Allahabad High Court
Smt. Neelam Singh vs State Of U.P. Thru. Prin. Secy. Home, Lko ... on 16 June, 2022
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. Heard Shri Ishuk Ali Yusuf, learned counsel for the appellant, Shri Roshan Babu Gupta, learned counsel for the private respondent and learned A.G.A. for the State.
2. This criminal appeal has been filed by the appellant against the judgment and order dated 22.03.2022 passed by Additional Sessions Judge, Court No.11, Hardoi by which the learned court below has allowed Criminal Misc. Case No.11 of 2021, under Section 340 Cr.P.C. and directing Munsarim to lodge a complaint against the present appellant and her husband, namely, Satyapal Singh, under Sections 193, 465, 471 and 120B I.P.C. within 15 days before the learned Chief Judicial Magistrate, Hardoi.
3. Learned counsel for the appellant has submitted that respondent No.2 lodged false First Information Report against the husband of the appellant and her family members as Case Crime No.0267 of 2017, under Sections 147, 148, 149, 452, 302, 504 and 506 I.P.C., Police Station Kachhauna, District Hardoi. After investigation of the above case, charge-sheet was filed against some other persons and final report was also filed in favour of husband of appellant, and thereafter, case was committed to the Court of Session, which was registered as Session Trial No.111 of 2018 (State vs. Pawan Singh and others) arising out of Case Crime No.0267 of 2017, under Sections 452, 302, 504 and 506 I.P.C., Police Station Kachhauna, District Hardoi.
4. After recording the statements of prosecution witnesses, application under Section 319 Cr.P.C. was moved for summoning of husband of the appellant and court below has passed the summoning order on 03.03.2020. The said order was challenged before this Court in Criminal Revision No.428 of 2020 (Satypal Singh vs. State of U.P. and others). During the pendency of the aforesaid revision, husband of the appellant fallen ill and as per the advise, RTPCR test was conducted, vide Sample Case I.D. No.HARN0017077253, and thereafter, report was provided to him informing that he is covid positive, therefore, he must have quarantined.
5. Learned counsel for the appellant has submitted that appellant moved an application before the court below and requested that no coercive measure shall be taken against her husband, but the application was rejected by the court below on 01.01.2021. As the information was also given by the Police to the court below that husband of the appellant is covid positive as per the report of S.G.P.G.I., Lucknow, therefore, date i.e. 19.01.2021 was fixed by the court below. In the meantime, husband of the appellant again gave his sample, vide Sample Case I.D. No.HARN0020983344, in which, he was reported negative and the report was generated on 22.01.2022. As there was delay in the report of the sample given on 14.01.2021, then another sample was given by the husband of the appellant, vide case ID No.UNNN0021491592 and report was generated on 27.01.2022, in which, husband of the appellant was reported negative.
6. Learned counsel for the appellant submitted that respondent No.2 and his father having long criminal history, which is mentioned in para-12 and 13 of the appeal. As the respondent No.2 has filed false cases against the husband of the appellant and her family members and only with intention to victimize the appellant and her husband, respondent No.2 filed application under Section 340 Cr.P.C. for prosecuting the appellant, her husband, Advocates and Station House Officer, Police Station Kachhauna, District Hardoi, under Sections 193, 465, 473 read with Section 120B I.P.C., which was registered by the Additional Sessions Judge, Court No.11, Hardoi as Criminal Misc. Case No.11 of 2021 and detailed reply was given and it was submitted that neither the appellant nor her husband have manufactured any documents as the question does not arise for second covid test of husband of the appellant after fifteen days, if he was not informed positive.
7. Learned counsel for the appellant has submitted that court below has presumed that appellant and her husband had manufactured the alleged covid report of Case I.D. No.HARN0017077253 as court below failed to consider the subsequent covid test report of husband of appellant i.e. Case ID No. HARN0020983344 sample collection dated 14.01.2021 and Case ID No.UNNN0021491592 sample collection dated 20.01.2021. As in the subsequent tests, he was reported negative.
8. Learned counsel for the appellant has also relied on the decision of Hon'ble Supreme Court in the case of Sheila Sebastian vs. R. Jawaharaj and Another reported in (2018) 7 SCC 581 and submitted that beneficiary of the alleged documents will not be prosecute unless it is proved that he himself was the manufacturer of the documents.
9. Learned counsel for the appellant has further submitted that summoning order, under Section 319 Cr.P.C. was passed by the court below related to husband of the appellant was set aside by the Co-ordinate Bench of this Court in Criminal Revision No.428 of 2020 Hence, indulgence of this Court is necessary.
10. Learned Additional Government Advocate as well as learned counsel for the respondent No.2 vehemently oppose the prayer of appellant and submitted that husband of appellant was summoned under Section 319 Cr.P.C. as he was avoiding the proceeding of trial and only with intention to linger on the proceeding, incorrect covid report was provided to the Police, which was informed to the Court and case was differ and coercive measure was not initiated on the date fixed as the application of appellant was also placed before the court below for exemption of her husband, which was also rejected. When it came into the notice of the respondent No.2 about the forged report of covid positive of the husband of appellant, then application under Section 340 Cr.P.C. was moved, which was registered as Misc. Case No.11 of 2021 and after considering all the details of the respondent No.2, impugned order dated 22.03.2022 was passed with the direction to the court officer to file a complaint against the appellant and her husband, under Sections 195, 465, 471 and 120 B I.P.C. within fifteen days and there is no illegality in the order passed by the court below, but they do not dispute on the covid report of the husband of the appellant, vide Case ID No.HARN0020983344 sample date 14.01.2021 and Case ID No.UNNN0021491592 sample date 20.01.2021 and they also do not dispute on the fact that husband of the appellant was summoned, under Section 319 Cr.P.C. by the trial court, vide order dated 03.03.2020, which was challenged before the Co-ordinate Bench of this Court in Criminal Revision No.428 of 2020, which was allowed, vide order dated 17.03.2021 and order of the trial court, under Section 319 Cr.P.C. dated 03.03.2020 was quashed. They also do not dispute the fact that there is no evidence available on record at the time of passing the order that the document in question was manufactured either by the appellant or by her husband.
11. Considering the arguments of learned counsel for the parties and going through the entire records, it is admitted case of the parties that husband of the appellant was named in the FIR No.267 of 2017 (supra) and after detailed investigation, name of husband of appellant was deleted from the charge-sheet as no evidence was found against him and charge-sheet was filed against Pawan Singh and others. After taking cognizance, case was committed to the Court of Sessions, which was registered as S.T. No.111 of 2018. After recording the prosecution evidence, application under Section 319 Cr.P.C. was moved and husband of appellant, namely, Satypal Singh was summoned by the trial court, vide order dated 03.03.2020, under Section 319 Cr.P.C. and the aforesaid summoning order was challenged before the Co-ordinate Bench of this Court in Criminal Revision No.428 of 2020. As the trial court was proceeded in the trial and the case was listed on 01.01.2021 as the warrant was issued against the husband of the appellant and Police went to her house, then it was informed to him that husband of appellant was found covid positive and he is under treatment in Lucknow and Police reported to the trial court and documents provided by the family members was placed before the court and the case was adjourned as no order under Section 82 Cr.P.C. was passed against Satypal Singh and matter was fixed on 19.01.2021. One application was also moved by the appellant for exemption, but the same was rejected as she had no locus standai in the criminal case. As in the impugned order, there is no whisper that the alleged report was prepared either by the appellant or by her husband.
12. It is also evident that two samples were also given by the husband of the appellant on 14.01.2021 and 20.01.2021, vide Case ID. No.HARN0020983344 and Case ID. No.UNNN0021491592. The aforesaid both the tests are not disputed, in which, husband of the appellant was found negative. As it is well settled by the Hon'ble Supreme Court in the case of Sheila Sebastian vs. R. Jawaharaj (supra) that mere being a beneficiary of the documents will not be prosecute unless it is found that he himself was the manufacture of the documents. As in the present case, it is not a case that the appellant or her husband manufactured the alleged documents. As is also evident that husband of the appellant had given the sample for covid positive in continuation, therefore, it cannot be presumed that the appellant or her husband had manufactured the documents in question. The relevant part of the decision of Hon'ble Supreme Court in the case of Sheila Sebastian vs. R. Jawaharaj (supra) are being reproduced as under:-
17. At this juncture, it is pertinent to have a look at the definition of "forgery" and the precedents on this aspect.
"463. Forgery.--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."
18. It would also be necessary to understand the scope of Section 464 IPC in this context:
"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 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 a 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 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.
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.
Explanation 3.--For the purposes of this section, the expression "affixing electronic signature" shall have the meaning assigned to it in clause (d) of sub-section (1) of Section 2 of the Information Technology Act, 2000."
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e. making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 IPC. As Collin, J., puts it precisely in Dickins v. Gill [Dickins v. Gill, (1896) 2 QB 310 (DC)] , a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] that: (SCC p. 756, para 14) "14. ... 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 practising deception, or from a person not in control of his senses."
22. In Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] , this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467 IPC) and using of forged document as genuine (Section 471 IPC). While considering the basic ingredients of both the offences, this Court observed that to attract the offence of forgery as defined under Section 463 IPC depends upon creation of a document as defined under Section 464 IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471 IPC even if title of property did not vest in the executant.
23. The Court in Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] observed that: (SCC p. 757, paras 16-17) "16. ... There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of "false documents", it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
24. In Mir Nagvi Askari v. CBI [Mir Nagvi Askari v. CBI, (2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718] , this Court, after analysing the facts of that case, came to observe as follows: (SCC p. 687, para 164 "164. A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document."
25. Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. "Forgery" and "fraud" are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that "false document". Hence, neither Respondent 1 nor Respondent 2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as the appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
27. A reasonable doubt has already been thoroughly explained in Latesh v. State of Maharashtra [Latesh v. State of Maharashtra, (2018) 3 SCC 66 : (2018) 2 SCC (Cri) 235] wherein "reasonable doubt" has been enunciated by this Court as (at SCC p. 83, para 46) "a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis".
28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
29. This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The investigating officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The investigating officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the accused, still the accused could not be convicted. The laches in the lopsided investigation goes to the root of the matter and fatal to the case of prosecution. If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal. In the process, the common man will lose confidence on the criminal justice delivery system, which is not a good symptom. It is the duty of the investigating officer, prosecution as well as the courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice."
13. In the present case, no such evidence was found that the alleged report was prepared by the appellant or her husband. As the summoning order dated 03.03.2020 was also set aside by the Co-ordinate Bench of this Court in Criminal Revision No.428 of 2020, vide order dated 17.03.2020. The relevant paragraphs of the aforesaid criminal revision are being reproduced as under:-
"27. To arrive at deserve satisfaction for summoning a person as an additional accused under Section 319 Cr.P.C., it depends on the quality of the evidence available on record. It is the duty of the trial Court to consider the evidence collected by the Investigating Officer during the course of investigation and power under Section 319 Cr.P.C. should not be exercised merely on statement of the complainant or the witnesses who have reiterated their statements recorded under Section 161 Cr.P.C. during the course of investigation which the investigating officer did not find credible and cogent on the basis of other plethora of evidence collected by him.
28. In the present case, learned trial Court has not considered overwhelming evidence collected by the Investigating Officer during the course of investigation which would demonstrate that the present revisionist was not present at the time and place of occurrence. I find order impugned herein is unsustainable and against law. Thus the revision is allowed and order dated 03.03.2020 passed by Additional Sessions Judge, Court No.11, Hardoi in S.T. No.111 of 2018: State vs. Pawan Singh and Ors. arising out of Crime No.267 of 2017, under Sections 452, 302, 504, 506 I.P.C., Police Station Kachauna, Hardoi is hereby quashed."
14. In view of aforesaid facts and circumstances, I am of the view that court below at the time of deciding the Criminal Misc. Case No.11 of 2021, nowhere it is found that the alleged report was prepared by the appellant or her husband. As it is undisputed that subsequent covid test of the husband of the appellant was also conducted, in which, he was found negative, therefore, order dated 22.03.2022 passed by the Additional Sessions Court No.11 Hardoi in Criminal Misc. Case No.11 of 2021 along with consequential proceedings are hereby quashed.
15. Accordingly, the appeal is allowed.
(Rajeev Singh,J.)