Delhi District Court
Present Matter Is Listed For Point Of ... vs Rao V. L.H.V. Prasad on 20 February, 2008
1
CC NO: 186/03
:Nand Nagri
20.02.08
ORDER ON THE POINT OF CHARGE
Present:- Counsel for the complainant with complainant
Counsel for the accused with accused.
1.Present matter is listed for point of charge. Factual background of the mater is that complainant Nathi Lal had filed present complaint in 1995 against accused Kanchi Lal, Babu Ram, Ant Ram and Chunni Lal. It is stated in complaint that complainant had earlier filed a complaint before SDM, Shahdara u/s 145 Cr.P.C. against accused No. 1. In those proceeding Accused no. 1 stated to have filed reply wherein he claimed himself to be owner of Plot No. F-1/343, Sunder Nagri on the basis of documents like Agreement to Sell, Receipt dated 07.0479 for Rs. 3500/-. It is alleged in present complaint that those documents were forged having prepared, in connivance with accused no. 2 to 4, in order to cheat & deprive complainant from his property. All those forged documents were produced in court of S. D. M. It is further alleged that accused no. 1 also produced death certificate of his wife namely Devki which was also forged. Since Accused had played fraud not only with complainant but also with court of S. D. M. & thus court of SDM directed accused to file affidavit.
2. It is further stated in present complaint that accused in order to escape 2 from criminal proceedings had handed over the possession of said property to complainant in 1992. It is alleged that Accused no. 1 conspired with accused no. 2 to 4 in this forgery & cheating. It is further averred that complainant had also filed civil suit for injunction claiming himself to be owner of property & prayed for restraining the accused from selling the property. In that suit accused was restrained by court order. In those proceeding also accused had filed reply with affidavit claiming himself to be owner & thus cheated also there. It is also alleged that accused no. 1 also took loan on the basis of forged documents in 1977. Therefore, present complaint was filed in year 1995.
3. After institution of present complaint, Ld Predecessor of this court, called upon Police report, which is on record & vide order dated 19.12.95 called the complainant to lead pre-summoning order.
4. In pre summoning evidence CW1 Nathi Lal appeared & thereafter vide order dated 29.11.96, accused were summoned for offence u/s 463/468/471 IPC. Revision against summoning order was filed, however same was dismissed as withdrawn.
5. Accused appeared after summoning & were admitted to bail & matter was kept for recording pre-charge evidence. In pre-charge evidence Paras Ram has appeared as CW1 who has stated that he has seen signature of witnesses Babu Ram & Ant Ram on copy of Agreement EXPW1/A filed in court of SDM as well as on Receipt EXPW1/B. CW1 identified those signatures are of Babu Lal & Ant Ram. CW2 is Ghanshyam, who has also stated on similar lines as CW1. CW3 is complainant whose evidence was recorded in pre-summoning & was recalled for cross examination.
6. Perusal of the record shows that earlier in the proceedings one application under provision 300 Cr. P.C. was moved in which said application was dismissed. Another application under the Provision of 3 Section 468 Cr. P.C. was also filed stating that the present complaint is barred by limitations u/s 468 Cr. P.C. that application was also dismissed. It also appears from the record that one petition u/s 195 Cr. P.C. was also filed on behalf of the accused stating that present complaint at the instance of complainant is not maintainable because of power u/s 195 Cr. P.C. Said application was also dismissed vide order dated 13.09.02 stating there in that only photocopy of alleged forged documents has been placed on record and complaint under the present form is not maintainable at the instance of the complainant.
7. I have heard Ld counsel for the complainant as well as counsel for the accused. Ld counsel for the complainant has submitted that forgery has been established from the record of the SDM which is also lying along with the judicial record as well as from the evidence lead in pre charge evidence. Le counsel has relied upon judgment reported in
(i) 1990 Cr. L. J. N. O. C. 125 (modh. Pra.)
(ii) A.I.R. 1983 Cl. 337 (339)
(iii) 1977 Cr. L. J. 410 (411)
(iv) A. I. R. 1969 Raj. 215 (224)
(v) A. I. R. 1967 Cal. 205 (206)
(vi) A.I. R. 1965 Raj 1210 (142)
(vii) A. I. R. 1961 Cl. 359
8. On the other hand Ld counsel for the accused submits that first of all the present petition has been filed belatedly moreover accused cannot be subjected to double jeopardised. It is also submitted that alleged forgery and cheating has not been proved.
9. Having heard the submission and having gone through the record carefully. It is pertinent to mention that present petition has been filed for alleged commission of cheating, forgery and using of forged documents. In such circumstance the first and foremost question to be 4 seen on the side of the charge is whether keeping in view the pre charge evidence and the facts and circumstances of the case prima facie ingredients of cheating or forgery has been established or not. It is alleged that in the proceedings before SDM court, accused has placed on record certain documents in which he has claimed himself to be owner of the property bearing plot on F-1/343, Sunder Nagri. It is alleged that those documents were forged to make accused Kanchi Lal as owner whereas he was not actually the owner. It is also evident from the proceedings record of SDM that the proceedings were dropped as in the process accused handed over the possession of the property in question to the complainant and question now only is to be seen whether those documents are forged or not by the accused. Admittedly the documents on the record of SDM are photocopy, original documents have not seen the light of the day as it is not produced by the accused. Now on the basis of photocopy of the documents whether the forgery has been proved or not Section 463 of the Indian Penal Code defines the offence of `forgery' as:
"Whoever make any false document or part of a document 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."
In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with intent to cause damage or injury to the public or to any class of public or to any community. The expression 'intent to defraud' implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and 5 injury to the person deceived, that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term 'forgery' as used in the statute is used in its ordinary and popular acceptation. The definition of the offence of forgery declares the offence to be completed when a false document or false part of a document is made with specified intention. The questions are
(i) is the document false
(ii) is it made by the accused and
(iii) is it made with an intent to defraud.
If at all the questions are answered in the affirmative, the accused is guilty. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however, small. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed. A false description makes a document of forgery when it is found that the accused by giving such false description intended to make out or wanted it to believe that it was not he that was executing the document but another person.
It may also be stated that Section 463 defines a forgery simpliciter, whereas Section 465 to 471 define an aggravated form of forgery. Section 467 relates to forgery of such documents as valuable securities and of other documents mentioned. Section 468 deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent. Section 471 deals with using as 6 genuine a forged document. For the purpose of convicting an accused under Section 467 read with Section 471 IPC, it has to be shown that an accused either knew or has reason to believe that the document was forged. In "Karnati Bhaskar v. State of A.P." 2000 CRI. L. J. 3983 it was held that in a given case if a document is forged and a party who is likely to be affected by the creation of such a document makes complaint, before such a document is actually used by the maker for deriving any benefit out of such a document by producing the same before a Court or some other public authority, the prosecution would certainly be legal. If such a document is to be produced before a Court subsequent to the initiation of the prosecution, there is nothing in the law, which prohibits the continuation of the prosecution. Therefore, it would be illogical to think that the Parliament intended to prohibit prosecution at the instance of a private party for an offence of forgery merely because such a document was produced or given in evidence before a Court by the time the person effected by such document came to know of the offence. The maintainability of prosecution for an offence cannot merely depend on an accident as to the point of time at which the prosecution is sought to be launched unless such a stipulation is demonstrably made to achieve some larger public purpose. Because in theory, all law is always made for achieving some public good and for the benefit of the body politic to which it is made applicable.
In "Bharat Hiralal Sheth v. Jaysin Amarsinh Sampat"1997 CRI. L. J. 2509 it was held that where accused was a share-broker through whom the complainant used to deal in shares. The accused gave a bill dt. 30-8- 1974 to the complainant which showed that the complainant suffered a loss of Rs. 30,700/-. On the other hand a regular bill showing transactions from 16/8 to 30/8 was already served upon the complainant in 1974 itself and in this bill the so-called transaction dt. 23-8-74 was not reflected and 7 as such preparing this bill which was given to complainant after 3/4 years after the transaction was prima facie a forgery in view of Illustration (h), Explanation 1 of Illustration (e) of S. 464.
It was observed A man can be said to have committed a forgery of document even if he himself is the author and signatory of the document. Illustration (h) does not require that he should sign a document making it to be believed that somebody else has signed the same or that he was authorized to sign the same on somebody else's behalf. From the two illustrations (h) and (e) and Explanation 1 it is clear that legislature intended to cover cases under the offence of forgery whenever the person was the creator of a document even though the document was made by himself in his own name and signed in his own name. These two illustrations with Explanation 1, therefore, make the scope of the definition "Making a false document" very wide and it cannot be said that part Ist of Section 464 is the only provision defining words "Making the false document".
Thus it is very much clear from the above discussion that for the purpose of establishing forgery it is required to prove the documents is false and that the false documents has been used by the accused with the intention to cause damage or injury then only the forgery has been proved. In the present case, it has not been proved that documents in question have been falsely made that too by the accused. Thus commission of making the false documents by the accused has not been proved either by any direct or indirect evidence or by any expert opinion in the form of showing that the signatures on the documents have been forged by the accused. In such circumstance primafacie offence u/s 468 has not been proved once the forgery not proved then the offence u/s 470 and 471 also goes which provides for using of 8 forged documents.
10.Now taking up the question whether there is proof regarding the commission of cheating as alleged:
Section 415 of Code has defined the offence of `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, reputation or property is said to "Cheat".
Explanation: A dishonest concealment of facts is a deception within the meaning of this Section."
The first part of the definition relates to property. The second part need not necessarily relate to property. The second part speaks of intentional deception which is not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. It has been held by the Supreme Court in G. V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 : 2000 Cri LJ 3487 that intention and deception pre-supposes the existence of a dominant motive of the person making the inducement. Such inducement should have laid the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. As mentioned above Sec. 415 of IPC has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and the second part need not necessarily relate to property. In the second part, 9 the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. The Supreme Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 : 1956 Cri LJ 1116 held that a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea"
on the part of that person must be established. In the present case also the above said ingredients of cheating has not been proved, thus even primafacie offence of cheating also not proved.
11.It is also pertinent to mention that the alleged documents pertains to year 1979 produced in the court of SDM in 1992 and thereafter the present complaint was filed in 1995. In such circumstance, I do not find complainant has been able to establish even primafacie either of the offence as alleged. Consequently the accused is discharged. File be consigned to Record Room.
(Shailender Malik) Metropolitan Magistrate Karkardooma Courts, Delhi