PETITIONER: JIBRIAL DIWAN Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 24/07/1997 BENCH: M.M. PUNCHHI, K. VENKATASWAMI ACT: HEADNOTE: JUDGMENT:
O R D E R
Having heard learned counsel for the appellant, we
called upon Mr. D.M. Nargolkar, learned counsel for the
state of maharashtra requiring him make submission to
support the judgment under appeal. He candidly admitted that
he was unable to do so we appreciate the fair stance he has
adopted. In support of the same, we record our reasons.
Shri Azhar Hussain, PW 2 was a Minister at the relevant
time in the state of Maharashtra. He had planned a cultural
show whereat some artists were invited. The case of the
prosecution is that two letter Exh. 28 and Exh. 29 were
prepared on the letter head of the Minister, whereupon
invitations were written to invite Raja Murad, and Javed
Khan PWs. These letters were allegedly forged for these did
not bear the signature of the Minister. The show was held on
the day scheduled. The show was held on the day scheduled.
The invites came on the basis of those forged letters,
Later, a controversy was raised. the matter was investigated
by the CBI. Charges were laid against the appellant as also
one Patel, accused No. 2. The second accused stands
acquitted by the trial court. His acquittal has been
maintained by the high Court. The allegation against the
acquitted accused was that he had forged those letters. That
part of the prosecution case on account of the acquittal of
the second accused has become sealed. The role of the
appellant was that he had delivered those two forged letters
to the recipients. For that act, even though he was
acquitted by the trial court, the High Court has convicted
him for offence under Section 417, Section 471 read with
Section 465 IPC and awarded him sentences as disclosed in
the judgment under appeal.
It bears repetition that the appellant was not the
forgerer of those documents. Section 471 enjoins that
whoever fraudulently or dishonestly uses as genuine any
document which he knows or has reason to believe to be a
forged document, shall be punished in the same manner as if
he had forged such document. Section 465 provides that
whoever commits forgery;, shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both. Now the
words ‘dishonestly’ has been defined to mean that whoever
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’. The word ‘fraudulently’ has been
defined to mean that a person is said to d a thing
fraudulently if he does that thing with intent to defraud
but not otherwise. This court in Dr. S. Dutt state of U.P
AIR 1966 SC 523 has explained the words intent to defraud’
as being not synonymous with words `intent to deceive’. It
requires some action resulting in a disadvantage which but
for the deception the person defrauded would have avoided.
here by the delivery of forged letters, there is neither any
wrongful gain to anyone nor any wrongful loss to another.
The act of the appellant could not thus be termed to have
been done dishonestly. Likewise the appellant cannot be said
to have any intention to defraud because his action resulted
in no disadvantage to any one which but for the deception
the person defrauded would have acted otherwise. The basic
ingredients of the act done `dishonestly’ or `fraudulently’
being missing, the charge under Section 471 read with 465
IPC was totally misplaced and the High Court fell into an
error in convicting the appellant on those charges.
So far as the conviction under Section 417 is
concerned, the High Court has ignored the definition of
`cheating’ provided in Section 415 IPC. The High Court has
gone to hold that the accused cannot be held guilty for
offence under Section 420 IPC because there was no cheating
of any valuable or property involved in the act or omission
of the appellant. It has just been concluded therefrom that
the appellant would, therefore, be guilty for offence under
Section 417 IPC. What is deducible is that the High Court
perhaps thought that the act or omission of the appellant
was not covered in the first part of offence of `cheating’
as defined in Section 415 IPC. If so the act or omission of
the accused could not in any event fall in the later part
because we fail to see how the act or omission of the
appellant caused or was likely to cause harm to any person
in body mind or repetition. Thus the conviction of the
appellant or offence under Section 417 was also totally out
of place and the verdict on that score deserve reversal.
For the foregoing reasons, ewe unhesitatingly allow
this appeal, set aside the impugned order of the High Court
and acquit the appellant of all charges. Before concluding
the matter, we compliment Mr. Nargolkar for being candid in
conceding the acquittal of the appellant at the outset for
which we have added the above justification.
