Diwan Vs. State of Maharashtra  INSC 616 (24 July 1997)
PUNCHHI, K. VENKATASWAMI
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.
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
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.
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.
by the delivery of forged letters, there is neither any wrongful gain to anyone
nor any wrongful loss to another.
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.
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.
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.