Forgery of valuable security, will etc. while section 468 IPC deals with Forgery for the purpose of cheating. To constitute the offence under sections 467 and 468 of IPC, there must be making of false documents within the meaning of section 464 of IPC which comprises of three clauses and reads as under :-
"464. Making a false document - A person is said to make a false document or false electronic record -
firstly - who dishonestly or fradulently
(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 (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, 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 any 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.
12. In Mohd. Ibrahim vs. State of Bihar, (2009) 8 SCC 751, Hon'ble the apex Court has considered the applicability of Sections 464, 467 & 471 of IPC. Para - 10 to 14 of the report which are relevant in this regard run 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, 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 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 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."
13. It is not the case of the prosecution that in the instant case the petitioners dishonestly or fradulently have made signed, sealed or executed a document with an intention of causing it to be believed that such document or a part of document was made signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority they knew that it was not made, signed, sealed, executed or affixed nor it is the case of the prosecution that the petitioners without lawful authority dishonestly or fradulently have altered a document or any material part thereof after its execution either by themselves or by any other person. It is also not the case of the prosecution that the petitioners dishonestly and fraudulently caused any person to sign, seal, execute or alter a document or to affix his signature knowing that such person by reason of unsoundness of mind or intoxification or deception practised upon him, does not know the contents of the document or the nature of the alteration.
14. Reference can be made to the decision of this court in the matter of Bansilal Agarwal Vs. State of M.P. (M.Cr.C.No.8629/2009) Order dated 3.2.2010 wherein following observations have been made in para 7 :-
"7. On consideration of the rival contention of both the counsel it is pertinent to note that the police had also registered the case against the applicants under the National Security Act and that registration has been challenged before the Division Bench of this Court as Writ Petition No.12015/09, wherein the Division Bench of this Court while ascertaining the legal ground for the detention of the applicant Bansilal under the National Security Act came to the conclusion that prima facie if some adulterated food articles were found in the premises of the applicant then certainly on that basis the case under section 420 IPC cannot be registered when the act for storing the adulterated articles has been specifically punishable under the Special Act. It is useful to quote the relevant para of the judgment passed by the Division Bench, which reads here as under :-
"The list of the cases registered against him nowhere shows that any of the case is in relation to misbranding or trying to sell the material manufactured by him in some different name. True it is that in some of the cases offences under Section 420 of the Indian penal Code have been registered. Though the question is not directly before us, but we will have to observe that such registration in itself would not be sufficient because the First Information Reports do nowhere say that who were cheated and how an ofence punishable under Section 420 of the Indian Penal Code is made out. We are of the prima facie opinion that offences punishable under section 420 of the Indian Penal Code are not made out because there is no material on record to show that somebody was cheated. It is nobody's case that the manufacturer or supppliers of ghee persuaded somebody to part with their property by telling them that the petitioners would be selling them pure ghee and by that further pursuaded them that they would be getting pure ghee. There is nothing on record to show or suggest that somebody ever made any complaint that in absence of such a persuasion, he would not have purchased ghee nor would have parted with his property as price of ghee. Be that as it may, the question before us is that whether registration of an offence under section 420 of the Indian Penal Code and in some of the cases registration under section 188 of Indian Penal Code would add to the gravity for purposes of detention."
15. In view of aforesaid, in the considered opinion of this court in the instant case necessary ingredients to constitute an offence under section 420, 467 and 468 of the IPC r/w 120-B of the IPC are totally missing. Learned trial court has not looked into the aforesaid aspect of the matter therefore the impugned order to the extent it pertains to framing of charge for the aforesaid offences against the petitioners deserves to be quashed.
16. Accordingly, this petition is hereby allowed and the impugned order framing of charge u/s 420, 467 and 468, 120-B of the IPC is hereby quashed. C.c. as per rules.
(VED PRAKASH SHARMA) JUDGE