@JUDGMENTTAG-ORDER
Rakesh Saksena, J.@mdashApplicant has filed this revision against the order dated 24.3.2007, passed by Additional Sessions Judge (Fast Track Court), Amarpatan, District Satna, in Criminal Appeal No. 35/07, affirming the judgment and order dated 3.7.2006, passed by Judicial Magistrate First Class, Amarpatan, in Criminal Case No. 384/06, convicting the applicant u/s 420, 467 and 468 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years with fine of Rs. 1000/-, rigorous imprisonment for two years with fine of Rs. 2000/- and rigorous imprisonment for with fine of Rs. 2000/-, on each count respectively. Sentences directed to run consecutively.
2. In short, the prosecution case is that applicant/accused since before 3.2.1999 dishonestly induced and deceived people of village Dihiya Kala viz Vishwanath Kol, Surjdeen, Bhagwandeen, Ram Sushil, Ram Pratap, Ramhet, Dayali, Samaylal, Pachai, Samay Lal, Ram Khelawan, Balli, Parasi, Chhotelal, Ram Krapal, Balmik, Ganpat, Gorelal, Chavilal and Kanhai to deliver money to him on the assurance that he would return them by making it double. On their demanding back their money, he issued cheques to them, which could not be encashed. He also did not repay their money. Some of these persons, when went to Bank, they were informed that there was no money in the account of accused. A report was submitted to police by 21 persons. Police registered the case u/s 420 and 467 of Indian Penal Code finding that applicant had cheated the complainants by dishonestly inducing them to deliver money. During investigation, it was found that there was no money in the bank account of applicant.
3. After investigation, a charge sheet was filed before the Court.
4. Learned Magistrate framed the charge u/s 420, 467 and 468 of Indian Penal Code.
5. Applicant abjured the guilt and claimed to be tried.
6. During trial, prosecution examined 23 witnesses and produced 25 documents including the cheques issued by applicant to complainants.
7. Learned Magistrate, relying upon the evidence adduced by the prosecution, convicted the applicant/accused and sentenced him as mentioned above.
8. Aggrieved applicant preferred appeal before the Court of Sessions. His appeal was dismissed by Additional Sessions Judge, Satna.
9. Learned Counsel for the applicant submits that the evidence adduced by the prosecution is not sufficient for bringing home the charge u/s 420 as well as under Sections 467 and 468 IPC. He submits that on the basis of adduced evidence, it cannot be held that the cheques, alleged to have been issued by the applicant, were forged or that he had forged any document. Therefore, the conviction of applicant for the offence u/s 467 and 468 of Indian Penal Code is illegal and deserves to be set aside. Counsel further submits that the charge framed by the Magistrate was defective on account of not giving particulars and the specific dates of each transaction with respect to particular complainant. Because no specific period of commission of offence was mentioned, therefore, he submits, that conviction of the applicant u/s 420 of IPC is also liable to be set aside.
10. Per contra, learned Counsel for the State submits that there is overwhelming evidence on record. All the witnesses who are said to have been cheated by the applicant have been examined before the court and they have categorically deposed that applicant had dishonestly induced them to deliver money to him on assurance that he will return their money with interest more than which Banks give, but ultimately no money was returned to them and it was found that there was no money in the account of the applicant in the Bank. He had criminal intent of cheating from the very beginning when he had induced complainants to deliver money to him.
11. On perusal of evidence of Ram Sushil (PW-1), it is found that he has categorically stated that accused had demanded money from him on the pretext of investing it in the business of Hay. He had given him Rs. 20,000/-. He had assured that he would get back his money from Allahabad Bank, where his money was deposited. He had issued him a cheque on 22nd February 2001 (Ex. P/1) for Rs. 35,000/-. When he went to Bank, he was informed by the Bank officials that there was no money in the account of accused. He admitted in the cross-examination that he had not submitted cheque in the Bank, but when he had gone to submit it, the Bank officials had informed him that there was no money in the account of accused. He had, therefore, given a complaint to local MLA. Ram Krapal (PW-2) stated that accused had obtained Rs. 25,000/-from him on the pretext that he would return the same after three months. Accused had given him a cheque of Allahabad Bank, but he came to know that there was no money in the Bank account of applicant. Similarly Smt. Jhalli (PW-3) stated that accused had obtained Rs. 20,000/-from her and had given a cheque of Rs. 24,000/ to her. When she went to Bank to encash it, there was no money in the Bank account of accused. She had complained to police. She had put her thumb impression on the complaint (Ex. P/2). Similarly, Ram Pratap Mishra (PW-4), Kandhai (PW-5), Ram Khelawan (PW-6), Vishwanath (PW-7), Balmik (PW-8), Lakhani (PW-9), Samay Lal (PW-10), Padasari Kol (PW-11), Bhagwandeen Yadav (PW-12), Ganpat (PW-13), Samay Lal, s/o Pachai (PW-14), Arjun Prasad Soni (PW-15), Gorelal (PW-16), Chhotelal (PW-17), Surijdeen (PW-18), Vrandawan (PW-20) and Pachai Kol (PW-21) testified that applicant had obtained money from them assuring that he would return money giving more interest on the money, but the cheques, given by the accused to them, were not encashed and the money was not returned to them.
12. Section Pal Sethi (PW-22), Senior Manger, Allahabad Bank, Ram Nagar, testified that he was Senior Manager in the Bank since 15th September 2003. He stated that there was an account of accused in the Bank which was Savings Account No. 1996. He deposed that on 10.2.1994 there was only balance of Rs. 17.00 in the account of accused. On 13.10.1998 the balance was Rs. 296/-only. On 26.6.1996 Rs. 7108/-were deposited, but on 6. 7.1999, Rs. 7150/-were withdrawn. He gave description of various cheques issue by the accused. He stated that there was no sufficient money in the account of accused for clearing the cheques. It is apparent that the testimony of prosecution witnesses, who had been deprived of their money on false assurance made by the accused, is corroborated by the testimony of S. Pal Sethi (PW-22). Kamlesh Prasad Pandey (PW-23), Branch Manager, Shahdol, also testified that accused Anil had opened an account in Shahdol Kshetriya Gramin Bank, Branch Papaid, Shahdol. The cheque book was issued to him. Only Rs. 500/-were deposited in the account of accused. Total balance in the account was Rs. 575/-.
13. On due consideration of the above evidence, it is established that applicant had dishonestly induced the complainants/witnesses to deliver money to him, which in total comes about to Rs. 6,81,090/-, with the intention to cause wrongful loss to them. Thus, it is clearly established that applicant committed offence of cheating punishable u/s 420 of Indian Penal Code.
14. On going through the impugned judgments of the courts below, I do not find any error or illegality in the appreciation of evidence done by them and holding accused guilty for the said offence. Accordingly, the finding of conviction of the accused u/s 420 of Indian Penal Code is affirmed.
15. So far as the contention made by the learned Counsel for the applicant that trial Court committed error in framing charge and that the charge was defective on account of not giving particulars and the specific dates of each transaction with respect to particular complainant, I am of the opinion that it did not result in any prejudice to accused nor it occasioned failure of justice to him. As such, merely on that ground the finding of conviction recorded by the Court of Magistrate, cannot be held to be invalid. In this regard, provisions of Section 464 of Code of Criminal Procedure are relevant, which are reproduced hereunder:
464. Effect of omission to frame, or absence of, or error in, charge.-(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity, in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
Thus, the aforesaid argument advanced by the learned Counsel for the applicant is not acceptable.
16. So far as the conviction of accused u/s 467 and 468 of Indian Penal Code is concerned, for bringing home the charge of forgery, it is necessary that a false document or record should have been made with intent to cause damage or injury to any person or to cause any person damage in person or to part property with intent to commit fraud. The definition of offence of forgery is provided u/s 463 of Indian Penal Code, which reads as under:
463. Forgery.-[whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
In Section 464 of the Indian Penal Code, making of false document has been defined. Section 464 reads as under:
464. Making a false document.-[A person is said to make a false document of false electronic record- First-who dishonestly or fraudulently
(a) Makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or
Secondly-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or
Thirdly-who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or tht by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]
17. On perusal of the prosecution evidence and the accusation in the present case, it is abundantly clear that the allegation is that accused had dishonestly obtained money from the complainants and had issued cheques to them which were not encahsed. There is no allegation that the said cheques were false or fabricated. There is no dispute that the cheques bore the signatures of applicant. Thus, it cannot be held that the aforesaid cheques were forged with intent to defraud the complainants. Since the necessary ingredient of making false document has not been established by the prosecution, the conviction of accused/applicant for the offence u/s 467 and 468 of Indian Penal Code is not warranted and deserves to be set aside.
18. In the result, this revision is partly allowed. The conviction and sentence awarded to applicant for the offence u/s 420 of Indian Penal Code, by the courts below, is affirmed. However, conviction and sentences awarded to applicant under Sections 467 and 468 of Indian Penal Code are set aside. The amount of fine, if deposited, on conviction under Sections 467 and 468 of Indian Penal Code, shall be refunded to applicant.
