Bombay High Court
Manikraj Devraj Moharkar vs The State Of Maharashtra on 4 December, 1997
Equivalent citations: 1998BOMCR(CRI)~, (1998)1BOMLR653
ORDER V.H. Bhairavia, J.
1. This appeal is directed against the judgment and order date 31-10-1990, passed by the learned Addl. Sessions Judge, Pune, in Sessions Case No. 594 of 1988, whereby, the appellant-accused has been convicted for the offences punishable under sections 420 and 468 of I.P.C.
2. The prosecution case in brief is that, the appellant alongwith other two accused had been chargesheeted for offences punishable under sections 255, 260, 261, 268 and 420 r/w. 34 I.P.C. It is alleged that in between January 1988 to 12th August, 1988, at Pune, all the accused counterfeited certain stamps issued by the Government for the purpose of revenue and used the said stamps as a genuine counterfeit with intent to cause loss to the Government and during the said period, they forged certain documents i.e. appointment orders under the signature of Police Superintendent, Shivajinagar, Pune City Police Office, Pune and also the letters of interview call issued by the Employment Exchange office of sub-region, Pune intending that the same shall be used for the purpose of cheating and by such act to issue calls to the persons viz. Vithal Krishna Margaje, Shamrao Gulabrao Shinde and other 16 persons dishonestly induced each of them to deliver money to them to the extent of Rs. 10,000/- each.
3. That, at Pune, the police force is divided into two sections i.e. for Corporation area and another for Rural area. The Commissioner of Police is a Head of Police force for Corporation and the Superintendent of Police is the Head of Police Force for the Rural area. The Commissioner of Police and Superintendent of Police are the appointing authorities of Police Constables for the said respective areas. It is submitted that the Dy. Commissioner of Police Shri Bhal received a xerox copy of the appointment order of one Hanumant Krishna Margaje as a Constable in City Police area. On receiving the said copy, he suspected that a gang of some persons is going to issue such false orders to some persons and obtaining money from them. He, therefore, brought this fact to the notice of his higher officers and entrusted the investigation to Assistant Commissioner of Police Shri Thakur. The Assistant Commissioner of Police Shri Thakur then asked P.S.I. Pratap Shankar Randive to make enquiry in the matter. Thereafter, he registered a case of cheating and investigated the said offence. P.S.I. Shri Randive visited the house of the appellant-accused No. 1 located at Dehu Road and took search of his house in the presence of panchas. During the search, they found three rubber stamps of the Office of the Police Commissioner and Superintendent of Police, Pune, ink pad and another rubber stamp of clerk of Superintendent of Police, Pune. They have also found some blank copies of order of recruitment for the post of police constables, identity cards of some persons, xerox copies of call of interview issued by Employment Exchange Office, some postal stamps and some envelopes etc. and all these documents attached in the presence of panchas after drawing the panchanama (Exh. 12). It reveals from the record that at that time, the appellant-accused was in the house and after seizing of the documents, he brought to the police station. On the next day, he was taken to his another residence at Ganesh Peth. During the search at Ganesh Peth house, a cash for an amount of Rs. 2,000/- was found. On 12-8-1988, one Hanumant Krishna Margaje came to the police station and lodged his complaint (Exh. 25) against the accused persons. On the basis of the said complaint, C.R. No. 276 of 1988 was registered and the investigation was carried out by P.S.I. Randive.
4. During the investigation, the prosecution received in all 19 to 20 such other complaints of cheating at the hands of the accused and their statements were also came to be recorded. After completing the investigation, chargesheet was submitted to the learned Magistrate's Court and as the case was triable by the Sessions Court, the same was transferred to Sessions Court, Pune.
5. The appellant-accused alongwith other two accused were charged and prosecuted for the aforesaid offences. After recording the prosecution evidence, the learned Judge by his judgment and order dated 31st October, 1990, was pleased to hold that the appellant-accused was not found guilty for the offences punishable under sections 255, 260 and 261 of the I.P.C. and therefore, he was acquitted. However, the appellant-accused was held guilty for the offences punishable under sections 420 and 468 of I.P.C. and therefore, he was convicted and sentenced to undergo R.I. for three years !or each count and to pay a fine of Rs. 2,000/- for each count or in default to suffer S.I. for six months for each count. The substantive sentences were ordered to run concurrently. Further, the learned Judge was pleased to acquit accused Nos. 2 and 3 for the charges levelled against them. Hence this appeal by the appellant.
6. Heard Mrs. Anita Agarwal, learned Counsel on behalf of the appellant-accused and Mr. M.P. Galeria, learned A.P.P. for respondent-State.
7. It has been submitted by Mrs. Agarwal, learned Counsel for the appellant that the judgment and order of conviction is unsustainable at law. It is submitted that the ingredients of the charge for the offence punishable under section 420 I.P.C. i.e. cheating have not been proved by the prosecution. It is submitted that it is not held to be proved that the documents seized from the alleged house of the appellant-accused at Dehu Road, belonged to him. It has been submitted that the residence of the appellant-accused is admittedly shown to have been situated at Ganesh Peth. Therefore, no reliance could be placed on the seizure of the documents produced before the Court connecting the appellant-accused with the crime and the appellant is entitled for acquittal on that count. Further, it has been submitted that there is no evidence led by the prosecution regarding parting with the money. Not a single witness has produced any documentary evidence regarding the inducement made to him by the appellant-accused to part with the money. The evidence regarding inducement led by the prosecution and relied on by the learned Judge is a weak evidence and no reliance can be placed on such weak evidence. Mrs. Agarwal has emphatically submitted that the prosecution has failed to get in writing the expert's opinion regarding the hand writing and therefore, whatever documents seized and used as incriminating documentary evidence against the appellant, is bad-in-law on that count also, the conviction is bad-in-law and the appellant-accused is entitled for acquittal. I am unable to agree with the submission of Mrs. Agarwai, learned Counsel for the appellant.
8. Having gone through the record and proceedings of this case, so far as charge under section 420 I.P.C. is concerned, there is ample evidence on record to hold the appellant-accused guilty for committing the said offence. Section 420 I.P.C. reads as under:--
420. Cheating and dishonestly inducing delivery of property cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. ' The ingredients of cheating are under section 415 of I.P.C. which read as under :---
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or
(b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by the second part of (ii), the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
The ingredients required to constitute an offence of cheating are:
(1) There should be fraudulent or dishonest inducement of a person by deceiving him. (2) (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 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 (3) in cases covered by (2) (b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
Dishonest intention at the inception of delivery or retention of property is the gist of the offence of cheating punishable under section 420 I.P.C. and, therefore, every subsequent non-payment, in the transaction of sale on credit, is not within its ambit.
9. In the instant case, before considering the documentary evidence, the oral evidence of the complainant and the other witnesses who are victims in this case, is to be taken into consideration, P.W. 6, the complainant in his evidence has stated that he its a resident of Malsenagar doing the work of plumbing, studied upto 8th standard and he alongwith his brother was trying to get employment by hook or crook. One Gakare,. rikshaw driver was his neighbour. The brother of this witness asked Gajare to make an enquiry about the service. This rikshaw driver took him (P.W. 6) and his brother to Padmavati to the house of one Khandale. Khandale told them that he will nnanage for service in Police Department and for that they will have to pay money to him. Then Khandale and Gajare took them to Ganesh Peth to Mohorkar (appellant-accused). Mohorkar, the appellant-accused told them to pay Rs. 7,000/- each to get service in the Police Department He deposed that they agreed to pay Rs. 6,000/-each if they get service. The brother of this witness brought Rs. 6,000/- from his brother-in-law and on the next day, they went alongwith Khandale and Gajare to the appellant-accused and paid Rs. 10,000/- on 30th January, 1988. The appellant-accused assured them to get service in the police department. He also asked them to obtein employment card. On 2-7-88, accused No. 1 sent them an employment letter. By that letter, they were asked to remain present for medical examination at Sassoon Hospital, Pune. Thereafter, on 1-9-88, they received a call letter. It is deposed that this witness (P.W. 6) showed that call letter to one person who was working in the Police department. That person told him that it was a false call letter. Thereafter, he went to the Police Station and narrated the said fact to the police and his complaint was recorded Like this, other witnesses i.e. P.W. 4, P.W. 5, P.W. 8, P.W. 11, P.W, 12 etc. have come forward and reported to the police. The Investigating Officer recorded their statements. The clinching prosecution evidence regarding the demand of money and regardingthe inducement by the appellant-accused for getting job for the witnesses and relying on the word of promise of appellant-accused parting with money under the hope that they will get job, is concerned, I have no doubt in my mind that there was an inducement by the appellant for securing job on receiving the demanded money. Relying on the false promise of the appellant, these witnesses have parted with the money. Some witnesses have paid Rs. 10,000/-, some have paid Rs. 5,000/- and some have paid Rs. 6,000/- to the appellant-accused and they have also received the appointment orders under the false signature of the competent authority of the police department and on verification, it was found that those appointment orders were false orders and they were forged documents. The argument of Mrs. Agarwal that there is no evidence of demand of money and the witnesses were parted with money, in my opinion, all the witnesses have categorically deposed that they had been induced for security job by the appellant and demanded the amount. The evidence regarding parted with the money that they have not produced any documentary evidence from where they got the money and the source of getting the money against the inducement, it is true that the witnesses have not produced any documentary evidence that they have parted with the money but the clinching oral evidence and consistant prosecution case of cheating is concerned, I do not find any reason for believing the oral evidence and of the prosecution witnesses who were the victims of cheating have categorically and inconsistently deposed that they have paid money to the appellant-accused against the inducement of securing job for them and in return to that, the appellant has issued the appointment orders which were ultimately found forged. The learned Counsel Mrs. Agarwal is right in her submission that the signature of the appointment enters have not been held proved and the learned Judge has rightly believed that aspect and acquitted the accused persons for the charge of forgery. Therefore, that question does not arise at this stage. The question before me is whether the appellant is responsible for an offence of cheating and in my opinion, having considered Ihe prosecution evidence in toto, there is no slightest doubt in my mind that the appellant has cheated the witnesses victims. Apart from oral evidence, the circumstantial evidence connecting the appellant-accused with the crime is documents Articles 1 to 20 found in the rexin bag seized on the first day in the night from the house of the appellant, situated at Dehu Road in the presence of panchas and the appellant-accused. The presence of the appellant-accused in the house in question (Dehu Road) is proved by the panch witnesses and the investigated agency does not concern whether that house belonged to the appellant-accused or not. Once the presence of the appellant-accused is established in the particular premises, then the argument regarding occupancy of the house becomes irrelevant. The panch witness P.W. 1 has categorically stated that in his presence, the search was made, the accused was present, he refused to have his personal search and the rexin bag was seized and from that bag, incriminating documents pertaining to the medical examination forms, the forms of appointment, rubber stamps and the typed and xerox copies of documents were found. The rubber stamps and the Revenue stamps alleged to have been used by the appellant-accused in issuing the appointment orders which fact is also held to be proved from the evidence of P.Ws. 2 and 3 that they have prepared the xerox copies and rubber stamps. However, the signature on the appointment order was not held to be proved. Therefore, though the rubber stamp used by the appellant, the signature could not be held proved and the learned Judge has rightly held so, but it does not destroy the prosecution case. This is the circumstantial evidence showing the involvement of the appellant of cheating. Further, it reveals from the record that P.W. 11 in his deposition has categorically stated that he has paid Rs. 2,000/- to the appellant and as per his promise, he did not gel the order of appointment. The appellant-accused has written a letter (Exh. 45) to this witness wherein he has again assured him that he will get order within a week. This witness has identified the signature of the appellant and the learned Judge has been satisfied himself by comparing the signature of the appellant-accused with his signature on the Vakalatnama. I myself also compared and satisfied that the letter Exhibit 45 is written by the appellant himself and the signature thereon is the same. This is also one of the circumstantial evidence showing the involvement of the appellant-accused for offence of cheating. The learned Counsel Mrs. Agarwal for the appellant in support of her submissions relied on the observations of the Supreme Court in H. Venkatachala lyengar v. B.N. Thimmajamma and others, and in the case of Shri Baru Ram v. Smt. Prasanni and others, wherein it has been observed thus :---
Circumstantial evidence to prove signature-When sufficient.
"Sections 45 and 47 of Evidence Act prescribe the method in which such signature can be proved. Under section 45 the opinion of the handwriting experts is relevant while under section 47 the opinion of any person acquainted with the handwriting of the person who is alleged to have signed the document is admissible. This, therefore, the manner in which the alleged signature of a person could and should have been proved; but even assuming that the signature of the person could be legally held to be proved on circumstantial evidence, the principle which governs the appreciation of such circumstantial evidence in cases of this kind cannot be ignored. It is only if the Court is satisfied that the circumstantial evidence irresistibly leads to the inference that the person must have signed the document in question that the Court can legitimately reach a conclusion."
In my opinion, the aforesaid citation is not helpful to the appellant-accused.
In the case of Mobarik Ali Ahmed v. The State of Bombay, , it has been observed thus-
Proof of genuineness of document-Proof by contents of document The Sic to proof 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 of the signature, by one of the modes provided in sections 45 and 47 of the 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 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. In an appropriate case the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and this to determine its authorship.
Presumptive evidence of receipt of letter.
Illustration (b) to section 16 only means that each of the facts, namely posting of a letter and the non-return of the original from the Dead Letter Office, is relevant. It cannot be read as indicating that without a combination of these facts no presumption as to receipt of the letter can arise. Indeed that section with the illustrations thereto has nothing to do with presumptions but only with relevance.
In the case reported in Tulsi Flam and others v. The State of Uttar Pradesh, , it has been observed thus-
Applicability-Chealing-Essentials- Dishonestly induces-Wrongful gain or wrongful loss-Proof of one of them is enough-Accused obtaining credits from banks for large sums on strength of hundis supported by forged railway receipts-Offence.
For a person to be convicted under section 420 I.P.C. it has to be established not only that he has cheated someone but also that by doing so he has dishonestly induced the person who was cheated to deliver any property etc. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain to a person means a gain to him by unlawful means of property to which the person gaining is not legally entitled. These are the two facets of the definition of dishonesty and it is enough to establish the existence of one of them. The law does not require that both should be established.
In the case reported in Shivnarayan Kabra v. The State of Madras, , it has been observed thus-
For offence under section 420, accused need not make false pretence in express words-Same may be inferred from all circumstances including conduct of accused in obtaining property.
Having considered the entire prosecution evidence, in my opinion, the prosecution has successfully proved the charge of cheating punishable under section 420 of I.P.C, and I am concurrent with the finding of the learned Judge. In view of that, the appeal requires to be dismissed and the order of conviction and sentence requires to be confirmed. However, it has been pointed out by Mrs. Agarwal, learned Counsel for the appellant that the prosecution case is of 1988,10 years have already been passed and the appellant, by this time attain the age of 60 years and he is also suffering from illness and he is physically weak. It is submitted that pending prosecution, the appellant-accused remained in jail for about one month and 17 days. Therefore, considering the old age and the physical condition of the appellant-accused, the ends of justice will be met if the order of sentence is reduced to the period already undergone by him and the fine is enhanced.
10. In the result, appeal is partly allowed. The order of conviction is confirmed. However, the order of sentence is modified to the extent that the order of sentence of R.I. for three years on each count imposed on the appellant-accused is reduced to the period already undergone by him and the fine is enhanced from Rs. 2,000/- to Rs. 5,000/, in default, one month's S.I. The appellant-accused is directed to pay the fine within 8 weeks from today.
11. Appeal allowed partly.