JUDGMENT
L. Rath, J.
1. All the three petitioners stand convicted Under Sections 419/34 and 468/34, IPC, and sentenced to R. I. for six months as also to pay a fine of Rs. 500/- each, in default to undergo S. I. for one month on each count with direction that the sentences would run concurrently. The conviction and sentence were also confirmed in appeal.
2. The opposite party, complainant filed the complaint on 17-1-1983 with allegations that the petitioners in Criminal Revision Nos. 678/88 and 18/91 approached .. him on 20-1-1930 with the petitioner in Criminal Revision No, 18/91 Narayan Prasad Nayak impersonating himself as one Ramani Ranjan Patel, who is the petitioner in Criminal Revision No. 711/88, and gave out Ramani Ranjan had purchased certain trees from some person for the felling and selling of which he was short of funds for which he desired to have the opposite party as a working partner. The petitioner in Criminal Revision No. 678/88, Gajapati Panda, was known to the opposite party because of which he believed Narayan and a special power of attorney was executed by Narayan holding himself out as Ramani Ranjan and denti- fied to be so by Gajapati. Because of the special power-of-attorney the opposite party deposited a sum of Rs. 3,000/-, with the Forest authorities as royalty for the trees and obtained the receipt therefor. Later on he took steos to fell the trees and dispose them of and for the purpose contacted PW 6, a saw mill owner, and collected Rs. 4,000/- from him as advance. In the process he came to know that Narayan had impersonated himself to be Ramani Ranjan who was another per son. Then Ramani Ranjan assured him to stand by and own the power of attorney and to work out the trees on partnership basis with fifty percent profit to each and also executed another special power of attorney in favour of the opp. Party. Because of the second power of attorney the opposite party parted with the money receipt of Rs. 3,000/- and waited to receive the T. T. permit but Ramani Ranjan did not give the permit to him and instead disposed of the timber. Earlier, the opposite party had spent Rs. 5,000/- to fell the trees and process those as timber. Thus while he had incurred a total expenditure of Rs. 8,000/- and had contacted with PW 6 to sell the timber at a much higher price, yet without earning any profit, because of the deception practised, he had to return Rs. 4,000/- to him. He hence issued a registered advocate’s notice to all the petitioners on 13-8-1982 to make good his loss but since no reparation was made, he filed the complaint on 17-3-1983. Both the learned Courts below relied upon the evidence of the opposite party examined as PW5 as credible and supported by PW6 and other witnesses, believed the fact of impersonation by Narayan as Ramani Ranjan and that such impersonation had been believed by the opposite party because of the identification by Gajapati who was known to him, and further holding that Ramani Ranjan having ratified the power of attorney executed by Narayan had a part to play in the impersonation, convicted the petitioners. The findings, the convictions and the sentences were confirmed by the appellate Court.
3. A persual of the judgments of both the Courts show Ramani Ranjan to have been held guilty for having ratified the power of attorney executed by Marayan who was his brother-in-law as also for his subsequent conduct of taking the receipt of Rs. 3,000/-from the opposite- party but not giving his the T. T. permit and instead to have disposed of the timber. The fact remains that Ramani Ranjan executed a fresh power of attorney in favour of the opposite party. Section 416, IPC defines cheating by personation saying that when a person cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. he is said to be cheating by personation. The definition requires not only impersonat- ing or getting somebody impersonated to be the ingredient of the offence but also that there must have been a cheating taking the help of such impersonation. A mere impersonation is not sufficient to bring home the charge. To prove the charge, it is the further case of the opposite party that because of the impersonation he was made to part with Rs. 3,000/-. The question is whether such parting with the money was obtained by the petitioners dishonestly as defined in Section 24 of the Penal Code. Such mens tea seems to be absent as the opposite party after paying Rs. 3,000/-towards royalty approached Ramani Ranjan who unhesitatingly admitted the fact that the transaction had been effected at his instance and that he was responsible for it and also further offered, as opposite party himself acknowledged fifty-fifty partnership with him. There hence was not any mens tea to dishonestly make the . complainant part with the money on the basis of the impersonation. That subsequently a second power of attorney was also executed on the basis of which the complainant parted with the money receipt and that Ramani Ranjan went back upon his promise and did not honour his commitment can at best give rise to a civil liability. Sush conclusion is fortified by the fact that the complainant issued a registered advocate’s notice on 13-8-1982 for being paid his dues, but that having not been paid he again waited till June, 1983 to file the complaint. If the complainant was conscious of the fact that he had been criminally cheated due to impersonation, the cause of action arose on 20-1-1980 when the first power of attorney was executed or even when the second power of attorney was executed. That the complainant did not file the complaint then would go to show that he accepted the arrangement as it is and entered into a further transaction with Ramani Ranjan but only when his business adventure failed, he thought of filing the complaint nearly three years after.
4. Hence even though it is a fact, as was found by both the Courts below, that Narayan had impersonated himself as Ramani Ranjan and that such impersonation was believed by the complainant due to the representation made by Gajpati who was earlier known to him, yet the charge Under Section 419, IPC cannot be said to have been brought home against any of the petitioners. There is no discussion in the judgments of the Courts below as to how the petitioners are guilty of offence Under Section 468, IPC. That section relates to commission of forgory where the forged document is intended,to be used for the purpose of cheating. ‘Forgery’ as defined Under Section 463, IPC relates to making any false document with intent to cause damage or injury inter alia to a person or to support any claim or title, etc. Making of a false document is defined Under Section 464, IPC. No part of the prosecution case falls Under Section 468, IPC as satisfying the ingredients of Sections 468 and 464, IPC since therein no cheating is involved and mere execution of document by Narayan would not invite the charge Under Section 468, IPC as the agreement cannot be said to have been used for the purpose of cheating.
5. In that view of the matter, the conviction and sentence of the petitioners are not sustainable in law and hence are quashed. The revisions are allowed.