State Of H.P vs Vidya Devi And Ors on 13 December, 2024

[Cites 22, Cited by 0]

Himachal Pradesh High Court

State Of H.P vs Vidya Devi And Ors on 13 December, 2024

Bench: Vivek Singh Thakur

Neutral Citation No. ( 2024:HHC:14358-DB )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 224 of 2012
Reserved on: 02.12.2024
Date of Decision: 13.12.2024

State of H.P. ...Appellant.

Versus

Vidya Devi and Ors. ...Respondents

Coram

Hon'ble Mr Justice Vivek Singh Thakur, Judge.

Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 Yes
For the Appellant/State : Mr. J.S. Guleria, Deputy
Advocate General.
For Respondents No.1 and 2 : Mr. Sanjeev Kuthiala, Senior
Advocate, with M/s. Amita
Chandel and Abhishek,
Advocates.
For respondents No.3 and 4 : Mr. Abhijeet Singh, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 26.12.2011 passed by learned Special Judge, Kullu (learned

Trial Court), vide which the respondents (accused before the

learned Trial Court) were acquitted of the charges framed against

them. (Parties shall be referred to in the same manner as they were

arrayed before the learned Trial Court for convenience.)
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:14358-DB )

2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan against the accused

for the commission of offences punishable under Sections 420,

467, 468 and 120B of the Indian Penal Code (IPC) and Section

13(2) of the Prevention of Corruption Act. It was asserted that

Sunder Lal Sharma married Vidya Devi in 1977. Vidya Devi got

half share to the extent of 0-7-0 bigha in Khasra No. 2372,

measuring 0-14-0 bigha situated in Mauja Lagsari District Kullu.

She executed a gift deed no. 785 in favour of the Ayurvedic

Department on 24.10.1980 for the construction of Ayurvedic

Bhawan. She delivered the possession to the Ayurvedic

Department. She filed an application before Deputy

Commissioner, Kullu seeking Nautor because she was left with no

land after gifting her share to the Ayurvedic Department. She also

encroached upon Khasra No. 2880 in Unprotected Forest (UPF) to

the extent of 2-17-0 bigha. She filed an application in May 1990

to get the timber under Timber Distribution (TD) Rights. This

application was verified by Patwari Gulbadan on 04.05.1990. Totu

Ram recommended the grant of TD rights. DFO sanctioned the

TD in favour of Vidya Devi. Vidya Devi filed a false application for

getting the TD because she did not have any land in her name in
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Mohal Lagsari, and only a landowner was entitled to file the

application for getting the TD. Gulbadan and Totu Ram also

helped Vidya Devi by making false report. In this manner, they

caused a loss to the State Government. The police registered the

FIR (Ext. PW21/B) in the police station. Rajinder Kumar (PW30)

conducted the initial investigation. He inspected the spot and

prepared the site plan (Ext. PW30/A). He seized the case file,

inquiry report, and other documents vide memo (Ext. PW2/A). He

collected the TD Register and applications for a grant of TD (Ext.

PW1/B and Ext. PW1/C) from the office of DFO vide memo (Ext.

PW1/D). He collected the gift deed (Ext. PW3/A) from the Tehsil

office vide memo (Ext. PW3/B). He seized the documents

(Ext. PW4/A) from the office of Range Officer Kullu vide memo

(Ext. PW4/B). He seized the jamabandies (Exts. PW6/A to

Ext. PW6/E) vide memo (Ext. PW6/F). He seized the permit book

(Ext. PW5/C) vide memo (Ext. PW7/A). He obtained the certified

file of the mutation (Ext. PW30/B), certified copy of the sale deed

(Ext. PW30/C), the documents of encroachment proceedings

against Vidya Devi (Ext. PW30/D to Ext. PW30/G), photocopy of

the application of the Vidya Devi (Ext. PW30/H), and photocopy

of the application of Totu Ram (Ext. PW30/J and Ext. PW30/K). He
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obtained the specimen signatures and handwriting of Gulbadan

(Ext. PW30/L to Ext. PW30/P). Further investigation was

conducted by Nand Kishore (PW20). He produced Gulbadan, Totu

Ram and Sunder Lal before Naib Tehsildar-cum-Executive

Magistrate to obtain their specimen signatures. Specimen

signatures of Sunder Lal (Ext. PW10/A1 to Ext. PW10/A10), Totu

Ram (Ext. PW10/A11 to Ext. PW10/A20) and Gulbadan

(Ext. PW10/A21 to Ext. PW10/A30) were taken. He seized the

admitted handwriting of Totu Ram (Ext. PW20/B) vide memo

(Ext. PW20/A). Balwant Singh (PW29) conducted the further

investigation. He produced Vidya Devi before Executive

Magistrate Kullu (PW28) to obtain her signatures. Her specimen

signatures (Ext. PW28/A1 to Ext. PW28/A9) were taken. He seized

the encroachment file (Ext. PW9/A1 to Ext. PW9/A42) and letters

(Ext. PW9/B, Ext. PW9/D and Ext. PW9/E) vide memo

(Ext. PW9/C). He obtained the timber passing register

(Ext. PW5/A) vide memo (Ext. PW5/B). He seized the jamabandi

of Khata No. 294 (Ext. PW6/D). The specimen and disputed

signatures were sent to FSL Junga for comparison. The result of

the analysis (Ext. PW31/A) was issued in which it was mentioned

that the writing on the register (Q1), the admitted handwriting
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Neutral Citation No. ( 2024:HHC:14358-DB )

(A1 to A3) and specimen handwriting (S1 to S9) were written by

the same person. Similarly, the writing on the register (Q2 to Q4)

admitted handwriting (A4 to A9) and specimen handwriting (S10

to S29) were written by the same person. The writing on the

(A13 to A17) were written by the same person. Disputed

signatures (Q6), specimen writing (S30 and 39) and admitted

writing (A10 to A12) were written by the same person. The

statements of the witnesses were recorded as per their version,

and after the completion of the investigation, the challan was

prepared and presented before the learned Trial Court.

3. Learned Trial Court charged accused-Vidya Devi with

the commission of offences punishable under Sections 420, 467,

and 468 read with Section 120B of IPC and accused Totu Ram,

Gulbadan and Sunder Lal with the commission of offences

punishable under Sections 420, 467, 468, 120B of IPC and Section

13(2) read with Section 13(1)(d) of Prevention of Corruption Act.

The accused pleaded not guilty and claimed to be tried.

4. The prosecution examined 31 witnesses to prove its

case. Lachhman Dass (PW1) was posted as Superintendent in the

office of DFO and witnessed the recovery of the record from the
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Neutral Citation No. ( 2024:HHC:14358-DB )

office. HC-Sanjiv Kumar (PW2) is the witness to the recovery of

the original complaint, forwarding letter and inquiry report.

Uttam Ram (PW3) is the witness to the recovery of the gift deed.

Sukhdev (PW4) was posted as a Block Officer and produced a TD

permit book showing that TD was sanctioned in the name of

Vidya Devi. He also witnessed the seizure of the register produced

by Fateh Chand (PW5). Kehar Singh (PW6) was posted as Patwari,

who produced the copies of Jamabandi. Ram Dayal (PW7)

produced the permit book. Sobha Ram (PW8) produced a copy of

the mutation. Bharat Bhushan (PW9) handed over the

encroachment papers to the police. Shiv Ram (PW10) was posted

as Naib Tehsildar, in whose presence Sunder Lal, Totu Ram, and

Gulbadan put their specimen signatures and handwriting. Shishu

Pal (PW11) produced the record of the appointment and

superannuation of Totu Ram and his admitted handwriting.

Devender Singh (PW12) witnessed the seizure of the Nautor case

file. Magan Lal (PW13) produced the record regarding the nautor

file. Balbir Bahadur Singh (PW14) proved the prosecution

sanction. Bhagwan Dass (PW15) supplied the record of the

appointment and posting of Gulbadan. Bal Mukand (PW16)

supplied the copies of Jamabandies. Narvinder Singh (PW17)
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produced the record of the gift deed. Dola Ram (PW18) did not

support the prosecution case. Prem Chand (PW19) sent the case

file for obtaining prosecution sanction. Inspector Nand Kishore

(PW20) conducted the partial investigation. Amarnath (PW21)

conducted the preliminary inquiry. Pyare Chand (PW22) was

posted as Block Officer, who proved that an application for a

grant of TD was filed by Vidya Devi, which was sanctioned by the

Department. Jaswant Singh (PW23) issued a copy of Jamabandi.

HC Sanjiv Kumar (PW24) carried the specimen signatures,

disputed signatures and admitted handwriting to FSL Junga. HC-

Sat Pal (PW25) is the witness to the recovery of the letter and

application. Manorama Devi (PW26) produced the appointment

and posting order of Sunder Lal and his admitted handwriting.

Kishore Chand (PW27) proved the prosecution sanction against

Patwari Gulbadan. Balbir Singh (PW28) was posted as Executive

Magistrate, in whose presence specimen signatures of Vidya Devi

were taken. Balwant Singh (PW29) and Rajinder Kumar (PW30)

conducted the investigation. Dr. Meenakshi Mahajan (PW31)

compared the disputed, admitted and specimen signatures.

5. The accused, in their statements recorded under

Section 313 of Cr.P.C., denied the prosecution case in its entirety.
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Neutral Citation No. ( 2024:HHC:14358-DB )

They claimed that they were innocent and were falsely

implicated. Vidya Devi stated that she was illiterate and had no

knowledge about the reports made by the forest officials. Her TD

permit was collected by Sunder Lal. She had not encroached upon

any Government land. Totu Ram stated that the TD permit was

issued to Vidya Devi as per the rules. Gulbadan stated that Vidya

Devi was the owner of Khata No. 212, and mistakenly, Khata

No.294 was mentioned. The jamabandies were tendered in

defence, and the statement of Lajja Devi (DW1) was recorded to

prove the notifications.

6. Learned Trial Court held that Vidya Devi had

purchased the land from Dola Ram vide sale deed

(Ext. PW9/A-21) bearing Khasra No.2372 measuring 0-14-0

bigha to the extent of half share. She had gifted her share to the

Ayurvedic Department for the construction of the dispensary. She

had not transferred her rights over the land. She could have

retained such rights in her favour as per the Punjab Forest

Manual Volume I. Naina Devi, mother of Vidya Devi, was the

owner in possession of Khasra No.196. She died on 17.01.1986.

Vidya Devi, was the legal heir of her mother, and she could not be

called to be landless. The prosecution version that Dola Ram had
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signed the application on behalf of Vidya Devi was not

established. The prosecution sanction against Sunder Lal was not

proper. The public officials Gulbadan and Totu Ram had made the

reports in the discharge of their official duties. The application

was duly verified by the Panchayat. Therefore, the accused were

acquitted.

7. Being aggrieved from the judgment passed by the

learned Trial Court, the State has filed the present appeal

asserting that the learned Trial Court failed to properly

appreciate the evidence led before it in its proper perspective. The

statements of the prosecution witnesses were discarded without

any reasonable ground. Jaswant Singh Patwari admitted that

Vidya Devi was not recorded as the owner of any land in Khata

No.294. His statement was supported by Kehar Singh (PW6), who

proved that Khata No.294 was owned by one Jagannath. Vidya

Devi had wrongly shown herself to be the owner of Khata No.294,

and she was not the owner of this Khata. The other accused

helped her in getting the TD; therefore, it was prayed that the

present appeal be allowed and the judgment passed by the

learned Trial Court be set aside.
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8. We have heard Mr J.S. Guleria, learned counsel for the

appellant/State, Mr Sanjeev Kuthiala, learned Senior Counsel

assisted by Ms Amita Chandel and Mr. Abhishek, learned counsel

for respondents No.1 and 2 and Mr. Abhijeet Singh, learned

counsel for respondents No.3 and 4.

9. Mr. J.S. Guleria, learned Deputy Advocate General for

the appellant/State, submitted that the learned Trial Court erred

in acquitting the accused. It was duly proved by the statements of

official witnesses that Vidya Devi executed a gift deed in favour of

the Ayurvedic Department, and she was left with no land. She

made a false application stating that she was the owner of the

land and thereby obtained TD in her favour. The other accused

helped her by making false reports. The learned Trial Court erred

in discarding the testimonies of the official witnesses; therefore,

he prayed that the present appeal be allowed and the judgment

passed by the learned Trial Court be set aside.

10. Mr. Sanjeev Kuthiala, learned Senior Counsel for the

respondents/accused No.1 and 2, submitted that the learned Trial

Court had rightly held that Vidya Devi had not transferred her

forest rights in favour of the Ayurvedic department and she could

file an application for getting the TD. The evidence on record also
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shows that the mother of Vidya Devi was the owner of the land,

and Vidya Devi succeeded to her estate; hence, she cannot be

called a landless person; therefore, he prayed that the present

appeal be dismissed.

11. Mr Abhijeet Singh, learned counsel for

respondents/accused No. 3 and 4, adopted the submissions of Mr

Sanjeev Kuthiala, learned Senior Counsel and submitted that

respondents Nos 3 and 4 had made the reports bona fide on the

basis of the recommendation made by the Panchayat; therefore,

he prayed that the present appeal be dismissed.

12. We have given considerable thought to the

submissions made at the bar and have gone through the records

carefully.

13. The present appeal has been filed against a judgment

of acquittal. It was laid down by the Hon'ble Supreme Court in

Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine

SC 130 that while deciding an appeal against acquittal, the High

Court should see whether the evidence was properly appreciated

on record or not; second whether the finding of the Court is

illegal or affected by the error of law or fact and thirdly; whether
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Neutral Citation No. ( 2024:HHC:14358-DB )

the view taken by the Trial Court was a possible view, which

could have been taken based on the material on record. The Court

will not lightly interfere with the judgment of acquittal. It was

observed:

"25. We may first discuss the position of law regarding the
scope of intervention in a criminal appeal. For that is the
foundation of this challenge. It is the cardinal principle of
criminal jurisprudence that there is a presumption of
innocence in favour of the accused unless proven guilty.
The presumption continues at all stages of the trial and
finally culminates into a fact when the case ends in
acquittal. The presumption of innocence gets concretised
when the case ends in acquittal. It is so because once the
trial court, on appreciation of the evidence on record, finds
that the accused was not guilty, the presumption gets
strengthened, and a higher threshold is expected to rebut
the same in appeal.

26. No doubt, an order of acquittal is open to appeal, and
there is no quarrel about that. It is also beyond doubt that
in the exercise of appellate powers, there is no inhibition
on the High Court to reappreciate or re-visit the evidence
on record. However, the power of the High Court to
reappreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first
and foremost question to be asked is whether the trial
court thoroughly appreciated the evidence on record and
gave due consideration to all material pieces of evidence.
The second point for consideration is whether the finding
of the trial court is illegal or affected by an error of law or
fact. If not, the third consideration is whether the view
taken by the trial court is a fairly possible view. A decision
of acquittal is not meant to be reversed on a mere
difference of opinion. What is required is an illegality or
perversity.
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27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
"two-views theory" has been judicially recognised by the
courts, and it comes into play when the appreciation of
evidence results in two equally plausible views. However,
the controversy is to be resolved in favour of the accused.
For, the very existence of an equally plausible view in
favour of the innocence of the accused is in itself a
reasonable doubt in the case of the prosecution. Moreover,
it reinforces the presumption of innocence. Therefore,
when two views are possible, following the one in favour
of the innocence of the accused is the safest course of
action. Furthermore, it is also settled that if the view of the
trial court, in a case of acquittal, is a plausible view, it is
not open for the High Court to convict the accused by
reappreciating the evidence. If such a course is
permissible, it would make it practically impossible to
settle the rights and liabilities in the eye of the law.

28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC
pp. 236-37, para 13)

"13. Considering the reasons given by the trial court and
on an appraisal of the evidence, in our considered view,
the view taken by the trial court was a possible one.
Thus, the High Court should not have interfered with
the judgment of acquittal. This Court in Jagan M.
Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N.,
(2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down
that as the appreciation of evidence made by the trial
court while recording the acquittal is a reasonable view,
it is not permissible to interfere in appeal. The duty of
the High Court while reversing the acquittal has been
dealt with by this Court, thus: (SCC p. 643, para 9)

'9. ... We are constrained to observe that the
High Court was dealing with an appeal against
acquittal. It was required to deal with various
grounds on which acquittal had been based and to
dispel those grounds. It has not done so. Salutary
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Neutral Citation No. ( 2024:HHC:14358-DB )

principles while dealing with appeal against
acquittal have been overlooked by the High Court.
If the appreciation of evidence by the trial court
did not suffer from any flaw, as indeed none has
been pointed out in the impugned judgment, the
order of acquittal could not have been set aside.
The view taken by the learned trial court was a
reasonable view, and even if by any stretch of the
imagination, it could be said that another view
was possible, that was not a ground sound enough
to set aside an order of acquittal.'"

29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022)
6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme
Court analysed the relevant decisions and summarised the
approach of the appellate court while deciding an appeal
from the order of acquittal. It observed thus: (SCC p. 297,
para 7)

"7. It is well settled that:

7.1. While dealing with an appeal against acquittal,
the reasons which had weighed with the trial court
in acquitting the accused must be dealt with in case
the appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :
(2021) 1 SCC (Cri) 395] ).

7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal
matter gets reinforced (see Atley v. State of
U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR
1955 SC 807]).

7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow
in interfering with the appeal against acquittal
(see Sambasivan v. State of
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Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC
412: 1998 SCC (Cri) 1320])."

14. This position was reiterated in Ramesh v. State of

Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it

was observed at page 175:

"20. At this stage, it would be relevant to refer to the
general principles culled out by this Court
in Chandrappa v. State of Karnataka [Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325],
regarding the power of the appellate court while dealing
with an appeal against a judgment of acquittal. The
principles read thus: (SCC p. 432, para 42)

"42. ... (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on the exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and law.

(3) Various expressions, such as "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc., are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that
in case of acquittal, there is a double presumption in
favour of the accused. Firstly, the presumption of
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innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.

(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court."

21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v.
State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a three-
judge Bench of this Court pointed out that it would be
essential for the High Court, in an appeal against acquittal,
to clearly indicate firm and weighty grounds from the
record for discarding the reasons of the trial court in order
to be able to reach a contrary conclusion of guilt of the
accused. It was further observed that, in an appeal against
acquittal, it would not be legally sufficient for the High
Court to take a contrary view about the credibility of
witnesses, and it is absolutely imperative that the High
Court convincingly finds it well-nigh impossible for the
trial court to reject their testimony. This was identified as
the quintessence of the jurisprudential aspect of criminal
justice."

15. The present appeal has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

16. Dr. Meenakshi Mahajan (PW31) compared the

disputed signatures with the admitted and specimen signatures

and issued her report (Ext. PW31/A). The specimen signatures

were taken in the presence of Shiv Ram (PW10) and Balbir Singh
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Lagwal (PW28). They admitted in their cross-examination that

no proceeding or inquiry was pending before them when they

obtained the specimen signatures. It was laid down by the

Hon'ble Supreme Court in Sukhwinder Singh vs. State of Punjab

1994 (5) SCC 152 that a Magistrate had no authority to direct the

accused to give his specimen signatures when no inquiry or trial

was pending before him. It was observed:

"[21] The specimen writings in the instant case of
appellant Sukhdev Paul were taken under the directions of
Shri S. P. Garg, Tehsildar-Executive Magistrate, Public
Witness 13. No enquiry or trial was admittedly pending in
the court of the Tehsildar-Executive Magistrate. The
enquiry and trial, in this case, were pending under TADA
before the Designated court only. The direction given by
the Tehsildar-Executive Magistrate Shri S. P. Garg to the
appellant Sukhdev Paul to give his specimen writing was
clearly unwarranted and not contemplated or envisaged by
Section 73 of the Evidence Act. The prosecution has not
disclosed as to at what stage of investigation or enquiry or
trial was Sukhdev Paul, appellant, produced before the
Executive Magistrate Public Witness 13 to take the
specimen writings of the appellant and why the specimen
writings were obtained under directions of Public Witness
13 and not of the Designated court. It is a mystery as to
how the specimen writings required to be used at the trial
against the appellant were directed to be taken by Public
Witness 13, who was not enquiring or trying the case. To a
specific question during his cross-examination, Public
Witness 13 admitted at the trial that when he had issued
the direction to the appellant, there was no document on
his file which could go to show as to under whose orders
the appellant had been sent to him for taking his specimen
handwriting. The manner in which the specimen writing
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of Sukhdev Paul was taken is totally objectionable and
against the provisions of Section 73 of the Evidence Act.
The Executive Magistrate Public Witness 13 appears to
have been too obliging and did not even care to examine
the provisions of the law before issuing the direction to
the appellant. The argument of the learned counsel for the
State that since no objection was raised by the appellant
when he was called upon to give his specimen writing by
Public Witness 13, therefore, he cannot be permitted to
make a grievance now is only an argument of despair and
the silence of the appellant, who admittedly on that day,
was not even represented by an advocate, cannot certainly
clothe Public Witness 13 with any jurisdiction to issue the
directions as envisaged by Section 73 of the Evidence Act.
The specimen writing of Sukhdev Paul could not,
therefore, be made use of during the trial, and the report
of the handwriting expert, when considered in the light of
the foregoing discussion, is rendered of no consequence at
all and cannot be used against Sukhdev Paul appellant to
connect him with the crime."

17. This position was reiterated in State of Haryana Vs.

Jagveer Singh (2003) 11 SCC 261 and Rakesh Kumar vs. State 2001

(3) S.L.C 154.

18. Similar is the judgment of the Hon'ble Supreme Court

in Sukh Ram vs. State of H.P. (2016) 14 SCC 183, wherein it was

observed: -

"14. The trial court discarded the opinion evidence of PW-
20 on the ground that the executive magistrate was not the
competent authority before whom the fingerprint and
handwriting of the witnesses could be taken as no
proceeding was pending before the executive magistrate.
In this regard, the trial court placed reliance upon
Sukhvinder Singh's case and held that the opinion evidence
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of a handwriting expert cannot be used against the
accused.

15. In Sukhvinder Singh's case, it was held that the direction
given by the Tehsildar-Executive Magistrate to the
accused to give his specimen writing was clearly
unwarranted and, therefore, the said specimen writing
could not be made use of during the trial and the report of
handwriting expert was rendered of no consequence at all
and could not be used against the accused to connect him
with the crime. It was held that the direction to an accused
to give specimen handwriting can only be issued by the
court holding enquiry under the Criminal Procedure Code
or the Court conducting the trial of such accused.

16. The High Court differentiated Sukhvider Singh's case
from the case at hand on facts as also on the law. High
Court pointed out that in the matter at hand, admittedly,
the authority-Executive Magistrate before whom the
specimen signatures were given did not have the authority
to inquire into or try the case. However, as observed by the
High Court, during the course of the investigation, PW-5
and PW-7 gave the specimen signatures willingly. In
Sukhvinder Singh's case, specimen writing of the accused
was taken as per the direction of the tehsildar, whereas in
the present case, PW-5 and PW-7 were produced before
the Executive Magistrate by the police with a request that
their signatures be taken by the Executive Magistrate.
Sukhvinder Singh's case is clearly distinguishable on facts
from the case at hand. High Court further relied on
another decision rendered in Vijay alias Gyan Chand Jain's
case wherein, in the facts and circumstances of the said
case, it was held that procurement of specimen
handwriting of the accused by Naib Tehsildar was not in
violation of Section 73 of Evidence Act.

17. The question is whether the Judicial Magistrate/
Executive Magistrate was authorised to take specimen
writing and signatures of the said accused during the
investigation of the case when no matter was pending
before either of them. Section 311-A of Cr.P.C. has been
20
Neutral Citation No. ( 2024:HHC:14358-DB )

introduced by Act No.25 of 2005 with effect from
23.06.2006 with respect to the powers of the Magistrate to
order the person to give specimen signatures or
handwriting, but no such powers were there prior to the
year 2006. Section 311-A Cr.P.C. has been inserted on the
suggestions of the Supreme Court in State of Uttar Pradesh
v. Ram Babu Misra, (1980) 2 SCC 343: AIR 1980 SC 791, that
suitable legislation be brought along the lines of Section 5
of Identification of Prisoners Act, 1980, to provide for the
investiture of Magistrates with powers to issue directions
to any person including an accused person to give
specimen signatures and handwriting but no such powers
existed prior to such amendment. The said amendment is
prospective in nature and not retrospective.

18. In State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC
343: AIR 1980 SC 791, the Supreme Court dealing with the
scope and ambit of Section 73 of the Evidence Act held as
under:

"The second paragraph of Section 73 enables the
Court to give specimen writings 'for the purpose of
enabling the Court to compare' such writings with
writings alleged to have been written by such
person. The clear implication of the words 'for the
purpose of enabling the Court to compare' is that
there is some proceeding before the Court in which
or as a consequence of which it might be necessary
for the Court to compare such writings. The
direction is to be given for the purpose of 'enabling
the Court to compare' and not for the purpose of
enabling the investigating or other agency 'to
compare'. If the case is still under investigation,
there is no present proceeding before the Court in
which or as a consequence of which it might be
necessary to compare the writings. The language of
Section 73 does not permit a Court to give a direction
to the accused to give specimen writings for the
anticipated necessity for comparison in a proceeding
which may later be instituted in the Court. Further,
Section 73 of the Evidence Act makes no distinction
21
Neutral Citation No. ( 2024:HHC:14358-DB )

between a Civil Court and a Criminal Court. Would it
be open to a person to seek the assistance of the Civil
Court for a direction to some other person to give
sample writing under section 73 of the Evidence Act
on the plea that it would help him to decide whether
to institute a civil suit in which the question would
be whether certain alleged writings are those of the
other person or not? Obviously not. If not, why
should it not make any difference if the investigating
agency seeks the assistance of the court under
Section 73 of the Evidence Act on the plea that a case
might be instituted before the Court where it would
be necessary to compare the writings?"

19. After referring to Section 5 of the Identification of
Prisoners Act, 1980, in Ram Babu Misra's case, this Court
suggested that suitable legislation be made along its lines
to provide for the investiture of Magistrates with powers
to issue directions to any person including an accused
person to give specimen signatures and handwriting.
Accordingly, a new Section 311-A was inserted in the
Criminal Procedure Code. Section 311-A Cr.P.C. reads as
under: -

"Section 311A. Power of Magistrate to order person
to give specimen signatures or handwriting.-If a
Magistrate of the first class is satisfied that, for the
purposes of any investigation or proceeding under
this Code, it is expedient to direct any person,
including an accused person, to give specimen
signatures or handwriting, he may make an order to
that effect and in that case, the person to whom the
order relates shall be produced or shall attend at the
time and place specified in such order and shall give
his specimen signatures or handwriting:

Provided that no order shall be made under this
section unless the person has at some time been
arrested in connection with such investigation or
proceeding."
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The said amendment is prospective in nature and not
retrospective."

19. It was laid down by this Court in State of H.P. Vs. Laje

Ram & Ors. 2011 Crl. L.J. 3071 that signatures taken before

23.6.2006 by a Magistrate when no inquiry or trial was pending

before him would be inadmissible. It was observed:-

"12. The perusal of the records shows that the
Investigating Officer had made the request to the
Magistrates aforesaid for obtaining the specimen writing
and signatures of the accused persons for comparison, and
the learned Magistrates proceeded to record their writings
and signatures.

13. Thus, the dispute is whether the Judicial
Magistrate/Executive Magistrate was authorised to take
specimen writing and signatures of the said accused
during the investigation of the case when no matter was
pending before either of them. Although Section 311-A of
the Code of Criminal Procedure has been introduced by Act
No. 25 of 2005 with effect from 23.6.2006 with respect to
the powers of the Magistrate to order the person to give
specimen signatures or handwriting, no such powers were
there prior to the year 2006. The said Section has been
inserted on the suggestions of the Supreme Court made on
its decision (AIR 1980 SC 791) that a suitable legislation be
brought on the analogy of Section 5 of the Identification of
Prisoners Act, 1980, to provide for the investiture of
Magistrates with powers to issue directions to any person
including an accused person to give specimen signatures
and handwriting, but no such powers existed prior to such
amendment. Undisputedly, the said amendment is
prospective in nature and not retrospective.

14. In State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC
791, the Supreme Court dealing with the scope and ambit
of Section 73 of the Evidence Act held as under:
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Neutral Citation No. ( 2024:HHC:14358-DB )

"The second paragraph of Section 73 enables the
Court to direct any person present in Court to give
specimen writings 'for the purpose of enabling the
Court to compare' such writings with writings
alleged to have been written by such person. The
clear implication of the words 'for the purpose of
enabling the Court to compare' is that there is some
proceeding before the Court in which or as a
consequence of which it might be necessary for the
Court to compare such writings. The direction is to
be given for the purpose of 'enabling the Court to
compare' and not for the purpose of enabling the
investigating or other agency 'to compare'. If the
case is still under investigation, there is no present
proceeding before the Court in which or as a
consequence of which it might be necessary to
compare the writings. The language of Section 73
does not permit a Court to give a direction to the
accused to give specimen writings for the
anticipated necessity for comparison in a
proceeding which may later be instituted in the
Court. Further, Section 73 of the Evidence Act makes
no distinction between a Civil Court and a Criminal
Court. Would it be open to a person to seek the
assistance of the Civil Court for a direction to some
other person to give sample writing under section 73
of the Evidence Act on the plea that it would help
him to decide whether to institute a civil suit in
which the question would be whether certain alleged
writings are those of the other person or not?
Obviously not. If not, why should not make any
difference if the investigating agency seeks the
assistance of the court under section 73 of the
Evidence Act on the plea that a case might be
instituted before the Court where it would be
necessary to compare the writings?"

15. The Hon'ble Supreme Court also referred to Section 5
of the Identification of Prisoners Act, 1920, which
provides: --
24
Neutral Citation No. ( 2024:HHC:14358-DB )

"If a Magistrate is satisfied that, for the purposes of
any investigation or proceeding under the Code of
Criminal Procedure, 1898, (5 of 1898), it is expedient
to direct any person to allow his measurements or
photograph to be taken, he may make an order to
that effect, and in that case the person to whom the
order relates shall be produced or shall attend at the
time and place specified in the order and shall allow
his measurements or photograph to be taken, as the
case may be, by a police officer:

Provided that no order shall be made directing any
person to be photographed except by a Magistrate of
the first class:

Provided further, that no order shall be made under
this section unless the person has at some time been
arrested in connection with such investigation or
proceeding".

It was held:

"There are two things to be noticed here. First,
signatures and writing are excluded from the range
of Section 5 of the Identification of Prisoners Act,
and second, 'finger impressions' are included in
both Section 73 of the Evidence Act and Section 5 of
the Identification of Prisoners Act. A possible view is
that it was thought that Section 73 of the Evidence
Act would not take in the stage of the investigation,
and so Section 5 of the Identification of Prisoners
Act made special provision for that stage and even
while making such provision, signature and writings
were deliberately excluded. As we said, this is a
possible view but not one on which we desire to rest
our conclusions. Our conclusion rests on the
language of Section 73 of the Evidence Act."

16. As stated above, the Hon'ble Court also made a
suggestion that suitable legislation may be made on the
analogy of Section 5 of the Identification of Prisoners Act,
1920, to provide for the investiture of Magistrates with the
25
Neutral Citation No. ( 2024:HHC:14358-DB )

powers to issue directions to any person including an
accused person to give specimen signatures and writings.

17. The above ratio was reiterated by the Hon'ble Supreme
Court in Sukhvinder Singh and Others v. the State of Punjab,
JT 1994 (4) SC 1. It was held:

"The second paragraph of Section 73 (supra)
enables the court to direct any person present before
it to give his specimen writing 'for the purpose of
enabling the court to compare' such writings with
writings alleged to have been written by such
person. The obvious implication of the words 'for
the purpose of enabling the court to compare' is that
there is some proceeding pending before the court
in which or as a consequence of which it is necessary
for the court to compare such writings. The
direction is, therefore, required to be given for the
purpose of 'enabling the court to compare' and not
for the purpose of enabling an investigating or a
prosecuting agency to obtain and produce as
evidence in the case the specimen writings for their
ultimate comparison with the disputed writings.
Where the case is still under investigation, and no
proceedings are pending in any court in which it
might be necessary to compare the two writings, the
person (accused) cannot be compelled to give his
specimen writings. The language of Section 73 does
not permit any court to give a direction to an
accused to give his specimen writing for comparison
in a proceeding which may subsequently be
instituted in some other competent court. Section 73
of the Evidence Act, in our opinion, cannot be made
use of for collecting specimen writings during the
investigation and recourse to it can be had only
when the enquiry or the trial court before which
proceedings are pending requires the writing for the
purpose of 'enabling it to compare' the same. A
court holding an enquiry under the Code of Criminal
Procedure is indeed entitled under Section 73 of the
Evidence Act to direct an accused person appearing
26
Neutral Citation No. ( 2024:HHC:14358-DB )

before it to give his specimen handwriting to enable
the court by which he may be subsequently tried to
compare it with the disputed writings. Therefore, in
our opinion, the court which can issue a direction to
the person to give his specimen writing can either be
the court holding the enquiry under the Code of
Criminal Procedure or the court trying the accused
person with a view to enable it to compare the
specimen writings with the writings alleged to have
been written by such a person. A court which is not
holding an enquiry under the Code of Criminal
Procedure or conducting the trial is not permitted,
in the plain language of Section 73 of the Evidence
Act, to issue any direction of the nature contained in
the second paragraph of Section 73 of the Evidence
Act. The words 'any person present in the court' in
Section 73 has reference only to such persons who
are parties to a cause pending before the court and,
in a given case, may even include the witnesses in
the said cause, but where there is no cause pending
before the court for its determination, the question
of obtaining for the purposes of comparison of the
handwriting of a person may not arise at all;
therefore, the provisions of Section 73 of the
Evidence Act would have no application."

18. Admittedly, in the instant case, no proceedings
against the persons before the Magistrates aforesaid
were pending when the signatures and writings of
the accused persons were obtained at the request of
the Investigating Officer. Therefore, the directions of
the learned Magistrates were unwarranted and not
contemplated by Section 73 of the Evidence Act. As
such, the report of the handwriting expert loses its
importance and is of no consequence and thus
cannot be used against the respondents."

20. In the present case, the Executive Magistrates

admitted that no inquiry or proceeding were pending before
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them. Therefore, they could not have taken the specimen

signatures, and any comparison of the disputed and specimen

signatures is meaningless.

21. There is no evidence that the admitted handwriting

was in the hands of accused Totu Ram and Gulbadan. Dr.

Minakshi relied upon the admitted handwriting (Ex. PW-30/H,

Ex. PW-30/J to Ex. PW-30/P and Ex. PW-20/B). All these

documents were exhibited by the investigating officers Inspector

Nand Kishor (PW-20) and Rajinder Kumar (PW-30. The

documents were not written in their presence and they were not

competent to prove the handwriting. It was laid down by the

Hon'ble Supreme Court in Gulzar Ali v. State of H.P., (1998) 2 SCC

192: 1998 SCC (Cri) 605 that the handwriting can be proved by the

handwriting expert or the person who is familiar with the

handwriting of the person. It was observed at page 195:

"9. It must be remembered that expert evidence regarding
handwriting is not the only mode by which the
genuineness of a document can be established. The
requirement in Section 67 of the Evidence Act is only that
the handwriting must be proved to be that of the person
concerned. In order to prove the identity of the
handwriting any mode not forbidden by law can be
resorted to. Of course, two modes are indicated by law in
Sections 45 and 47 of the Evidence Act. The former permits
expert opinion to be regarded as relevant evidence and the
latter permits opinion of any person acquainted with such
28
Neutral Citation No. ( 2024:HHC:14358-DB )

handwriting to be regarded as relevant evidence. Those
and some other provisions are subsumed under the title
"Opinion of third persons, when relevant". Opinions of
third persons, other than those enumerated in the
fasciculus of provisions, would have been irrelevant.
Among the permitted opinions those mentioned in
Sections 45 and 47 are also included. So it cannot be said
that the identity of handwriting of a document can be
established only by resorting to one of those two sections.
There can be other modes through which the identity of
the handwriting can be established. Citing an example, if a
letter is seized from the possession of 'A' and the letter
contains the name of the sender as well as the name of the
sendee and if such sendee happens to be 'A' himself, those
circumstances even without resorting to the mode
indicated in Sections 45 and 47 of the Evidence Act, would
be sufficient to draw an inference that the author or even
scribe of that letter is the sender and 'A' is the sendee of it.
10. Reference can be made to two decisions of a three-
judge Bench of this Court. First is Ram Chandra v. State of
U.P. [AIR 1957 SC 381: 1957 Cri LJ 559] wherein authorship of
some questioned letters has been found on the strength of
"various items of external and internal evidence". The
same three-judge Bench has observed in Mobarik Ali
Ahmed v. State of Bombay [AIR 1957 SC 857: 1958 Cri LJ 1346]
thus:
"The proof of the genuineness of a document is proof of
the authorship of the document and is proof of a fact
like that of any other fact. The evidence relating thereto
may be direct or circumstantial. It may consist of direct
evidence of a person who saw the document being
written or the signature being affixed. It may be proof
of the handwriting of the contents, or the signature, by
one of the modes provided in Sections 45 and 47 of the
Indian Evidence Act.
It may also be proved by internal evidence afforded by
the contents of the document. This last mode of proof
by the contents may be of considerable value where the
disputed document purports to be a link in a chain of
correspondence, some links in which are proved to the
29
Neutral Citation No. ( 2024:HHC:14358-DB )

satisfaction of the Court. In such a situation the person
who is the recipient of the document, be it either a
letter or a telegram, would be in a reasonably good
position both with reference to his prior knowledge of
the writing or the signature of the alleged sender
limited though it may be, as also his knowledge of the
subject-matter of the chain of correspondence, to
speak to its authorship."

22. Thus, the admitted handwriting could not have been

compared with the disputed handwriting of accused Totu Ram

and Gulbadan.

23. It is the specific case of the prosecution that Vidya

Devi had obtained a half share in Khasra No.2372 measuring

No.0-7-0 bigha, which she gifted to the Ayurvedic Department. It

was asserted by the prosecution that Vidya Devi was not left with

any right after executing a gift deed in favour of the Ayurvedic

Department. This is not correct. Learned Trial Court had referred

to Punjab Forest Manual Volume-I regarding the Forest Rules of

Kullu Division of 1878. Rule 4A reads as under:-

"4-A: Where a right holder alienates a fraction of a
holding, the alienee shall not become a right holder.
Where, however, a right holder alienates his entire
holding, he may, at his option, either alienate his right of
user along with the holding or alienate only the holding,
retaining the right of user for himself. In the former case,
he shall cease to be a right holder, and the alienee shall
become a right holder; and in the latter case, the alienee
shall not become a right holder."
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Neutral Citation No. ( 2024:HHC:14358-DB )

24. It is apparent from the opening part of Rule 4A that

where the right holder alienates a fraction of the holding, the

alienee does not become a right holder; therefore, the transfer of

the fraction of a holding does not make the alienee as a right

holder and the rights remain with the transferee. Thus, the

learned Trial Court had rightly held that the forest rights in the

land holding were not transferred by Vidya Devi by execution of a

gift deed of half share of Khasra No.2372 and the very premise of

the prosecution case that accused-Vidya Devi was landless and

had no right to claim TD is incorrect.

25. The prosecution had filed the challan against the

accused for the commission of offences punishable under

Sections 467 and 468 of IPC on the premise that the application

filed by Vidya Devi was false and the reports made by Gulbadan

and Totu Ram were also false and in this manner, they had

committed forgery. This is not correct. The term forgery has been

defined in Section 463 of IPC as under:

"463. Forgery.--Whoever makes any false documents or
electronic record part of a document or electronic record
with intent to cause damage or injury], to the public or 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."
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Neutral Citation No. ( 2024:HHC:14358-DB )

26. It is apparent from the definition that a person has to

make a false document before he can be said to have committed

forgery. Making a false document is defined in Section 464 of

IPC. It reads as follows:

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;

(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
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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.

27. It was laid down by the Hon'ble Supreme Court in

Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that the

prosecution is required to prove that the accused had forged a

document by creating a false document to establish the offence of

forgery. A false document is when a document is executed

claiming to be executed by someone else or authorised by

someone else, a document is tampered, or signatures are

obtained by practising deception. It was observed:-

"[10] An analysis of section 464 of the Penal Code shows
that it divides false documents into three categories:

10.1) 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.

10.2) 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.
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10.3) 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
because 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.

[11] 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 with a document, or (iii) he
obtained a document by practising deception, or from a
person not in control of his senses."

28. In the cited case, the prosecution alleged that the

accused had executed a sale deed regarding the property over

which he had no right. It was held by the Hon'ble Supreme Court

that there is a distinction between a document whose contents

are false and a document that is itself false within the definition

of Section 464 of IPC. A document containing false averment

does not attract the provision of Criminal Law, and the accused

cannot be held liable for executing the sale deed by claiming to be

the owner when he was not the owner. It was observed:-

"[12] The sale deeds executed by the first appellant clearly
and obviously do not fall under the second and third
categories of 'false documents'. It, therefore, remains to
be seen whether the claim of the complainant that the
execution of sale deeds by the first accused, who was in no
way connected with the land, amounted to committing
forgery of the documents with the intention of taking
possession of complainant's land (and that accused 2 to 5
34
Neutral Citation No. ( 2024:HHC:14358-DB )

as the purchaser, witness, scribe and stamp vendor
colluded with first accused in execution and registration of
the said sale deeds) would bring the case under the first
category. 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 the 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 the 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. 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 a
document (purporting to convey some property of which
he is not the owner) is not an 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 is attracted".

29. In Mir Nagvi Askari Vs CBI 2009 (15) SCC 643, the

accused was charged with making false entries in the record of

the bank. It was laid down by the Hon'ble Supreme Court that

making wrong entries by itself will not attract criminal liability

unless it is proved that the document was false within the
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meaning of Section 464 of IPC. It was observed:-

"[229] 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.

[230] The second criterion 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 criterion of
the said section is also not applicable to the present case.

[231] 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 for the making of a false document.

[232] The learned Special Judge, therefore, in our opinion,
erred in holding that the accused had prepared a false
document, which clearly, having regard to the provisions
of the law, could not have been done.

[233] Further, the offence of forgery deals with the making
of a false document with the specific intentions
enumerated therein. The said section has been reproduced
below.
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"463. Forgery.--Whoever makes any false
documents or electronic record part of a document
or electronic record with intent to cause damage or
injury], to the public or 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."

[234] However, since we have already held that the
commission of the said offence has not been convincingly
established, the accused could not have been convicted for
the offence of forgery. The definition of "false document"
is a part of the definition of "forgery". Both must be read
together. [Dr. Vimla v. Delhi Administration, 1963 Supp2 SCR
585]".

30. It was further held that in the absence of the

document being forged, a person cannot be convicted of the

commission of an offence punishable under Section 471 of IPC. It

was observed:-

"[235] Accordingly, the accused could not have been tried
for an offence under Section 467, which deals with forgery
of valuable securities, will, etc. or Section 471, i.e., using as
genuine a forged document or Section 477-A, i.e.,
falsification of accounts. The conviction of the accused for
the said offences is accordingly set aside".

31. It was held in Sukhbir Singh Badal v. Balwant Singh

Khera, 2023 SCC OnLine SC 522 that making a false claim and

making a false document are entirely different. It was observed:

45. In the present case, no false document has been
produced. What was produced was the Memorandum, and
37
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no other documents were produced. Even according to the
original complainant, the Memorandum and the claim
made at the time of registration of the Party that it has
adopted a Memorandum accepting secularism, the same
was contrary to the Constitution of the Party produced
before the Gurudwara Election Commission. Making a false
claim and creating and producing a false document both are
different and distinct." (Emphasis supplied)

32. This question was also considered in Sheila Sebastian

versus R Jawaharaj & Anr, etc. 2018 (7) SCC 581, and it was held

that unless the ingredients of Section 464 of IPC are satisfied, a

person cannot be convicted of the commission of an offence

punishable under Section 465 of IPC. It was observed:-

"[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 at 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 the mortgage deed under the
guise of that 'false document'. Hence, neither respondent
no.1 nor respondent no.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".

33. In the present case, there is no evidence that the

documents were altered after they were written or they were
38
Neutral Citation No. ( 2024:HHC:14358-DB )

purported to be in the handwriting of some person by whom they

were not written. A document containing a false recital is not a

false document as defined under Section 460 (4) of IPC, and even

if the whole of the prosecution case is accepted to be correct that

the document contains a false recital, it does not amount to

forgery.

34. The prosecution has also filed a charge sheet for the

commission of offences punishable under Section 420 of IPC. The

ingredients of cheating were explained by the Hon'ble Supreme

Court in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 as

under:

"10. The ingredients of an offence of cheating are: (i) there
should be fraudulent or dishonest inducement of a person
by deceiving him, (ii)(a) the person so deceived should be
induced to deliver any property to any person or to consent
that any person shall retain any property; or (b) the person
so deceived should be intentionally induced to do or omit
to do anything which he would not do or omit if he were
not so deceived; and (iii) in cases covered by (ii)(b), the act
of omission should be one which causes or is likely to
cause damage or harm to the person induced in body,
mind, reputation or property.

11. One of us (D.P. Mohapatra, J.), speaking for the Bench,
in HridayaRanjan Prasad Verma v. State of Bihar [(2000) 4
SCC 168: 2000 SCC (Cri) 786] on facts of that case, has
expressed thus: (SCC p. 177, para 15)
39
Neutral Citation No. ( 2024:HHC:14358-DB )

"15. In determining the question, it has to be kept in
mind that the distinction between mere breach of
contract and the offence of cheating is a fine one. It
depends upon the intention of the accused at the
time of inducement, which may be judged by his
subsequent conduct, but for this subsequent conduct
is not the sole test. Mere breach of contract cannot
give rise to criminal prosecution for cheating unless
fraudulent or dishonest intention is shown right at
the beginning of the transaction, that is, the time
when the offence is said to have been committed.
Therefore, it is the intention which is the gist of the
offence. To hold a person guilty of cheating, it is
necessary to show that he had fraudulent or dishonest
intention at the time of making the promise. From his
mere failure to keep up promise subsequently such a
culpable intention right at the beginning, that is, when
he made the promise, cannot be presumed." (emphasis
supplied)

12. Finding that the ingredients of the offence of cheating
and its allied offences had not been made out, this Court
interfered with the order of the High Court and quashed
the criminal proceedings.

13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC
(Cri) 733], this Court in para 7 has stated thus: (SCC pp.
696-97)

"7. As mentioned above, Section 415 has two parts.
While in the first part, the person must 'dishonestly'
or 'fraudulently' induce the complainant to deliver
any property; in the second part, 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.
As observed by this Court in Jaswantrai Manilal
Akhaney v. State of Bombay [AIR 1956 SC 575: 1956 Cri
LJ 1116], a guilty intention is an essential ingredient
40
Neutral Citation No. ( 2024:HHC:14358-DB )

of the offence of cheating. In order, therefore, to
secure the conviction of a person for the offence of
cheating, 'mens rea' on the part of that person must
be established. It was also observed in Mahadeo
Prasad v. State of W.B. [AIR 1954 SC 724: 1954 Cri LJ
1806] that in order to constitute the offence of cheating,
the intention to deceive should be in existence at the
time when the inducement was offered."(emphasis
supplied)

14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8
SCC 686: 2000 SCC (Cri) 47] dealing with the effect of
existence of arbitration clause in the agreement on
criminal prosecution on the ground that civil proceedings
are also maintainable, this Court has held that quashing of
FIR or a complaint exercising power under Section 482
CrPC should be limited to a very extreme exception; merely
because an act has a civil profile is not enough to stop
action on the criminal side. It is further held that a
provision made in the agreement for referring the disputes
to arbitration is not an effective substitute for a criminal
prosecution when the disputed act constitutes a criminal
offence.

35. A similar view was taken in G.V. Rao v. L.H.V. Prasad,

(2000) 3 SCC 693 as under:

"4. "Cheating" is defined in Section 415 of the Penal Code,
1860, which provides as under:

"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
41
Neutral Citation No. ( 2024:HHC:14358-DB )

person in body, mind, reputation or property, is said
to 'cheat'.

Explanation.--A dishonest concealment of facts is a
deception within the meaning of this section."

5. The High Court quashed the proceedings principally on
the ground that Chapter XVII of the Penal Code, 1860 deals
with the offences against properties and, therefore,
Section 415 must also necessarily relate to the property
which, in the instant case, is not involved and,
consequently, the FIR was liable to be quashed. The broad
proposition on which the High Court proceeded is not
correct. While the first part of the definition relates to
property, the second part does not necessarily relate to
property. The second part is reproduced below:

"415. ... 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'."

6. This part speaks of intentional deception, which must
be intended 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. The
intentional deception presupposes the existence of a
dominant motive of the person making the inducement.
Such inducement should have led 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 an act or omission should
have caused damage or harm to body, mind, reputation or
property.

7. As mentioned above, Section 415 has two parts. While in
the first part, the person must "dishonestly" or
"fraudulently" induce the complainant to deliver any
42
Neutral Citation No. ( 2024:HHC:14358-DB )

property; in the second part, 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. As observed by this
Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR
1956 SC 575: 1956 Cri LJ 1116: 1956 SCR 483], a guilty
intention is an essential ingredient of the offence of
cheating. In order, therefore, to secure the conviction of a
person for the offence of cheating, "mens rea" on the part
of that person must be established. It was also observed
in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954 Cri
LJ 1806] that in order to constitute the offence of cheating,
the intention to deceive should be in existence at the time
when the inducement was offered.

8. Thus, so far as the second part of Section 415 is
concerned, "property", at no stage, is involved. Here, it is
the doing of an act or omission to do an act by the
complainant as a result of intentional inducement by the
accused, which is material. Such inducement should result
in the doing of an act or omission to do an act as a result of
which the person concerned should have suffered or was
likely to suffer damage or harm in body, mind, reputation
or property. In an old decision of the Allahabad High Court
in Empress v. Sheoram [(1882) 2 AWN 237], it was held by
Mahmood, J.:

"That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section

415."

36. In the present case, it has been found above that the mere gift of the half share by Vidya Devi did not amount to 43 Neutral Citation No. ( 2024:HHC:14358-DB ) divestment of her forest right as per Rule 4A (supra). Therefore, she had not made any false representation, and she cannot be held to be guilty of cheating.

37. It was submitted that a wrong report was made by Patwari Gulbadan and Forest Guard Totu Ram, which facilitated the grant of TD to Vidya Devi. This is also based upon the premise that after the transfer of her share in Khasra No.2372, Vidya Devi was left with no right, which is not correct because forest rights remained with her because of Rule 4A of Forest Rules of Kullu Division of 1878.

were retained; hence, the representation made by these persons cannot be said to be false so as to attract the provisions of Section 420 of IPC.

38. Vidya Devi, being the right holder, was entitled to get the TD and the sanction of TD in her favour is not illegal; hence, the offence punishable under Section 13(2) read with Section 13(1)

(d) of the Prevention of Corruption Act is not made out. Therefore, the learned Trial Court had taken a reasonable view, and this Court will not interfere with the same while deciding an appeal against acquittal, even if the other view is possible. 44

Neutral Citation No. ( 2024:HHC:14358-DB )

39. In view of the above, the present appeal fails and the same is dismissed.

40. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the respondents/accused are directed to furnish their personal bond in the sum of ₹25,000/- each with one surety each in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondents/accused, on receipt of notice(s) thereof, shall appear before the Hon'ble Supreme Court.

41. Records be sent back forthwith. Pending applications, if any, also stand disposed of.

(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 13th December, 2024 (saurav pathania)

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