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50. PW11 Mohan Jain and PW13 Deepika Jain themselves CBI Vs. Naresh Chandra & Another Page No. 26 of 48 got prepared false documents bearing their false signatures and introduced them in the file of the said property lying with the DDA. Mohan Jain and Deepika Jain themselves gave the SPA Ex.PW11/BB bearing their false signatures to A1 for execution of the Conveyance Deed. A1 took the same to DDA office and at their instance and instructions got the Conveyance Deed executed. They prepared false documents and introduced the same in the file of the said property in DDA because A1 knew if at any stage any forgery is detected regarding the execution of the documents in respect of the Conveyance Deed then the same would be null and void in terms of clause (iv) of the conveyance deed. Their plan was that once the Conveyance Deed thus executed on the basis of false documents got declared null and void, they would execute fresh GPA and SPA alongwith Agreement to Sell and Possession Letter in favour of some third party against consideration so that they can apply for fresh conversion in their favour on the basis of above said documents seeking freehold of the said property in the favour of A1. With this scheme in mind, they had never made any complaint to the DDA stating that they were not the real owners of the said property and were only the projected owners. As their malafide designs to cheat A1 of his hard earned money failed and they had to sell off the property to A1 and A1 being entitled for the same in lieu of his loan amount, they have deposed against A1 in CBI Vs. Naresh Chandra & Another Page No. 27 of 48 the Court.
67. S.463 IPC defines 'forgery'. It is clear from the definition of Section 463 IPC that apart from making a false document, the person should intend to cause damage or injury either to the public or CBI Vs. Naresh Chandra & Another Page No. 35 of 48 to any person, and then only it would amount to forgery.
68. S.464 IPC defines 'making a false document'. It says that a person is said to make a false document, who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document. It is clear from this that a person is said to have made a false document if he dishonestly or fraudulently makes or executes such a document. All nongenuine documents are not forged. They must be covered by the conditions indicated in Sections 463 & 464 IPC.
70. Thus, in the present case at hand, it has not been proved that the alleged signatures on aforementioned documents were in the handwriting of accused persons. Though not referred to or relied upon, it has been held in Upender Nath Nayak Vs. Union of India, AIR 1984 Orissa 71 that the charge of forgery based on mere suspicion or doubt is not maintainable. It has further been held in judgment reported as Binayak Dass Vs. State of Orissa, 1974 Cut LR (Cri) 545 that the opinion of handwriting expert is absolutely necessary to prove the charge of forgery against the accused. As the prosecution has failed to prove the forgery qua the aforementioned first set of documents, CBI Vs. Naresh Chandra & Another Page No. 37 of 48 accused cannot be convicted for these offences.
"... It may be pointed out at once that it was not suggested before us that Dr. Dutt made a false document within the definition of the expression in Section 464 of the IPC. In fact, there was no complaint that he committed the forgery himself. He was said to have used a false document as genuine dishonestly and fraudulently. The word dishonestly is defined by Section 24 of Penal Code. A person who does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. Dr. Dutt's CBI Vs. Naresh Chandra & Another Page No. 39 of 48 conduct involves neither a gain to any person nor loss to another. He was asked to produce the diploma in Court and he did. It is a matter of some doubt whether he can be said to have used the diploma because he did not voluntarily bring the diploma to Court. There is authority to show that such a user is not contemplated by Section 471 of the IPC. Even if one were to hold that he did use the document as genuine his intention in producing it was to support his statement and not to cause a wrongful gain to himself or to cause wrongful loss to another. This part of the section does not apply. The next question is whether his conduct can be said to be fraudulent. The word 'fraudulently' is defined by Section 25 of the Penal Code. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The last three words 'but not otherwise' clearly indicate that the intent must be an 'intent to defraud'...".