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Mr. S.V. Raju learned Advocate for the petitioners in Miscellaneous Criminal Application No.1684 of 2008 has vehemently argued that on perusal of the contents of the first information report, no offence much less any offence under section 406 of the Indian Penal Code, can be said to be made out. It is submitted that the complaint can be divided into three compartments viz. (i) Criminal breach of trust, (ii) Cheating and (iii) Forgery. It is submitted that insofar as the offence of criminal breach of trust is concerned, section 405 IPC which defines criminal breach of trust envisages entrustment with property to the accused. It is submitted that in the present case the basic ingredient, i.e. entrustment of property is missing, in the circumstances, the provisions of section 406 IPC cannot be said to be attracted. Reliance is placed upon a decision of the Supreme Court in the case of Central Bureau of Investigation v. Duncans Agro Industries Ltd. (1996) 5 SCC 591 wherein it has been held that the expression ??entrusted?" appearing in Section 405 IPC is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. Attention is drawn to the complaint dated 23rd March, 2007 (Annexure E) forwarded by the petitioner No.2 to the Police Commissioner, Surat regarding the creation of false and fabricated power of attorneys, based upon which sale deeds have been executed in favour of the respondent No.2. Reliance is also placed upon a decision of the Supreme Court in the case of S.W. Palnitkar and others v. State of Bihar and another (2002) 1 SCC 241 wherein it has been held as follows:

State of M.P. (2003)3 SCC 11 for the proposition that to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. It is pointed out that there is no privity insofar as the respondent No.2 and the petitioners are concerned. The petitioners have in no manner induced the respondent No.2 so as to attract the provisions of section 420 IPC.

As regards the third compartment viz. forgery, it is submitted that merely because allegedly some wrong fact is stated in the sale deed, it does not amount to forgery. Referring to the provisions of section 463 and 464 IPC it is submitted that prima facie there are no allegations regarding forgery in the entire complaint. In support of his submissions the learned Advocate for the petitioners has placed reliance upon a decision of this Court in the case of State of Gujarat v. Motibhai Jethabhai Makwana, 1992 (2) GLH 306 wherein the Court after examining the provisions of section 463 and 464 IPC held thus: ?SThus, the assertion of a false claim in a document does not constitute the document a false one, when it is executed by the party who purports to execute it and there is no intention of causing a belief that it was executed by some other person, real or fictitious.?? Reliance is also placed upon a decision of this Court in the case of Maganbhai Jivramdas and Another, 1984 GLT 21 to submit that when the sale deeds in question were their own creation and there was no attempt on the part of the petitioners to make it appear that it was prepared by someone else, clauses (2) and (3) of section 464 are also not attracted because there is no question of alteration of a document in any material part, after it has been executed. Nor is there any question of causing any person to sign, seal or execute or alter any document at the hands of a man of unsound mind or of intoxicated mind or a man labouring under some deception.

The question to be examined by this Court is whether the allegations made in the FIR, even if they are taken at their face value and accepted in their entirety constitute any offence or make out a case against the accused.

The offences alleged against the petitioners are under section 406, 420, 465, 467, 468, 120-B and 114 IPC i.e. criminal breach of trust, cheating, forgery, forgery of valuable security, will, etc. and forgery for the purpose of cheating. For the sake of convenience each offence is being dealt with separately, in the context of the allegations made in the FIR.

The other offences alleged are under section 465, 467 and 468 IPC, which are punishing sections for the offence of forgery, forgery of valuable security, will etc. and forgery for the purpose of cheating. This Court in the case of State of Gujarat v. Motibhai Jethabhai Makwana (supra) after a detailed examination of the provisions of section 465 IPC in the light of the provisions of section 463 which defines ??forgery?" and section 464 which defines ??making a false document?", has held that the assertion of a false claim in a document does not constitute the document a false one, when it is executed by the party who purports to execute it and there is no intention of causing a belief that it was executed by some other person, real or fictitious.