Madhya Pradesh High Court
Karan Kohli vs The State Of Madhya Pradesh on 11 October, 2018
1 Cr.R.No.199 of 2018
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Single Bench : Hon'ble Shri Rajeev Kumar Dubey, J.
Criminal Revision No.199/2018
Karan Kohli
vs.
The State of Madhya Pradesh and Others
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Shri Pankaj Dubey, Advocate for the applicant.
Shri S.K. Rai, Government Advocate for the respondent No.1/State.
Shri Ravindra Nath Tripathi, Advocate for the respondent No.2.
Shri Mukesh Kumar Pandey, Advocate for the respondent No.3.
None for the respondent No.4 even after service of notice.
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ORDER
Reserved on : 04/10/2018 Delivered on : 11/10/2018 This criminal revision under Section 397/401 of Cr.P.C. has been filed against the order dated 21/12/17 passed by learned Additional Session Judge, Jabalpur in S.T. No.651/17 where by learned ASJ discharged the non applicants No. 2 to 4 for the offences punishable under Section 467, 468 and 471 of the IPC.
As per prosecution case, on 29.07.2017 complainant Karan Kohli lodged a report at Police Station Omti, District Jabalpur averring that he is a dealer of bikes of Yamaha Company and runs the business in the name of M/s. Tilak Raj Motors. On 02/01/17, non applicant No.4/accused Dinesh Ankar met him and introduced himself as CBI Inspector and told that up to the end of year 2017, CBI has to supply 1200 vehicles to the various persons 2 Cr.R.No.199 of 2018 who worked for the department and non applicant No.2 Shakti Singh, non applicant No.3 Harikant Bhardwaj and non applicant No.4 Dinesh Ankar purchased 135 two wheelers worth of Rs.97,42,913/- on credit and in lieu of that amount they gave three cheques of Rs.20 Lakhs, 25 Lakhs and 25 Lakhs respectively. But said cheques were dishonoured. Thus they cheated complainant.
On that police registered Crime No.339/2017 for the offence punishable under Section 170, 419, 420, 467, 468, 471, 34 & 120-B of the I.P.C. against non applicant Nos.2 to 4 and investigated the matter and during investigation also seized one forged identity card from the possession of non applicant No.4 on 06/08/17 and filed charge-sheet after investigation against the non applicant Nos.2 to 4 for the offence punishable under Sections 170, 419, 420, 467, 468, 471, 34 and 120 and 120-B of the I.P.C. before learned JMFC, Jabalpur who committed the case to the Court of Session. On that S.T.No.651/2017 was registered and the ASJ Jabalpur by order dated 21/12/2017 discharge the respondent Nos.2 to 4 for the offence punishable under Section 467, 468 & 471 of the I.P.C. and remanded the case under Section 228 of the Cr.P.C. to CJM, Jabalpur for trial observing that the other offences are triable by JMFC. Being aggrieved from that order complainant Karan Kohli filed this revision.
Learned counsel for the applicant submitted that from the F.I.R. it is apparent that non applicant No.4/accused Dinesh Ankar met the complainant and introduced himself as CBI officer and alluring the complainant that CBI required 1200 vehicles to supply them to various persons who worked for the department, non applicant Nos. 2 to 4 purchased 135 two wheelers worth of Rs.97,42,913/- on credit and committed fraud with the applicant. Police during investigation, also seized an identity card of non applicant No. 2 which reflects that the non applicant No. 2 is an Officer of Intelligence Bureau, while the card was forged which clearly shows that the non applicant No.4 prepared that card for committing fraud and non applicant Nos. 2 to 4 committed fraud with the applicant on the basis of that fake identity card. So offence under Sections 467, 468 and 471 of the I.P.C. are clearly made out against the non applicant Nos. 2 to 4. He further Submit Digitally signed by VARSHA SINGH Date: 2018.10.24 15:54:24 +05'30' 3 Cr.R.No.199 of 2018 that at the stage of framing of charge only it has to be seen that from the charge sheet whether prima facie charge is made out or not, for framing of charge strong suspicion about commission of offence and accused's involvement of offence is sufficient. On merits, materials/documents filed by accused can not be considered. Material produced by prosecution alone is to be considered. Roving inquiry and mini trial is not permissible. From the charge-sheet offence under section 467,468,471 is clearly made out against the non applicants No.2 to 4. Learned ASJ committed mistake in discharging the non applicants No.2 to 4 from the aforesaid charges. In this regard, learned counsel also placed reliance on Apex Court judgment passed in Satish Mehra Vs. State of N.C.T. of Delhi and Another reported in (2012) 13 SCC 614 and Apex Court judgement passed in State of Tamil Nadu by Police Vigilance and Anti-Corruption Vs. N. Suresh Rajan and Others reported in (2014) 11 SCC 709.
learned counsel for the respondent No.2 State supported the applicant's contention.
On the other hand, learned counsel for the respondents No.2 and 3 submitted that there is no mention in the F.I.R. lodged by the complainant as well as in the case dairy statement of prosecution witnesses recorded by the police under section 161 of the Cr.P.C. during investigation that non applicant No.4 Shakti Singh used the fake identity card for committing fraud with the complainant. So learned ASJ did not commit any mistake in holding that no offences under Section 467,468 and 471 is made out against the non applicants No.2 to 4 from the charge-sheet.
This Court has gone through the record and arguments put forth by the learned counsel for the parties.
Apex Court in the case of Satish Mehra Vs. State of N.C.T. of Delhi and Another reported in (2012) 13 SCC 614 relied by the learned counsel for the applicant held that "A criminal trial cannot be allowed to assume the character of a fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and continue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the 4 Cr.R.No.199 of 2018 system of criminal jurisprudence that has been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, establishing the commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused" and in the case of State of Tamil Nadu by Police Vigilance and Anti-Corruption Vs. N. Suresh Rajan and Others reported in (2014) 11 SCC 709 (Supra) Apex Court held "True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage".
From the above judgements of the apex court also it is clear that at the stage of framing of the charge court has to evaluate the materials and documents produced by the prosecution with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.
Apex Court in the case of Niranjan Singh Karam Singh Punjabi V. Jitendra Bhimraj Bijja, AIR 1990 S C 1962 held that at the stage of framing Digitally signed by VARSHA SINGH Date: 2018.10.24 15:54:40 +05'30' 5 Cr.R.No.199 of 2018 the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
As regards scope of Sections 227 and 228 of the Criminal Procedure Code, Apex court in his judgement Sajjan Kumar vs C.B.I (2010) 9 SCC 368 also observed as thus:- On consideration of the authorities about the scope of sections 227 and 228 of the Code, the following principles emerge:-
"(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case."
Which also shows that the Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
In the light of above pronouncement of the apex court if we examine the evidence collected by the prosecution during investigation, then Section 467 of IPC reads as thus :-
Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
And Section 468 reads as thus:-
Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.6 Cr.R.No.199 of 2018
From bare perusal of the provisions of section 467 it is clear that for attracting the provisions of section 467 of IPC it is not necessary that the person used the forged document merely forging the document as mentioned in the section 467 of IPC is enough for attracting the provisions of section 467 of IPC, mere possession of the document and intent to use the document is enough to convict the accused under section 467 of I.P.C .
But for attracting the provisions of section 467 of I.P.C. it is also necessary that the forgery was committed in relation to a document which purports to be,
(a) a valuable security; or
(b) a will; or ( c) an authority to adopt a son; or
(d) which purports to give authority to any person to make or transfer any valuable security; or
(e) to receive the principal, interest or dividends thereon; or
(f) to receive or deliver any money, movable property or valuable security or any document purporting to be an acquittance or receipt acknowledging the payment of money; or
(g) an acquittance or receipt for the delivery of any movable property or valuable security.
The valuable security is also define in the section 30 of IPC. Section 30 of IPC is reads as thus:-
Valuable security" The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right.
A fake identity card is not a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security. So only on the basis 7 Cr.R.No.199 of 2018 that police seized one fake identity card of CBI Officer from the possession of non applicant No.4 Dinesh Ankar offence under Section 467 of IPC is not made out.
Likewise from the bare reading of the provisions of Section 468 it is apparent that offence under Section 468 is made out when a person forged a document with the intent that it shall be used for the purpose of cheating. Section 468 does not require that the accused should actually commit the offence of cheating. What is material is the intention or purpose of the offender in committing forgery. For proving the case under Section 468 of the IPC prosecution is required to establish that the accused had committed forgery and that he did it with the intention that document forged shall be used for the purposes of cheating.
But in this case from the FIR, it is clear that before lodging the FIR of the offence by the complainant, the offence of cheating had already been committed by the non applicants and it also mentioned in the FIR that before lodging the F.I.R. by the complainant, when from the non applicant no.4 Dinesh Anakar the complainant wanted the documents related to his identity card and department's letter regarding purchase of the vehicles he avoided it by saying that in view of security, he could not show the documents. Police seized the identity card from the possession of non applicant no.4 after the incident. So there is no evidence on record to show that non applicant no.2 made forged identity card with the intent that it shall be used for the purpose of cheating.
Section 471 reads as thus :-
where a person fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record] .
From the provisions of Sections 471 of IPC, it is clear that the offence under Sections 471 are only made out when any person uses any forged document for committing fraud while in this case there is no evidence on record to show that the non applicants/accused used the alleged forged card to commit fraud. Neither in the F.I.R. nor in the statement of complainant, 8 Cr.R.No.199 of 2018 recorded by the police during investigation it is mentioned that non applicant ever produced that card before him. On the contrary in the FIR lodged by the complainant Karan Kohli, it is mentioned that when the complainant demanded the documents related to his identity card from the non applicant no.4 Dinesh Anakar and department's letter regarding purchase of the vehicles he avoided it by saying that in view of security, he could not show the documents. There is no other evidence on record to show that the respondent ever produced said forged card before the complainant to show himself as CBI Officer. So no offence under section 467, 468 and 471 are made out from the charge sheet against the non applicants no. 2 to 4. In the considered opinion of this court learned ASJ did not commit any mistake in holding that from the charge sheet no offence under section 467, 468 and 471 are made out against the non applicants no. 2 to 4. Hence, revision has no force and liable to be dismissed and is hereby dismissed.
(Rajeev Kumar Dubey) Judge vs Digitally signed by VARSHA SINGH Date: 2018.10.24 15:54:53 +05'30'