CRIMINAL APPEAL 17/1981 on 4 September 1981

1. The appeal is arising out of the judgmentin Special Case No. 17/1981/RC No. 40/1981 on thefile of Special Judge, CBI, South Bihar, Patna dated23.05.2003, wherein the appellant was convicted forthe offences punishable under sections 468, 120-Band 420 r/w section 34 of the India Penal Code andwas sentenced under sections 120-B and 420 r/w 34of the IPC to undergo rigorous imprisonment forthree years each. Further, he was sentenced undersection 419 of the IPC to undergo rigorousimprisonment for two years and under section 468 ofthe IPC to undergo rigorous imprisonment for aperiod of three years. He was also sentenced to pay a fine of Rs. 25,000/-, and in default of payment tosuffer simple imprisonment for a period of sixmonths.

2. It is pertinent to mention that charges were framed against the appellant for the offencespunishable under sections 120-B, 420 r/w 34 of theI.P.C., 419 of IPC and 468 of IPC, however, theconviction was only for offences punishable undersections 468, 120B, and 420 r/w 34 of IPC but not forthe offence punishable under section 419 of the IPC.Nevertheless, despite the absence of convictionunder section 419 of the IPC, the trial Courtsentenced the appellant to undergo rigorousimprisonment for a period of two years for theoffence punishable under section 419 of IPC.

3. The case was registered based oninformation received from the informant, Shree B.NJha, an Inspector of CBI, S.P.E., Patna, through hissource. The case was initially registered for offencespunishable under the Indian Penal Code, as well asfor offences punishable under the Prevention ofCorruption Act, 1947. It is alleged in the F.I.R. that some officials of L.I.C. of India in conspiracy withsome officials of Central Bank of India, Dak BunglowRoad, Patna and others, dishonestly encashed L.I.C.cheques to a tune of about Rs. 28,00,000/- duringthe period from July, 1979 to 04.09.1981 underforged signatures of L.I.C. officials of the DivisionalOffice, Patna, and those cheques were enchashedfrom United Commercial Bank, Frazer Road, Patna,Bank of Baroda, Frazer Road, Patna, and CentralBank of India, Buddha Marg, Patna after opening theaccounts in different fake and fictitious names. Thecheques were cleared by the Central Bank of India,Dak Bunglow Road, Patna Branch and the amountswere credited to fake and fictitious account beforebeing subsequently withdrawn by the accusedpersons. It is further alleged that 128 LIC chequeswere stolen, out of which, 83 cheques were encashedthrough fake accounts and a total of Rs.32,20,254.56/- was withdrawn from the L.I.C.account.

4. On completion of the investigation, acharge-sheet was filed against all the accused, including the appellant, for the offences punishableunder sections 120-B, 420, 467, 468, 471, 477A, 381of IPC along with Sections under sections 5(2) r/w5(1)(c) and (d) of the Prevention of Corruption Act,1947. However, Sunil Sen Gupta was granted pardonu/s 306 of Cr.P.C.

5. During the course of trial, charges wereframed against all accused for the offencespunishable under sections 120B & 420 r/w Section 34of IPC. However, the trial Court also framed chargesagainst the appellant for the offences punishableunder Sections 419 and 468 of IPC. The content ofthe charges was read over and explained to him butthe appellant pleaded not guilty and claim to betried.

6. On behalf the prosecution, P.Ws. 1 to 60were examined and several exhibits were marked.The trial Court after construing the entire material onrecord, convicted and sentenced the appellant asstated [supra].

7. On perusal of the judgment, it is evidentthat the trial Court appreciated the evidences of P.W.

4, P.W. 56 and P.W. 58 and concluded that theappellant Vidya Nath Sharma @ Chunnu, who is thenephew of R.D. Sharma, is the prime accused in thiscase. Appellant was found at the residence of R.D.Sharma, and they both tried to destroy the evidenceby burning some papers. However, uponreconstruction, the CBI officials found that theaccount opening forms and specimen signature cardsof Canara Bank were in the name of Ram Bhajan Lal,a fictitious person and and on the name of anotherindividual, Shiv Nath Sharma. The column for theintroducer was signed under Vidya Nath Sharma inthe name of Shiv Nath and as the evidence of P.Ws.8, 56 and 58 corroborates these allegations, the trialCourt found him guilty for the aforesaid offences.

8. Heard, Mr. Mrigank Mauli, the LearnedSenior Counsel for the appellant as well as Ms.Nivedita Nirvikar, the Learned Senior counsel for theCBI.

9. It is specific contention of the Learnedcounsel for the appellant that the prosecution hasmiserably failed to prove the guilt of the appellant for the aforesaid offences and as such, the convictionand sentence of the appellant is to be set aside. It isalso contended by the Learned Senior counsel thatthe entire case revolves around the theft of 128 LICcheques and their encahshment in the names of thefictitious persons by some of the officials belongingto LIC. However, the evidence of P.Ws. 4, 56 and 58does not establish that the appellant encashed anyamount pertaining to the stolen 128 cheques,causing a loss of Rs. 32,20,254.56/- to LIC. It is alsocontended by the Learned Senior counsel that noneof the witnesses testified that the appellant wasalong with R.D. Sharma, on the date of crime or thathe attempted to destroy the evidence by burning thedocuments and in the absence of such evidence thetrial Court ought not have convicted him for offencespunishable under Sections 420 or 468 of IPC. Hefurther contended that there is no evidence onrecord to prove that the appellant conspired with theother accused to obtain wrongful gain from the LICof India. He further contended that in the absence ofany such evidence, the judgment of the trial Court should be set aside, as far as this appellant isconcerned. The Learned Senior counsel also reliedupon the judgment of the Hon'ble Apex Court, whichshall be considered at the time of appreciation of theevidence.

10. On the other hand, the Learned Seniorcounsel for the CBI contended that the evidence ofP.W. 4 clearly disclose that Vidya Nath Sharma @Chunnu opened an account in the name of ShivNath, for which P.W. 4 was the introducer and heintroduced him to the Bank, at the instance of theprime accused, R.D. Sharma, which clearly disclosethat fake bank accounts had been opened by theappellant and, therefore, the trial Court has rightlyconvicted him for the offences punishable underSections 120B, 420, 419 and 468 of the IPC and alsosentenced him for the said offences. She furthercontended that the evidence of P.W. 4 corroborateswith the evidence of P.W. 58 to prove that the bankaccount was opened in Canara Bank, wherein theappellant in the name of Shiv Nath made deposits inthe said bank on 23.04.1981, 27.04.1981 and 27.03.1981 to the tune of Rs. 601/-, 500/- and 101/-respectively and later Rs. 1000/- were withdrawnfrom the said account on 15.06.1981. Therefore, thesaid deposit of amounts and subsequent withdrawalclearly disclose that the appellant was using thebank account under the fictitious name of Shiv Nath.

11. The point for determination in thisappeal is- (i). Whether the prosecution was able toprove the guilt of appellant for the offencespunishable under Sections 120B, 419, 468 and 420r/w section 34 of IPC? and (ii). Whether the trialCourt has rightly convicted the appellant for theaforesaid offences?

12. In order to determine the above saidpoints, it is necessary to re-appreciate the evidenceon record.

13. It is important to note that Shree B.N.Jha Inspector of CBI, S.P.E., Patna registered the caseagainst the appellant and others basing on theinformation received by him. It is the case of theprosecution that the L.I.C. cheques had been stolenby some officials, who subsequently encashed an amount of Rs. 32,20,254.56/-, causing wrongful lossto the LIC of India.

14. The FIR was registered on 05.09.1981and the prime accused, R.D. Sharma was remandedto judicial custody on 07.09.1981. On completion ofthe investigation, a charge-sheet was prepared on21.04.1983. The trial Court framed the charges on10.01.1984 and the judgment was rendered on23.05.2003. It took almost 22 years to conclude thetrial from the date of registration of the case.

15. It is relevant to mention that the entireallegation against the appellant was that theappellant was the nephew of the prime accused, R.D.Sharma and during the search of the residentialpremises of R.D. Sharma, he bolted the main doorfrom inside and attempted to burn some papers andthat some of those papers were partly burnt whichwere seized by the CBI and upon reconstruction, theywere found to be the account opening forms andspecimen signatures of Canara Bank for an accountopened in the name of Ram Bhajan Lal, a fictitiousperson. It was also alleged that the accused R.D.

Sharma intended to open a fake account in the nameof Ram Bhajan Lal. The column for the introducerwas signed by the appellant Vidya Nath Sharmaunder the fictitious name of the Shiv Nath. However,on perusal of the charge, it is evident that theallegation made against the appellant was notframed as a charge. Admittedly, the charge wasframed against the appellant on 10.01.1984, in spiteof non-sufficiency of the charge for the allegationsagainst the appellant, the prosecution did not makeany effort to alter the content of the charge.

16. Section 216 of Cr.P.C. gives amplepower to the Court to alter the charge at any timebefore the judgment is pronounced. The charge-sheet do not disclose any specific allegation againstthe appellant regarding conspiracy or cheating. Itonly alleges that the appellant had signed theaccount opening from in the name of Shiv Nathwhich was a fictitious account in the name of RamBhajan Lal.

17. The evidence of P.W. 4/ SubhashChandra Das who is the owner of Das TV Center, disclose that in the month of March, 1981, he alongwith his family travelled to Kathmandu and theaccused R.D. Sharma along with his family and theappellant also travelled on the same plane. It isspecifically testified by P.W. 4 that he know thenephew of R.D. Sharma by the name Chunnu andidentified him in Court. He further testified that hehad an account in Canara Bank, Budhha Marg, Patnaand he was the introducer for the appellant at theinstance of R.D. Sharma. He also deposed that he donot know the real name of the appellant but thataccount was opened in the name of Shiv Nath andthe appellant made his signature as Shiv Nath.

18. Exhibit 3 is the bank account openingform. Ext. 3/1 is the signature under the name ofShiv Nath and the Ext. 3/2 is the signature of theintroducer i.e P.W. 4. Except this, there is no otherevidence on record to prove that Vidya Nath Sharmais Shiv Nath and that he signed the opening form inthe name of Shiv Nath.

19. P.W. 56 is the Investigating Officer, hisevidence disclose that the FIR was registered on 05.09.1981, and he took up the investigation,recorded statements of the witnesses, seizeddocuments send them to the Government forexamination to compare the admitted signatureswith the questioned signatures. He also conducted aTest Identification Parade of some of the accusedpersons. As per his evidence, 124 cheques werestolen from LIC, Divisional Office including one bookof 25 cheques, another book of 100 and three looseleaf cheques. However, his evidence contradictsitself regarding the number of cheques stolen as hementioned 124 cheques in one instance, and 128cheques in another instance. Further his evidencedisclose that out of 125 cheques, 83 wereencahshed and 68 were recovered.

20. P.W. 56/ Raj Kishore Singh did notmention any role of the appellant in his evidence.

21. The other evidence on record is that ofP.W. 58/ Pinak Ghoshal who was the Branch Managerof Canara Bank at the time of the occurrence i.e. inthe year 1981. He testified that Account No. 774 wasin the name of Shiv Nath with the address as "Care

of Das TV, Budhha Marg, Patna" and the P.W.4 wasthe introducer. His evidence further disclose thatamounts were deposited in the said account on23.04.1981, Rs. (601/-), on 27.04.1981, Rs. (500/-)and on 27.03.198, Rs. (101/-) totalling Rs. 1202/-and three paying slips were marked as Exhibit 35,35/A and 35/B respectively. His evidence furtherdisclose that a withdrawal slip, dated 15.06.1981 foran amount of Rs. 1000/- was signed under the nameof Shiv Nath. The said withdrawal slip is marked asExhibit 36. He further testified that the opening formin the name of Ram Bhajan was badly torn andshattered into pieces and as such, it could not bemarked as an Exhibit before Court. The evidence ofP.W. 58 only disclose that one Shiv Nath had anaccount bearing No. 774, with the address "Care ofDas TV, Buddha Marg, Patna" and that S.D. Das/P.W.4 was the introducer. He further testified thedetails regarding the deposit and withdrawal ofamount. However, no stolen cheques were depositedin the said account.

22. The entire case of prosecution is thatthe 128 cheques belonging to LIC were stolen bysome LIC officials and fictitious bank accounts wereopened under fake names wherein these chequeswere deposited and subsequently encashedamounting to Rs. 32,20,254.56/-.

23. On perusal of the evidences of P.Ws. 4,56 and 58, it is evident that that none of thewitnesses stated any criminal conspiracy, cheatingor forgery committed by the the appellant.

24. The cardinal principles of criminal law isthat the burden is on the prosecution to prove theguilt of the accused beyond a reasonable doubt andthe accused shall be presumed to be innocent untilthe guilt is proven. It is the duty of the prosecution toconnect the crime with that of the accused. It isnecessary to appreciate the citations relied upon bythe Learned Senior counsel for the appellant at thisjuncture.

25. In the case of Hari Sao and anothervs. State of Bihar reported in 1969 (3) SCC 107, their Lordships have held at Para Nos. 5, 7 and 10which reads as follows:-

5. Under Section 415 of the IndianPenal Code a person is said to cheatwhen he by deceiving another personfraudulently or dishonestly inducesthe person so deceived to deliver anyproperty to him, or to consent thathe shall retain anyproperty orintentionally induces the person sodeceived to do or omit to doanything which he would not do oromit if he was not so deceived andwhich act or omission causes or islikely to cause damage or harm tothat person in body, mind, reputationor property. There can be no doubtthat the appellants had by deceivingthe Station Master induced him todeliver a railway receipt which couldbe used as a valuable security; butassuming that the appellants therebyinduced the Station Master to makeout the railway receipt it will stillhave to be shown that the makingout of the receipt was likely to causedamage or harm to the railway or theStation Master.

7. It is therefore clear that therailway administration may be liablefor loss, destruction or non-deliveryof the goods under Section 73 if itfails to use reasonable foresight andcare in the carriage of the same andwould also be similarly liable even inrespect of goods carried at special

reduced rate if there was negligenceand misconduct on its part or any ofits servants. Such liability on the partof the railways arises whenever itissues a railway receipt. The questiontherefore arises as to whether therailway ran any additional risk orliability in acting upon therepresentation of the appellants andmentioning in the railway receipt thegoods consigned were said to be 251bags of chillies when in fact theywere only 197 bags of straw. Therecan be little doubt that the railwaydid not run any additional risk. Incase the goods were consumed byfire or even stolen from the wagondue to any negligence on the part ofrailway administration the ownerwould have to prove that he had puton rail 251 bags of chillies. He wouldalso have to prove the weight of thechillies and the approximate valuethereof. For this he would have tocall evidence to show how and whenhe acquired the goods and the pricehe paid for them and exactly whatquantity he loaded in the wagons.There would be no presumption thatthe goods put in the wagon werechillies because the railway did notaccept the consignment as such anddescribed it as 251 bags allegedlycontaining chillies. Nor was there anyacceptance of the weight of thegoods by the railway. Theendorsements. W.A. would negativethe plea, if any, that the weight was accepted by the railway. Theendorsement “L/U” emphasised thatthe loading and unloading being incharge of the consignor the railwaycould not be held liable for anynegligence in loading or unloading.

10. It appears to us that the falserepresentationmadebytheappellants in obtaining the railwayreceipt in the form in which it wasissued did not cast any additionalliability on the railway and the issueof the railway receipt therefore wasnot likely to cause any damage orharm to the railway. No question ofcheating the railway or the StationMaster therefore arose in this appealand the appeal must be allowed. Theappellants are directed to be set atliberty. The fine, if paid, must berefunded.

The above ratio of the ApexCourt squarely applies to the presentcase on hand. It is for theprosecution to prove that wrongfulloss was caused to the LIC due toacts of the appellant.

Admittedly, the prosecutioncould not connect that any of the en-cash cheques were deposited in theaccount of the appellant or that ofthe account of Shiv Nath.

26. In the case of Doctor Vimla Vs. Delhi Administration reported in AIR 1973 SupremeCourt 1572, their Lordships have categorically held that Sections 463 and 464 of IPC, define the term"false documents." Their Lordships further held inPara No. 5 as well as in Para Nos. 14 and 15 that thewords "fraudulently" and "dishonestly" are essentialto the definition of "false documents and areintended to defraud the following paragraph reads asfollows:-

5. Before we consider the decisionscited at the Bar, it would beconvenient to look at the relevantprovisions of the Penal Code, 1860:

"463: Whoever makes anyfalse document or part of adocument with intent to causedamage or injury, to the public or toany person, or to support any claimor title, or to cause any person topart with property or to enter intoany express or implied contract, orwith intent to commit fraud or thatfraud may be committed, commitsforgery.

464: A person is said tomake a false document First Whodishonestly or fraudulently makes,signs, seals or executes a documentor part of a document, or makes anymark denoting the execution of adocument, with the intention ofcausing it to be believed that suchdocument/or part of a document wasmade, signed, sealed or executed byor by the authority of a person by whom or by whose authority heknows that it was not made, signed,sealed or executed, or at a time atwhich he knows that it was notmade, signed, sealed or executed; or The definition of "falsedocument" is part of the definition of"forgery". Both must be readtogether. If so read, the ingredientsof the offence of forgery relevant tothe present enquiry are as follows:(1) fraudulently signing a documentor a part of a document with anintention of causing it to be believedthat such document or part of adocument was signed by another orunder his authority, (2) making ofsuch a document with an intention tocommit fraud or that fraud may becommitted. In the two definitions,both mens rea described in Section464 1.e. "fraudulently and theintention to commit fraud in Section463 have the same meaning. Thisredundancy has perhaps becomenecessary as the element of fraud isnot the ingredient of other intentionsmentioned in Section 463. The ideaof deceit is a necessary ingredient offraud, but it does not exhaust it; anadditional elernent is implicit in theexpression. The scope of thatsomething more is the subject ofmany decisions. We shall considerthat question at a later stage in thelight of the decisions, bearing on thesubject. The second thing to benoticed is that in Section 464 two adverbs,"dishonestly"and"fraudulently are used alternativelyindicating thereby that one excludesthe other. That means they are nottautological and must be givendifferent meanings. Section 24 of thePenal Code defines "dishonestly"thus:

"Whoever does anything withthe intention of causing wrongfulgain to one person or wrongful lossto another person, is said to do thatthing 'dishonestly'.

"Fraudulently" is defined in Section25 thus:

"A person is said to do athing fraudulently if he does thatthing with intent to defraud but nototherwise"

The word "defraud" includesan element of deceit. Deceit is not aningredient of the definition of theword "dishonestly" while it is animportant ingredient of the definitionof the word "fraudulently". Theformer involves a pecuniary oreconomic gain or loss while the latterby construction excludes thatelement. Further, the juxtaposition ofthe two expressions "dishonestly"and "fraudulently" used in thevarious sections of the Codeindicates their close affinity andtherefore the definition of one maygive colour to the other. To illustrate,in the definition of "dishonestly",wrongful gain or wrongful loss is thenecessary Ingredient. Both need not

exist, one would be enough. So too, ifthe expression "fraudulently" were tobe held to involve the element ofinjury to the person or personsdeceived, it would be reasonable toassume that the injury should besomething other than pecuniary oreconomic loss. Though almost alwaysan advantage to one causes loss toanother and vice versa, it need notnecessarily be so. Should we holdthat the concept of "fraud" wouldinclude not only deceit, but alsosome injury to the person deceived,it would be appropriate to hold byanalogy drawn from the definition of"dishonestly that to satisfy thedefinition of "fraudulently" it wouldbe enough if there was a non-economic advantage to the deceiveror a non-economic loss to thedeceived. Both need not co-exist.14. The other decided cases cited atthe Bar accept the necessity for thecombination of a deceit by one andinjury to the other to constitute anact to defraud and therefore, it is notnecessary to multiply citations. Noother decision cited at the Bar throwsany light on the further question,namely, whether an advantagesecured to the deceiver without acorresponding loss to the deceivedwould satisfy the second conditionlaid down by the decisions.

15. To summarize the expression"defraud" involves two elements,namely, deceit and injury to the person deceived. Injury is somethingother than economic loss that is,deprivation of property, whethermovable or immovable, or of money,and it will include any harm whatevercaused to any person in body, mind,reputation or such others. In short, itis a non-economic or non-pecuniaryloss. A benefit or advantage to thedeceiver will almost always causeloss or detriment to the deceived.Even in those rare cases where thereis a benefit or advantage to thedeceiver, but no corresponding lossto the deceived, the second conditionis satisfied.

27. In the case of Mohammed Ibrahim and

Others Vs. State of Bihar and Another reported in 2009 (8) SCC 751, their Lordships havecategorically held in para no 13 to 17, the essentialingredients for an offence under Section 467 and 471of the IPC relating to forgery and cheating whichreads as follows:-

13. The condition precedent for anoffence under Sections 467 and 471is forgery. The condition precedentfor forgery is making a falsedocument (or false electronic recordor part thereof). This case does notrelate to any false electronic record.Therefore, the question is whetherthe first accused, in executing and registering the two sale deedspurporting to sell a property (even ifit is assumed that it did not belong tohim), can be said to have made andexecuted false documents, incollusion with the other accused.14. An analysis of Section 464 of the Penal Code shows that it dividesfalsedocumentsintothreecategories:

(1). The first is where a persondishonestly or fraudulently makes orexecutes a document with theintention of causing it to be believedthat such document was made orexecuted by some other person, orby the authority of some otherperson, by whom or by whoseauthority he knows it was not madeor executed.

(2). The second is where a persondishonestly or fraudulently, bycancellation or otherwise, alters adocument in any material part,without lawful authority, after it hasbeen made or executed by eitherhimself or any other person.

(3). The third is where a persondishonestly or fraudulently causesany person to sign, execute or alter adocument knowing that such personcould not by reason of (a)unsoundness of mind; or (b)intoxication; or (c) deceptionpractised upon him, know thecontents of the document or thenature of the alteration.

In short, a person is said to havemade a “false document”, if (i) hemade or executed a documentclaiming to be someone else orauthorised by someone else; or (ii) healtered or tampered a document; or(iii) he obtained a document bypractising deception, or from aperson not in control of his senses.

15. The sale deeds executed by thefirst appellant, clearly and obviouslydo not fall under the second andthirdcategoriesof“falsedocuments”. It therefore remains tobe seen whether the claim of thecomplainant that the execution ofsale deeds by the first accused, whowas in no way connected with theland, amounted to committingforgery of the documents with theintention of taking possession of thecomplainant's land (and that Accused2 to 5 as the purchaser, witness,scribe and stamp vendor, colludedwith the first accused in executionand registration of the said saledeeds) would bring the case underthe first category.

16. There is a fundamentaldifference between a personexecuting a sale deed claiming thatthe property conveyed is hisproperty, and a person executing asale deed by impersonating theowner or falsely claiming to beauthorised or empowered by theowner, to execute the deed onowner's behalf. When a person executes a document conveying aproperty describing it as his, thereare two possibilities. The first is thathe bona fide believes that theproperty actually belongs to him. Thesecond is that he may be dishonestlyor fraudulently claiming it to be hiseven though he knows that it is nothis property. But to fall under firstcategory of “false documents”, it isnot sufficient that a document hasbeen made or executed dishonestlyor fraudulently. There is a furtherrequirement that it should have beenmade with the intention of causing itto be believed that such documentwas made or executed by, or by theauthority of a person, by whom or bywhose authority he knows that it wasnot made or executed.

17. When a document is executed bya person claiming a property which isnot his, he is not claiming that he issomeone else nor is he claiming thathe is authorised by someone else.Therefore, execution of suchdocument (purporting to conveysome property of which he is not theowner) is not execution of a falsedocument as defined under Section464 of the Code. If what is executedis not a false document, there is noforgery. If there is no forgery, thenneither Section 467 nor Section 471of the Code are attracted.

28. In the case of Mariam Fasihuddin Vs.State by Adugodi Police Station reported in AIR2024 Supreme Court 801, their Lordships haveheld at Para Nos. 10, 11, 12, 13, 16, 18, 19, 21, 22,23, and 24, which reads as follows:-

10. Section 420 IPC provides thatwhoever cheats and therebydishonestly induces the persondeceived to deliver any property toany person, or to make, alter ordestroy, the whole or any part ofvaluable security, or anything, whichis signed or sealed, and which iscapable of being converted into avaluable security, shall be liable to bepunished for a term which mayextend to seven years and shall alsobe liable to fine. Further, Section 415IPC distinctly defines the term'cheating'.

The provision elucidates thatan act marked by fraudulent ordishonestintentionswillbecategorised as 'cheating' if it isintended to induce the person sodeceived to deliver any property toany person, or to consent that anyperson shall retain any property,causing damage or harm to thatperson.

11. It is thus paramount that in orderto attract the provisions of Section420 IPC, the prosecution has to notonly prove that the accused hascheated someone but also that by doing so, he has dishonestly inducedthe person who is cheated to deliverproperty.

12. It is well known that everydeceitful act is not unlawful, just asnot every unlawful act_is deceitful.Some acts may be termed both asunlawful as well as deceitful, andsuch acts alone will fall within thepurview of Section 420 IPC. It mustalso be understood that a statementof fact is deemed 'deceitful' when it isfalse, and is knowingly or recklesslymade with the intent that it shall beacted upon by another person,resultingindamageorloss.2'Cheating' therefore, generallyinvolves a preceding deceitful actthat dishonestly induces a person todeliver any property or any part of avaluable security, prompting theinduced person to undertake the saidact, which they would not have donebut for the inducement.

13. The term 'property' employed inSection 420 IPC has a well definedconnotation. Every species ofvaluable right or interest that issubject to ownership and has anexchangeable value - is ordinarilyunderstood as 'property'. It alsodescribes one's exclusive right topossess, use and dispose of a thing.The IPC itself defines the term'moveable property' as, "intended toinclude corporeal property of everydescription, except land and thingsattached to the earth or permanently fastened to anything which isattached to the earth." Whereasimmoveable property is generallyunderstood to mean land, benefitsarising out of land and thingsattached or permanently fastened tothe earth.

16. The crux of Respondent No. 2'sallegations is that the Appellantspurportedly forged his signature onthe passport application submitted toobtain the minor child's passport.Assuming the allegation to beaccurate, it would undoubtedlyconstitute an unlawful act. However,as set out earlier, it is crucial tounderscore that not every unlawfulact automatically qualifies as'deceitful'. In the peculiar facts andcircumstances of this case, theAppellant-wife seems to havebreached the notion of mutualmarital trust and unauthorizedlyprojected Respondent No. 2's consentin obtaining the passport for theirminor child. It, however, remains aquestion as to how such an act canbe labelled as 'deceitful'. Themotivations prompting either of theAppellants to procure a passport forthe minor child were not rooted indeceit. Furthermore, the grant ofpassport to the minor child did notconfer any benefit upon the Appellantwife, nor did it result in any loss ordamage to Respondent No. 2. In thesame vein, Appellant No. 2, being thefather of the Appellant-wife and assisting in securing the passport forthe child, derived no direct or indirectbenefit from this action.

18. Respondent No. 2, the biologicalfather and natural guardian of theminor child, is positioned as such inrelation to the grant of a passport tohis son. This grant can be bestcharacterised as the minor child'sacquisition of property. Since the gainby the minor child is not at the cost ofany loss, damage or injury toRespondent No. 2, both thefundamental elements of 'deceit' and'damage or injury', requisite forconstituting the offence of cheatingare conspicuously absent in thisfactual scenario.

19. Conversely, can the Appellant-wife, being the natural mother of thechild and a natural guardian, beaccused of acting 'dishonestly' whenapplying for the passport of her minorchild? A passport, is an authorisedinstrument which enables a person totravel outside the country of hisorigin. In this case, the passport wasadmittedly issued in favour of theminor child. Whether it was stolen byRespondent No. 2 or misplaced, iswholly immaterial to the presentdiscussion. The grant of passport tothe minor child is nothing but a rightconferred upon him by statute. Thepassport is meant to facilitate him toaccompany his mother to London andstay with his father. However, there isnot even a whisper of allegation or suggestion that the passport wasobtained to the detriment of thechild's wellbeing. The underlyingintent of obtaining the passport was,ironically, essential for the Appellant-wife and minor child to live togetherwith Respondent No. 2, on whoseinstructions the passport was statedlyobtained. Conversely, it is the actionsof Respondent No. 2 that haveseemingly deprived the minor child ofhis right to seek the care andcompany of his father, as thepassport was allegedly taken away byRespondent No. 2 in a clandestinemanner.

21. The offence of 'forgery' underSection 468 IPC postulates thatwhoever commits forgery, intendingthat the document or electronicdocument forged, shall be used forthe purpose of cheating, shall bepunished with imprisonment of eitherdescription for a term which mayextend to seven years, and shall alsobe liable to fine. Whereas Section 471IPC states that whoever fraudulentlyor dishonestly uses as genuine anydocuments which he knows or hasreason to believe it to be a forgeddocument, shall be punished in thesame manner as if he had forgedsuch document.

22. there are two primarycomponents that need to be fulfilledin order to establish the offence of‘forgery’, namely: (I) that the accusedhas fabricated an instrument and, and (ii) it was done with the intentionthat the forged document would beused for the purpose of cheating.Simply, put the offence of forgeryrequires the preparation of a falsedocument with the dishonestintention of causing damage or injury.

23. The offences of 'forgery' and'cheating' intersect and converge, asthe act of forgery is committed withthe intent to deceive or cheat anindividual.Havingextensivelyaddressed the aspect of dishonestintent in the context of 'cheating'under Section 420 IPC, it standsestablished that no dishonest intentcan be made out against theAppellants. Our focus therefore willnow be confined, for the sake ofbrevity, to the first element, i.e., thepreparation of a false document. Thedetermination of whether theAppellantspreparedafalsedocument, by forging Respondent No.2's signature, however, cannot beeven prima facie ascertained at thisjuncture. Considering the primaryingredient of dishonest intention itselfcould not be established against theAppellants, the offence of forgery too,has no legs to stand. It is alsosignificant to highlight that theproceedings as against the concernedPassport Officer, who was implicatedas para 26. Accused No. 4, alreadystand quashed. In such like situationand coupled with the nature of allegations, we are unable toappreciate as to why the Appellantsbe subjected to the ordeal of trial.24. That apart, there are glaringprocedural irregularities that havebeen overlooked by the TrialMagistrate,whichwarrantsexamination.Itisextremelyimportant to delve into theseimproprietiessincethesupplementary chargesheet filed bythe investigating authority includedthe offence of 'forgery' underSections 468 and 471 IPC.

Questions overlooked by the lowercourts:

29. The above citations squarely apply to thefacts and circumstances of the case. As per thedefinition of forgery under Section 463, whoevermakes a false document or any part of the documentwith an intention to cause damage or injury to thepublic or any person is said to have committedforgery.

30. In the present case, the allegation againstthe appellant that is that he created a false bankaccount in the name of Shiv Nath, however, the saidaccount does not disclose any injury or damagecaused to the LIC amounts. It is evident from the

evidence of P.W. 58 that only Rs. 1202/- wasdeposited on three occasions by one person namedShiv Nath and Rs. 1000/- was withdrawn, except thisevidence, there is no incriminating material onrecord to connect appellant with the crime. Furtherthere is no evidence on record to prove that theappellant is one Vidya Sharma and acted or openedthe account in the name of Shiv Nath. Therefore, theoffence of forgery is not attracted.

31. As per the evidence of P.W. 56, the bankaccount forms, of Shiv Nath was sent to GovernmentExaminer of Questioned Documents for comparisonof the admitted and disputed signatures. However,the evidence of the official of Government Examinerof Questioned Documents / P.W. 54 disclose that thesignature of Shiv Nath tallied with that of the primeaccused Raj Deo Sharma and not with that of theappellant. Therefore, the prosecution has miserablyfailed to prove that Vidya Nath Sharma signed andopened the account in the name of Shiv Nath, as theforensic and Government Examiner of QuestionedDocuments report confirms that the signature of Shiv Nath matches with that of Raj Deo Sharma, not withVidya Nath Sharma.

32. Section 420 of IPC envisages cheatingdishonestly, inducing delivery of property. In thepresent case, nothing is on record that Vidhya NathSharma/ appellant has induced any person orreceived property dishonestly, either for himself orany person or altered or destroyed valuable security.In the absence of any material, the trial Court oughtnot to have convicted the appellant for the offencespunishable under Sections 120B, 420 r/w 34 and 468of IPC. Furthermore, while the appellant was notconvicted for the offence punishable under Section419 of IPC, he was nonetheless sentenced torigorous imprisonment for a period of two years forthe said offence which is bad in the eye of law andlegally not sustainable.

33. Admittedly, the second InvestigatingOfficer in this case was also not examined and noneof the witnesses have identified the appellant aseither Shiv Nath or of Vidya Nath Sharma to connecthim with that of the crime.

34. In view of the aforesaid discussion, this Court is of the considerable view that theprosecution has miserably failed to prove the guilt ofthe accused for the offences punishable underSections 120B, 420, r/w 34 of IPC 419 and 468 ofIPC. Therefore, the judgment of conviction andsentence passed by Special Judge CBI, South Bihar,Patna in Special Case No. 17/81 of R.C. No. 40 of1981 is liable to be set aside, and the appellant isacquitted of the aforesaid offences.

35. The record reveals that the appellant wasenlarged on bail by the Court vide order dated19.06.2003. Hence, the bail bonds of the appellantshall stand cancelled.

36. In result the appeal is allowed.

Amandeep/Manish/-AFR/NAFRNAFRCAV DATEN/AUploading Date12.02.2025Transmission Date (G. Anupama Chakravarthy, J)