Madhya Pradesh High Court
Vishal vs The State Of Madhya Pradesh on 28 March, 2017
8
Cr.R. No.1485/2016
28/03/2017
Shri Rajeev Bhatjiwale, learned counsel for the
petitioner.
Shri Rahul Vijayawargiya, learned Public
Prosecutor for the respondent/State.
Heard finally with the consent of learned counsel
for the parties.
ORDER
The petitioner through this petition preferred under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short 'the Code') calls in question the legality, correctness and propriety of order dated 05/11/2016, passed by the Court of learned Additional Sessions Judge, Indore in S.T. No.686/2016 to the extent it relates to framing of charge against the petitioner under Sections 467, 468 & 471 of IPC.
02. Petitioner Vishal Thakur along with co-accused Navneet Kumar Singh has been charge-sheeted by Police Station - Crime Branch, Indore for offences under Section 420, 467, 468, 471 and 120-B of IPC. Allegedly, the petitioner sent an SMS to a number of students including complainant Dinesh Kumar Atre offerring direct admission to MBBS/BDS professional courses without any entrance examination from the seats reserved under the Central Pool Quota. As per prosecution, pursuant to this SMS father of complainant Dinesh Kumar Atre contacted petitioner 8 Vishal Thakur who was running a coaching center at Indore under the name and style of Shri Guru Educational Services, New Palasia, Indore. Allegedly, the petitioner informed that admission to MBBS/BDS can be made available on payment of Rs.35 lacs out of which Rs.3.5 lacs are to be paid in advance. The further allegation is that the petitioner introduced the complainant's father to one Navneet Kumar Singh who claimed to be an IAS officer of 2003 batch and told that he can manage admission from the Central Pool Quota as he is working in the Home Department of Central Govt. The further allegation is that Dinesh Kumar Atre, pursuant to the dishonest and fraudulent inducement made by the petitioner and co- accused Navneet Kumar Singh, paid to Navneet Kumar Singh a sum of Rs.3,50,000/- by account payee cheque. Allegedly, cheque bearing No.19888 for Rs.15 lacs issued from account maintained by Navneet Kumar Singh in ICICI Bank, Malwa Parisar Branch, Indore was given by him to Dinesh Kumar Atre by way of security.
03. The learned trial Court, vide the impugned order dated 05/11/2015 has framed charges under Section 420, 120-B, 167, 468 and 471 of IPC against the petitioner and co-accused Navneet Kumar Singh.
04. The order to the extent it pertains to framing of charge under Sections 467, 468 and 471 of IPC qua the petitioner is challenged on the ground that though it is 8 alleged that a forged cheque for Rs.15 lacs was issued by Navneet Kumar Singh from the account maintained by him in ICICI Bank, Malwa Parisar, Indore, however, the said cheque cannot be put in the category of false document within the meaning of Section 464 of IPC because none of the clauses of Section 464 of IPC are attracted in the matter. The contention is that the charges under Section 467, 468 & 471 of IPC are unsustainable because to constitute offence under the Sections it must be shown that a false document was made within the meaning of Section 464 of IPC.
05. It has not been disputed by the learned Public Prosecutor that as per charge-sheet cheque No.198881 for a sum of Rs.15 lacs was issued by Navneet Kumar Singh under his own signatures on a validly issued cheque slip from his account No.824501527797 maintained by him in ICICI Bank, Malwa Parisar, Branch Indore.
06. 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 8 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;8
(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.
8Explanation 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, 8 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."
07. The allegation with regard to issuance of forged cheque is required to be examined in the aforesaid legal perspective. In the instant case, the cheque in question admittedly was issued by Navneet Kumar Singh from an account maintained by him in ICICI Bank, Malwa Parisar Branch, Indore. It bore his signatures and was issued on the leaflet provided by the Bank. Even if we accept all the allegations made in this regard at their face value still the 8 case does not fall under any of the category (supra) so as to bring the act of issuance of cheque within the mischief of Section 464 of IPC. Hence, even after accepting all the allegations at the face value, the charges for offence under Section 467, 468 and 471 of IPC charges are not made out against the petitioner even prima-facie.
08. The learned trial Court while framing the charge has not adverted to the aforesaid factual and legal aspects, therefore, the impugned order to the extent it pertains to charge under Sections 467, 468 and 471 of IPC qua the petitioner cannot be sustained.
09. Resultantly, this petition deserves to be and is accordingly, allowed and the charges under Sections 467, 468 and 471 of IPC framed by the learned trial Court in S.T. No.676/2016 qua the petitioner are hereby quashed and the petitioner is discharged of the same.
CC as per rules.
(Ved Prakash Sharma) Judge