Madhya Pradesh High Court
Himanchal Sharma vs The State Of Madhya Pradesh on 18 June, 2018
THE HIGH COURT OF MADHYA PRADESH
1
CRR.790.2017
Himanchal Sharma
Vs.
The State of Madhya Pradesh
Gwalior, Dated : 18.06.2018
Shri S.K. Tiwari and Shri Gagan Sharma,
learned counsel for the petitioner.
Shri R.S. Yadav, learned Public Prosecutor, for
the respondent/State.
1. Revisional powers of this Court u/s 397/401 of Cr.P.C. are invoked to assail the order dated 11.07.2017 passed by the III Additional Sessions Judge, Gwalior (M.P.) in ST No.117/2017 framing charges against the petitioner u/s 170, 171, 465, 467, 468 & 420 IPC.
2. Pertinently, the trial to the extent it relates to charges u/s 420, 467, 468 of IPC has since been stayed by interim order of this Court dated 05.09.2017 which continues to subsist till date.
3. Learned counsel for the rival parties are heard on the question of admission and final disposal.
4. Learned counsel for the petitioner submits that no case for cheating as defined u/s 415 IPC or that of forgery as contemplated u/s 467 and 468 is made out. It is submitted that the allegations if taken on their face value disclose an offence punishable u/s 170 and 171 of IPC but not of forgery and cheating. It is, thus, submitted that the order of framing of charges to the extent of challenge as made above deserves to be set aside.
THE HIGH COURT OF MADHYA PRADESH 2 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh
5. The FIR dated 24.06.2016 bearing Crime No.202/2016 registered at Police Station Vishwavidyalaya, Gwalior (M.P.) lodged by Sub- Inspector Harish Tripathi is to the effect that on reliable information received from the informant, the said informant of the FIR along with police personnel approached the new collectorate where he saw "Bolero" vehicle parked behind the collectorate in which a young man was found sitting. On approaching, the young man sitting in the vehicle was found to be wearing Khaki dress with two stars each on both his shoulders along with a logo of M.P. Nagar Sena and his name-plate pinned on the front pocket showing the name Himanchal Sharma (petitioner). He was further found wearing read coloured belt with M.P. Nagar Sena logo embossed over it. He was also sporting a pair of red colour shoes with a black pistol tucked in his belt. Bolero vehicle was having a blue coloured beacon on top. On being asked about his identity, the young man disclosed his name as Himanchal Sharma and also disclosed his residential address to be of Kailaras, Morena (M.P.) and that he claimed himself to be Platoon Commander in Home Guards. After making further query and search of the vehicle, identity card was shown by the said person having seal of District THE HIGH COURT OF MADHYA PRADESH 3 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh Commandant, Home Guards, Indore. On making further queries, it was found that the said person who happens to be the petitioner was posing as the District Commandant on forged documents which were seized from him. The uniform worn was also seized and the offences punishable u/s 170, 171, 465, 467, 471 & 420 IPC were alleged. Formal arrest was made. A disclosure statement under Section 27 of the Evidence Act was recorded in which the petitioner disclosed that being impelled by the jealousy of his friends working in the disciplined services the petitioner posed as a Home Guard Platoon Commander for which he got a uniform stitched and documents forged and was about to leave in his vehicle to Morena when the police intercepted him. Statements of police personnel Harish Kumar, Anita were recorded along with another Section 161 statement of Pradeep Mishra, an independent witness who had witnessed the seizure of documents and uniform from the petitioner. 5.1 So far as the charges framed u/s 170 and 171 of IPC are concerned, the same prima facie appear to be made out as they define and prescribe punishment of offences of personating as a public servant and wearing garb or carrying token used by public servant with fraudulent intent.
THE HIGH COURT OF MADHYA PRADESH 4 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh 5.2 The other offences alleged which are vehemently assailed by the learned counsel for the petitioner are of cheating and forgery. The offence of cheating punishable under Section 420 is defined u/s 415 of IPC. For ready reference and convenience, Section 415 and 420 of IPC are reproduced as under:
"Cheating
415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any 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".
Cheating and dishonestly inducing delivery of property.
420. 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."
5.3 In this regard, Section 420 of IPC as alleged THE HIGH COURT OF MADHYA PRADESH 5 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh against the petitioner is taken up first for consideration as below:
5.3(a) The offence u/s 420 of IPC is divided into two principal ingredients. The first being the act of cheating and thereby dishonestly inducing any person and second is that the person so cheated and deceived is impelled to deliver any property 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. Thus, the twin ingredients of the act of cheating and thereby inducing the person so cheated to delivery property, valuable security or anything which is signed or sealed or destroying wholly or partly any valuable security to his/her disadvantage, should co-exist to constitute cheating. 5.3(b) Moreso, cheating which is defined under Section 415 IPC is further divided into two main ingredients. First is the act of deceiving any person or fraudulently/dishonestly inducing any person so deceived and the second being that such deceived person is impelled to deliver any property to any person or retain any property or to omit to do anything which he would not do or omit if he was not so deceived, which act or omission causes or is likely to cause damage or harm to that person in body, THE HIGH COURT OF MADHYA PRADESH 6 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh mind, reputation or property.
5.3(c) Parameters and extent of concept of cheating u/s 415 and 420 of IPC have been elaborated admirably by the Apex Court in Devendra and others Vs. State of Uttar Pradesh and another [(2009) 7 SCC 495], for ready reference and convenience, relevant portion of which is reproduced below:-
"14. It was, however, submitted that by reason of execution of a deed of sale claiming title over the property to which the appellants were not entitled to, the complainant - respondent had been cheated. It is difficult to accept the said contention. The appellants had not made any representation to the respondent No.
2. No contract and/ or transaction had been entered into by and between the complainant and the appellants.
15. "Cheating" has been defined in Section 415 of the Penal Code to mean: "415. Cheating-- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any 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'."
THE HIGH COURT OF MADHYA PRADESH 7 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh
16. In V.Y. Jose v. State of Gujarat and Anr. [(2009) 3 SCC 78], this Court opined:
"14. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
i) deception of a person either by making a false or misleading representation or by other action or omission;
(ii) fraudulently or dishonestly inducing any person to deliver any property; or to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out."
It is, therefore, evident that a misrepresentation from the very beginning is a sine qua non for constitution of an offence of cheating, although in some cases, an intention to cheat may develop at a later stage of formation of the contract."
THE HIGH COURT OF MADHYA PRADESH 8 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh 5.3(d) When the factual matrix attending the present case is tested on the anvil of the law laid down by the Apex Court and discussion enumerated above, it is seen that the petitioner was found to be impersonating as an Assistant Commandant of Home Guards by wearing uniform and sitting in a vehicle with a blue coloured beacon on top and having certain forged documents to give an impression to the public at large that he was a person wielding public authority. The act of impersonation on the part of petitioner is not disputed but the fact remains that this impersonation did not deceive or induce any person to be deprived of his property or valuables or to omit to be deprived of anything which he cannot do so if not deceived. There is no allegation in the FIR or in any other evidence/material collected by the prosecution that the petitioner had indulged in impersonation to cheat anyone. The petitioner seems to be a victim of jealousy nursed against his friends who were members of the disciplined forces. There does not appear to be criminal intent behind impersonation and neither any such loss is effected to any property from the said act of the petitioner. As such, the offence of cheating as defined u/s 415 IPC and punishable u/s 420 IPC is not made out. 5.4 The next major offence alleged is of forgery THE HIGH COURT OF MADHYA PRADESH 9 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh which is defined u/s 463 of IPC and punishable u/s 465 of IPC.
5.4(a) For ready reference and convenience, the sections relating to forgery i.e. Section 463, 464 and 465 of IPC are reproduced below:
Sec. 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.
Sec. 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 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 THE HIGH COURT OF MADHYA PRADESH 10 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh 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.] Sec. 465. Punishment for forgery.-- Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
5.4(b) The concept of forgery constitutes the following ingredients:
(i) Making of false document;
(ii) Such making is with intention to:
(a) cause damage or injury, to the public or to THE HIGH COURT OF MADHYA PRADESH 11 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh any person;
(b) support any claim or title;
(c) cause any person to part with property;
(d) cause any person to enter into any express
or implied contract, or
(e) commit fraud or that fraud may be
committed.
5.4(c) In the instant case, one of the allegations against the petitioner is of making false documents [identity card showing the seal of District Commandant, Home Guards, Indore]. At this juncture, it would be appropriate to fall back upon Section 464 of IPC which defines making false documents, as already reproduced supra.
5.4(d) Plain reading of Section 464 IPC reveals that whoever dishonestly or fraudulently makes, signs, seals or executes a document or part of a document inter alia is said to make a false document. It prima facie appears that by manufacturing identity card containing false seal of the District Commandant, Home Guard, Indore, the petitioner made false documents which satisfies one of the two basic ingredients of forgery.
THE HIGH COURT OF MADHYA PRADESH 12 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh 5.4(e) The other ingredients of forgery relate to the cause and effect of making false documents. The cause and effect of making of false documents is evident from factor of intention of making false documents and the effect is revealed by the damage or injury caused by such an act of making false documents.
5.4(f) In the instant case, so far as the intention part is concerned, as to whether the petitioner had any intention to cause damage or injury to public or any person is not deciphered from the prosecution story. The element of intention is a state of mind which often is not revealed from the ocular or circumstantial evidence made available by the prosecution has to be deciphered and inferred by the surrounding circumstances. It is also well established that the element of intention being a state of mind if not visible from the prosecution story sometimes gets revealed when the witnesses depose before the court. In the instant case, it is not known as to whether the petitioner had any intention of causing any damage or injury to the public or to any person. However, the prosecution story which is presently before this Court in shape of charge-sheet does not ostensibly reflect any such mal-intention.
THE HIGH COURT OF MADHYA PRADESH 13 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh 5.4(g) The crucial aspect which distinguishes the present case from any other case relating to offence of forgery is that the cause and effect of the criminal intent behind the act of forgery is not palpable from the prosecution story.
5.4(h) The charge-sheet does not reveal any allegation either in shape of any confessional statement or in shape of any other direct or indirect evidence that the petitioner had any criminal intent of causing damage or injury to the public or to any person by the act of impersonation or of creating false document. Moreso, there is further absence of allegation of the act of making false documents leading to any damage or injury to the public or to any person of any kind. The concept of forgery has been explained by the Apex Court in the decision Satish Mehra Vs. State (NCT of Delhi) and another [(2012) 13 SCC 614], which for ready reference and convenience is reproduced as under:
"24. Section 464 of the Penal Code which defines the offence of "forgery"
encompasses a dishonest or fraudulent act of a person in making a document with the intention of causing it to be believed that such document was made, signed, sealed etc. by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed etc. If such an act of a person is covered by the definition of "forgery" contained in THE HIGH COURT OF MADHYA PRADESH 14 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh Section 464 of the Penal Code we do not see as to why the action of the accused S.K. Khosla in making the endorsement in the Investment Renewal Form dated 22.03.1993 of Vyasa Bank, in the light of the surrounding facts and circumstances already noted, cannot, prima facie, amount to making of a document with an intention of causing it to be believed that the same was made by or by the authority of the joint account holder Satish Mehra. The said document having contained an endorsement that the FD be altered/renewed in the single name of accused Anita Mehra and the Bank having so acted, prima facie, the commission of offences under Sections 467, 468 and 471 read with Section 120-B IPC, in our considered view, is disclosed against the accused S.K. Khosla. The order of the High Court quashing the charges framed against S.K. Khosla under Sections 467, 468 and 471 IPC read with Section 120-B IPC insofar as the Investment Renewal Form dated 22.03.1993 and FD No.0756223 with Vyasa Bank, therefore, is clearly unsustainable. We therefore interfere with the aforesaid part of the order of the High Court insofar as the accused S.K. Khosla is concerned."
6. From the above discussion, this Court is compelled to hold that the basic ingredients of the offence of cheating as defined in Section 415 and also of forgery as defined under Section 463 of IPC are not made out in the present case.
THE HIGH COURT OF MADHYA PRADESH 15 CRR.790.2017 Himanchal Sharma Vs. The State of Madhya Pradesh 6.1 In view of the above discussion, this Court is inclined to exercise its revisional powers in favour of the petitioner and does so by quashing the charges framed against the petitioner vide order dated 11.07.2017 passed by the III Additional Sessions Judge, Gwalior (M.P.) in ST No.117/2017 to the extent of Sections 465, 467, 468 & 420 IPC. 6.2 Consequently, the petition stands allowed to the extent indicated above.
6.3 This Court hastens to add that the trial of the petitioner in regard to the charges framed under Sections 170 and 171 IPC shall continue to proceed.
7. No cost.
(Sheel Nagu) Judge pd Digitally signed by PAWAN DHARKAR Date: 2018.06.19 14:31:32 -07'00'