JUDGMENT 1. - This appeal is directed by four accused-appellants against the judgment of learned Sessions Judge, Jaipur District, Jaipur, dated 18.9.1980 convicting and sentencing the accused-appellant as under: (i) U/S 120(b) IPC six month's rigorous imprisonment. (ii) U/S 420 IPC two years R.I. and a fine of Rs. 50/-, and in default thereof further R.I. for 7 days. (iii) U/Ss. 467 & 468 I.P.C. two year's R.I. and a fine of Rs. 50/- and in default thereof further R.I. for 7 days. (iv) U/S 471 IPC two year's R.I. and a fine of Rs. 50/- and in default thereof further R.I. for 7 days. 2. Brief facts giving rise to this case are that an F.I.R. Ex. P. 70 numbered 16/77 was taken down by Superintendent of Police, C.B.I. (S.P.E.), Jaipur, Shri B.P. Bhatnagar wherein it was alleged that on receipt of a source information a preliminary enquiry No. 22/76 was conducted in the office and the facts which were collected during the preliminary enquiry, were verified and it transpired from them that Serva Shri S.D. Gangwani Stores Officer and K. Lallan senior A.S.K. and J.S.D. Raisinghani Accountant H.M.T., Unit 6, Ajmer, while working therein entered into a criminal conspiracy with one Motilal owner and driver of vehicle R.J.X. 1121 to cheat H.M.T. Unit 6 by way of claiming false L.T.C. on the basis of fake documents. In pursuance of the said criminal conspiracy it was alleged that Serva Shri Gangwani, Lallan and Raisinghani obtained L.T.C. advance of Rs. 2828/-, 1418/- and 3181/- respectively during the year 1975 under pretext to undertake journey from Ajmer to Kanyakumari and back in between 16.10.75 to 4.11.75 along with their family members. It was alleged that infact they never went to Kanyakumari and in conspiracy with the driver prepared fake bills and cheated the department. On these facts case under Ss. 120B read with S. 420, 420 IPC and 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act, 1947, was registered and investigation was handed over to one Inspector Sunderlal. 3. During the course of investigation accused S. D. Gangwani, Stores Officer was tendered pardon and made approver. After investigation a charge-sheet was submitted against four persons, namely, C.H. Logani, J.S.D. Rai Singhani, N. K. Lallan and Govind Jamtani. 3. During the course of investigation accused S. D. Gangwani, Stores Officer was tendered pardon and made approver. After investigation a charge-sheet was submitted against four persons, namely, C.H. Logani, J.S.D. Rai Singhani, N. K. Lallan and Govind Jamtani. It was alleged in the charge sheet that all these persons were entitled for L.T.C. (leave travel concession) to whom time onward and to any place in India once in a block of four years. According to this scheme employees were to pay fare of first four hundred kms. on outward journey and last 400 kms. On inward journey from their own pocket and rest is to be paid by the department. The aforesaid four accused, it was alleged, declared that they intended to avail L.T.C. facility Ex Ajmer to Kanyakumari and back and obtained leave from 20.10.75 to 4.11.75 and Gangawani, Rai Singhani and Lallan obtained advance of Rs. 2200/-, 2800/- and 1100/- respectively. Logani and Jhamtani however, did not take advances. All the five accused hired a mini bus RJX 1121 belonging to Motilal and undertook journey to various places. They first visited Jaipur, then Delhi and Amritsar. Jammu, Srinagar, Gulmarg, Hardwar, Agra, Indore, Aurangabad, Poone, Bombay and Ahmedabad. They however, did not visit Kanyakumari. But after their return they submitted their respective claims, they entered into criminal conspiracy, cheated the administration by claiming L.T.C. bills showing false visit to Kanyakumari for the purpose of causing pecuniary advantage to themselves and causing loss to H.M.T. by charging more amount than they were entitled. According to the charge-sheet they were only entitled to charge from Ajmer to Gulmarg and back. They however submitted the claims showing travel to Kanyakumari and thus also made false documents. S D. Gangwani was made an approver and Shri Motilal a witness and charge-sheet was submitted against remaining four, namely, C.H. Logani, J.S.D. Rai Singhani, N. K. Lalla and Govind Jamtani for offence under Ss. 120B read with S. 420, 468/471 IPC before Addl. Chief Judicial Magistrate, C.B.I., Jaipur District, Jaipur. He committed the accused to Sessions for trial. 4. The learned Sessions Judge, Jaipur District, Jaipur framed charge under the aforesaid sections to which the accused-appellant denied and claimed to be tried. The prosecution in support of its case examined 14 witnesses and exhibited 82 documents. The accused examined one witness in defence. Chief Judicial Magistrate, C.B.I., Jaipur District, Jaipur. He committed the accused to Sessions for trial. 4. The learned Sessions Judge, Jaipur District, Jaipur framed charge under the aforesaid sections to which the accused-appellant denied and claimed to be tried. The prosecution in support of its case examined 14 witnesses and exhibited 82 documents. The accused examined one witness in defence. The case of the accused persons from the very beginning was that they had planned to go to Kanyakumari and also wanted to visit Kashmir so they first went to Kashmir and from there they came to Agra via Hardwar and from there the driver insisted on going to Indore as he wanted to arrange money from there. From Indore they went to Aurangabad and then to Pune where a conflict took place between them and the driver and the onward journey to Kanyakumari had to be abandoned. According to the accused driver took some of his relations from Indore and that created problem inasmuch he had taken circuitous roate and when protected he picked up quarrel and refused to go further. They drew the bill in consultation with the officers as the amount was to be paid to the driver and they had travelled much more than the minimum distance required for travelling to Kanyakumari. 5. The learned Judge, however, found the accused guilty of offence under Ss. 120B, 420, 468, 467 and 471 IPC. It is against this conviction and sentence that the present appeal has been preferred. 6. Learned counsel for the accused-appellants submits that the entire basis of the prosecution case is the conspiracy of the accused persons to cheat the Hindustan Machine Tools but there is not an iota of evidence on record to show that there was no meeting of the minds for doing any act muchless of cheating. The submission of the learned counsel is that conspiracy should always precede the offence as even ingredient of cheating is an intention to defraud at the very outset, while the circumstances of this case are that according to prosecution itself offence has preceded the conspiracy which is never possible. It is submitted that according to the F.I.R. the case of the prosecution was that there was conspiracy between five persons and two of them were PW. 1 S.D. Gangwani and PW. It is submitted that according to the F.I.R. the case of the prosecution was that there was conspiracy between five persons and two of them were PW. 1 S.D. Gangwani and PW. 13 Motilal, but the case after investigation was inclusion of two other accused, namely, C.H. Logani and Govind Jamtani and the prosecution has made S. D. Gangwani as an approver. It is submitted that there is no question of falsification of the documents in the case and forgery inasmuch as there is not a single document which might not have been admitted by any of the accused. It is submitted that the trial court did not consider the case in true perspective and has failed to appreciate that present is not a case where the facts are disputed and it was on facts that adjudication had to be done where there is cheating, forgery or not. But present is the case which is absolutely based on legal aspect of the matters and to consider as to whether any mens rea exists in the case. The submission of the learned counsel is that criminal intention is the grave man of the charge relating to cheating and falsification of the document and if there is neither a dishonest intention nor wrongful loss or wrongful gain to anyone no offence worth the name can be said to have been made out. It is submitted the entire case is based on the statements of three witnesses, namely, PW. 1 S. D. Gangwani approver, PW. 12 Gauri Shanker and PW. 13 Motilal. It is also submitted that in the absence of any rules concerning L.T.C. it could not be said that the accused persons have acted counter to particular rules in order to defraud H.M.T. It is further submitted that it is a case of condonation by the department and abatement of offence if there was any such authorities under which the appellants were working, have not till date objected or complained about the action of the appellants, though it had been brought to the notice even prior to submission of the final bills. It is also submitted even after registration of the case so far as authorities are concerned, they did not accept the action of the appellants as a fraud or cheating and neither suspended the appellants nor took any departmental action. It is also submitted even after registration of the case so far as authorities are concerned, they did not accept the action of the appellants as a fraud or cheating and neither suspended the appellants nor took any departmental action. On the contrary when they were examined during investigation they did not consider it to be a case of cheating and it is but for this reason that the investigating officer circumvented the provisions of law of obtaining sanction for prosecution and drop the offence under Prevention of Corruption Act and filed the charge sheet. It is lastly submitted that the appellants have travelled more than 8000 kms and have paid to Motilal full charges of travelling upto Kanyakumari & they have claimed milages worth travel only 6000 kms. and thus by no stretch of imagination it could be said that they have either cheated the Government or had any intentention to do so. 7. Learned Public Prosecutor appearing for the C.B.I. supported the judgment of the trial court. His submission is that the very fact that the accused persons did not travel to Kanyakumari and prepared the bills and charged the money by itself ipso facto makes out a case which is also admitted by the accused. It is submitted that actually the entire case is based on confessions inasmuch as the prosecution story is not denied by the appellants themselves and, therefore, there is no illegality so far as the judgment is concerned. It is submitted that under the rules the appellants should have travelled the entire distance for which they have claimed L.T.C. 8. I have given my earnest consideration to the rival submissions and have perused the entire record. 9. The main evidence in the case is that of PW. 1 S. D. Gangwani and it would be essential to quote his evidence in extenso. He has stated that in 1975 he was Stores Officer in H.M.T., Ajmer and he submitted an application, say L.T.C. advance Ex. P. 1 in a proforma wherein he had mentioned the mode of travel as by road and claimed an advance of Rs. 2800/- out of which Rs. 2200/- were sanctioned which he drew vide Ex. P. 2. He was accompanied by his wife and 3 sons. He has stated that families of J.S.D. Rai Singhani, N. K. Lallan and C. H. Logani and Govind Jamtani also accompanied his family. 2800/- out of which Rs. 2200/- were sanctioned which he drew vide Ex. P. 2. He was accompanied by his wife and 3 sons. He has stated that families of J.S.D. Rai Singhani, N. K. Lallan and C. H. Logani and Govind Jamtani also accompanied his family. They had started their journey from Ajmer by Mini-bus RJX 1121 of which Motilal was a driver. The fare of the minibus was settled by Logani at Rs. 1.50 per km. They left Ajmer on 18-10-75, arrived at Jaipur on 19-10-75 and on the same day they reached Delhi where they stayed in Birla Mandir. On 20-10-75 they arrived at Amritsar and same evening at Katra in Jammu. Next morning they left Katra for Srinagar where they arrived in the evening and stayed there upto 24-10-1975. On 25-10-1975 they left Srinagar for Hardwar and on 27.10.1975 they arrived at Agra from Hardwar where they stayed in a Sindhi Dharamshala. Driver demanded money from them at Agra to which they replied that they have already made him payment in advance and they are not carrying excess money except for their living and eating. Driver thereupon stated that he will arrange money at Indore and thus they left agra for Indore on 28-10-75 and reached there on 29-10-75. From Indore they went to Aurangabad and visited Ajanta and Ellora graves. Therefrom they left for Pune and stayed there in Morarji Gokuldas Dharamshala. They left Pune on 1-11-75 and came to Bombay on 2nd. Staying on 3rd November at Ahmedabad on 5th they arrived at Ajmer. He stated that they had not gone to Kanyakumari. He had received a receipt from the driver which is Ex. P. 8 (This is for Rs. 5000/- as fare for occupying 4 seats from Ajmer to Kanyakumari and back). He stated that he had claimed his L.T.C. on the basis of this receipt in Ex. P. 9 on which he received the balance vide Ex. P. 10. He has also proved the claims submitted by other accused persons. Then he stated that he had moved an application voluntarily to become an approver and his application was allowed. In cross examination he stated that all of them have decided from before that they will go from Ajmer to Kashmir or from Kashmir to Kanyakumari. P. 10. He has also proved the claims submitted by other accused persons. Then he stated that he had moved an application voluntarily to become an approver and his application was allowed. In cross examination he stated that all of them have decided from before that they will go from Ajmer to Kashmir or from Kashmir to Kanyakumari. He stated that they decided to go first to Kashmir and then to Kanyakumari after submitting the regular form in advance. He has admitted that he consulted the account section before drawing advance and that he was told that total distance from Ajmer to Kanyakumari is 6000 kms. He showed ignorance that there was L.T.C. rule in the department or not & further re-tterated that by the time they had taken advance they had the intention of going from Ajmer to Kanyakumari. He further stated that Logani has clearly told him that whatever extra would be spent in going to Kashmir and then to Kanyakumari will all be borne by all of them personally. He then stated that Motilal had demanded money for diesel at Agra. His partner was Ram Charan and it was for this that he took the bus to Indore and took Ram Charan and family therein who accompanied them upto Pune. In Pune he again raised a dispute about the money. Motilal started making new conditions about haulting charge etc. in Pune and started picking up quarrel on which Logani told him that if he will insist on extra charges of haulting etc. they will insist on charging money for carrying Ram Charan and his family in the bus. This raised controversy and resulted in hot exchange. Motilal refused to carry them any further and then offered that if they want to return he can drop them at Ajmer and this is why they had to abandon their trip upto Kanyakumari and returned to Ajmer. He stated that their journey from Ajmer to Kashmir, Kashmir to Pune and Pune to Ajmer covered about 8000 kms. He further stated that after arriving at Ajmer Motilal insisted that he will charge the entire money upto Kanyakumari and he only gave the receipt when the total amount was paid to him. He stated that their journey from Ajmer to Kashmir, Kashmir to Pune and Pune to Ajmer covered about 8000 kms. He further stated that after arriving at Ajmer Motilal insisted that he will charge the entire money upto Kanyakumari and he only gave the receipt when the total amount was paid to him. He stated that after obtaining this receipt and making payment they had talked to their superior officers that Motilal has charged money upto Kanyakumari so should they submit the bills accordingly. They explained all the circumstances and when they were told that they may charge it, it is only thereafter that they submitted the rest of the claim. He admitted that when they went from Agra to Indore and from Indore to Pune they had the intention of travelling upto Kanyakumari. He stated that he moved an application and confessed when CBI. people started harassing him and came to him repeatedly. He stated that he had discussed the matter with his General Managar, Shri Dwakanath Rakhda and Anand Kumar Poddar. They told him that since C.B.I. has taken up the matter they cannot help him. He therefore, thought it better to become an approver. He confessed his guilt before Superintendent of Police. C.B.I. in writing. Thereafter his statement was got recorded before the Magistrate. He further stated that he had submitted the bill upto Kanyakumari only because they had paid the money upto Kanyakumari and that they had already travelled much more distance. 10. From the perusal of the aforesaid statement of Shri S. D. Gangwani not a word about conspiracy is mentioned with any of the accused-appellant. On the contrary if anybody can be blamed it was the officers of the department, according to his statement, who despite knowing all the details advised him to submit the bills accordingly. The witness has explained the circumstances in details as to how they travelled 8000 kms. and paid the money for travelling about more than 13000 kms. to Motilal and claimed only for 6000 kms. from H.M.T. and that too on the advice of the superiors. It is also borne out from his statement that at no time they had any intention to defraud or cheat and they actually acted bona fide in drawing minimum amount out of the total amount paid and that too showing the travelling upto Kanyakumari only for the purpose the payment was made. It is also borne out from his statement that at no time they had any intention to defraud or cheat and they actually acted bona fide in drawing minimum amount out of the total amount paid and that too showing the travelling upto Kanyakumari only for the purpose the payment was made. If the story given by this approver was not correct it was for the prosecution to have got him declared hostile but not having done that the prosecution is bound by his statement and according to this entire submission not a word of dishonest intention is borne out. I have already stated above and at the cost of repetition. I would mention that senior officers including General Manager had been apprised of the situation and there could be no more bona fides on the part of the employees in this respect. It has also not been brought in evidence of this witness that any of the document had been falsified or forged for any purpose whatsoever, hence the statement of PW. 1 S.D. Gangwani supports the defence of the accused in all respect instead of supporting the prosecution. 11. PW. 2 was an accountant in notified area in Tanmarg. He has proved the entry of the vehicle RJX 1121 at his post Ex. P. 43 on 24.10.75. So far as this witness is concerned, he is hardly of any assistance to the prosecution because the accused themselves have admitted going to Kanyakumari and Gulmarg. 12. PW. 3 is also a witness showing the sale of diesel at Srinagar to the said vehicle. PW. 4 Dhandhumal is the Manager of Sindhi Dharamshala, Agra proving the entry of accused persons at Agra on 27-10-75. Jairam PW. 5 is Manager of Shaker Panchayat, Bombay where the accused had stayed on 2-11-75. PW. 6 Ravindra Kumar Gupta has proved the sale of diesel at Jammu. M. P. Sen PW. 7 was at Sales-tax Check-post in Haryana who has also proved the movement of vehicle RJX 1121 on 19-10-75. Similar is the evidence of PW. 8 Lalsingh Yadav who was at the check-post, Shahjahanpur. In fact there was no necessity of examining all of the aforesaid witnesses in the case as from the very beginning this is the case of the accused that they had travelled to all the places mentioned by these witnesses and had stayed at the places mentioned therein. 8 Lalsingh Yadav who was at the check-post, Shahjahanpur. In fact there was no necessity of examining all of the aforesaid witnesses in the case as from the very beginning this is the case of the accused that they had travelled to all the places mentioned by these witnesses and had stayed at the places mentioned therein. They do not advance the case of the prosecution whatsoever except strengthening the defence story. 13. PW. 9 Bhagchand Jain was an Accounts Clerk in H.M.T. who has proved the payment vouchers Ex.P.50 and P.51 concerning J.S.D. Rai Singhani. Similar is the statement of PW 10 Kishanchand Tanwani who was also a clerk in the Account Section and dealt with the documents concerning various accused persons. PW 11 is Lalji Narottam Kapdiya, Manager of Morarji Gokuldas Dharamshala, Pune who proved the presence of the accused in Pune on 1.11.75. Gaurishanker Khandelwal is an important witness examined as PW 12, who was Accounts Officer at H.M.T., Ajmer. He has stated that L.T.C. rules are contained in Ex. P. 66 and stated that if the accused had not gone to Kanyakumari they were not entitled to drop the claim in that respect. He has proved his signatures on Ex.P.10 which is about payment of Rs. 628/- to S.D. Gangwani and has stated that documents mentioned in the list Ex. P. 67 and P. 68 were recovered from him. The prosecution has relied on this witness for the signatures mentioned above to the effect that the accused would not have been paid the money had he known the fact of their not going to Kanyakumari earlier. He however in cross examination has clearly mentioned that he has no knowledge as to whether Ex. P. 66 has been approved by the Board of Directors or not and as to whether they had been adopted by H.M.T. He has admitted that even in the initial document the place of destination had been shown and that can be changed subsequently either before going on the journey or after returning from journey. He has then admitted that if the approval had been obtained from the controlling authority or L.T.C. sanctioning authority then Accounts Section pass the bill accordingly. It is further admitted that L.T.C. was available for going into any corner of the country. He has then admitted that if the approval had been obtained from the controlling authority or L.T.C. sanctioning authority then Accounts Section pass the bill accordingly. It is further admitted that L.T.C. was available for going into any corner of the country. Thus it is borne out from the statement of this witness that his section only passes the bills according to sanction given by the controlling authority or the sanctioning authority hence it was not least essential to have brought any fact to his notice if it had already been brought to the notice of controlling section. 14. PW 13 is Motilal. He is the driver-cum-owner of the vehicle RJX 1121 which was hired by the accused appellant. He has stated that he does not know English. He had taken the H.M.T. party on 8.10.75 in his vehicle. His work of depositing tax and obtaining permit is done by his friend Ram Charan. He has stated that Logani and Jamtani came to him and settled his vehicle at Rs. 1.50 per km. from Ajmer to Kashmir and from Kashmir to Kanyakumari. He had taken Rs. 2000/-in advance from Shri Logani. He thereafter gives the details of the journey similar to one given by PW 1 S.D. Gangwani. He stated that he had been paid rupees 12000/- in all for travelling 8000 kms. and the receipts issued by him are Ex.P.8, P.53, P.56, P.59 and P.63. He stated that Shri Logani and Jamtani had obtained his signatures on these receipts. He stated that he signed these receipts because he relied on them and on the pretext that they are for travelling upto Bombay. He stated that he was not told that the receipts had been prepared for travelling upto Kanyakumari. In his cross examination he has stated that his bus was settled for going upto Kanyakumari and the permit was also prepared accordingly. He states that till they left from Agra they had intention of going upto Kanyakumari. He admits that from Indore Ram Charan and family accompanied him and change in route was done which was got endorsed by Ram Charan. Accused had not objected to his taking. He admits that there was altercation with the accused regarding payment of money because they did not give the money as they could not arrange for it in Pune. He admits that a dispute arose between him and the accused persons. Accused had not objected to his taking. He admits that there was altercation with the accused regarding payment of money because they did not give the money as they could not arrange for it in Pune. He admits that a dispute arose between him and the accused persons. He then stated that Logani, Gangwani and Rai Singhani also fought among themselves. He admits that payment had been made at Delhi, Amritsar and other places but what amount had been paid at which place he does not remember. He has stated that by the time he had reached Bombay he had already received Rs. 6000/-. He states that receipts had been obtained from him when he had come to Jaipur after 6-7 days of their arrival at Ajmer. According to him receipts were written at Bhoogdamal's place who had assured that the money will be received. He stated that entire money was given to him after 6-8 months by Shri Logani. He then stated that as and when the received money they went on paying him. He has stated that he does not keep any accounts. He also denies that he cannot say which receipt had been written by him on what particular date and as to how much money had been paid to him in respect of the receipts given by him. He has denied the suggestion that he had insisted on charging upto Kanyakumari. He only insisted on charge for kilometers the vehicle had travelled. He admits that the distance from Ajmer to Kanyakumari is about 6000 kms. but has omitted to reply to the question as to how much money had been given to him subsequently. He stated that he learnt for the first time that the receipt upto Kanyakumari had been obtained from him when he met the C.B.I. Inspector. He denied the suggestion that he has given statement under pressure of the C.B.I. 15. The last witness is Chunnilal Sharma PW14 who was Sub-Inspector in C.B.I. This witness had stated that he obtained permission of the Magistrate Shri Rajendra Sharma for investigation and then recorded the statement. He has admitted that Rajendra Sharma was inspector with him in C.B.I. He admits that he did not verify whether Ex.P.66 L.T.C. rules had been obtained by H.M.T. or not. He has admitted that Rajendra Sharma was inspector with him in C.B.I. He admits that he did not verify whether Ex.P.66 L.T.C. rules had been obtained by H.M.T. or not. He stated that Shri Gangwani became an approver of his own and according to him Motilal driver was not an accused because he had not read English, therefore also he cannot say that he had prepared false receipts. This is the entire evidence in the case. 16. The aforesaid evidence is absolutely in line with the defence taken by all the accused-appellants and the story given by the approver. The case of the accused persons is also that they had intention of going upto Kanyakumari and that did travel any route from Kanyakumari upto Pune but as a dispute took place between the driver and the passengers the driver refused to carry them forward and they had to return to Ajmer. Hence the entire case has to be decided on the admitted position which is that the accused persons did charge the money for travelling upto Kanyakumari and submitted the receipts obtained from Motilal accordingly and paid money to Motilal, that they did travel a distance of 8000 kms. and would have gone upto Kanyakumari had they not been prevented due to a dispute between them and the driver. It is also borne out from the prosecution evidence that before the entire bills were brought to the notice of the higher authorities and since originally the documents had been prepared for going upto Kanyakumari and they had travelled more than the distance which was upto Kanyakumari they were advised to submit the claims accordingly which all may be absolutely improper and may be lack of propriety but can it be said that this all was done with an intention to cheat the department of forgeries were committed and as to whether there was any conspiracy entered into for the said purpose. 17. Coming to the question of conspiracy first I have no hesitation in holding that there is not a word in the evidence on record that the accused had any time met or decided jointly to prepare the false bills knowing that they were fraudulently or dishonestly including the H.M.T. to part with their claims. 17. Coming to the question of conspiracy first I have no hesitation in holding that there is not a word in the evidence on record that the accused had any time met or decided jointly to prepare the false bills knowing that they were fraudulently or dishonestly including the H.M.T. to part with their claims. On the contrary the evidence is that the senior most officer among the persons travelling who had been made approver now had already brought the facts to the notice of the superior officers and thereafter the claims were submitted. Thus if anybody was to be blamed & conspiracy was hetched, then it was between approver & the superior officers & the driver of course could not be an innocent person. He was the ultimate beneficiary & it was he to whom the entire payment was made. Regarding receipts upto Kanyakumari he has given evasive answers and refused to place on record the accounts. He contended by saying that he maintained no accounts which cannot be believed for a moment when he is plying a vehicle as Taxi. He has deliberately withheld these documents and in fact it was he because of when the accused-appellants suffered harassment inasmuch as he took a circuitous route from Agra to Pune via Indore in order to oblige his partner cum friend, Ram Charan and then raised a dispute in Pune and brought back the party without going to Kanyakumari. He is infact an accomplice having signed all the receipts showing the payment and his testimony cannot be relied upon. There is no other evidence about conspiracy and, therefore, the charge of conspiracy fails. There is yet another aspect of looking at it and i.e., that conspiracy has to precede offence and according to the prosecution accused persons had prepared the false documents even prior to their entering into conspiracy because according to the prosecution's own evidence they had definite mind to travel to Kanyakumari up to the point they reached Pune and had made huge payment to Motilal. 18. 18. Coming to the question of cheating the same is defined under S - 415 IPC which reads as under : "S. 415 IPC - Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'." 19. The graveman of the charge under S. 415 IPC is that there should be fraudulent and dishonest inducement to the person deceived and it is by deceiving such person that he is induced to deliver the property. This section thus consists of two parts, i. e., firstly where by deception practised upon a person accused dishonestly or fraudulently induces that person to deliver property to any person or to consent that any person shall retain any property; and secondly where, by deception, practised upon a person accused, intentionally induces that person to do or omit to do anything which he would not do or omit to do if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Thus dishonest or fraud in obtaining delivery of the property is condition precedent in the first part and intentionally inducement of the victim in the second. It is true that a fraudulent representation can be made directly or indirectly but at the same time for finding of the meaning for the word fraudulently and dishonestly, one will have to consider the provisions of Ss. 23 to 25 IPC wherein the intention to cause wrongful gain to one person and wrongful loss to another person has to be established. Thus criminal intention or mens rea must precede or at any rate accompanies the dishonest act which is totally missing in the instant case. Similarly there must be mens rea established for proving the cases under Ss. 467, 468 and 471 IPC. Unless the ingredients of Ss. 463 and 464 IPC are made out it is difficult to establish the case. Similarly there must be mens rea established for proving the cases under Ss. 467, 468 and 471 IPC. Unless the ingredients of Ss. 463 and 464 IPC are made out it is difficult to establish the case. There must be an intention to cause damage or injury to the public or any person or there should be an intention to commit fraud and with this intention that document may be falsely made, then alone it would amount to forgery. Otherwise also for making the false document the intention must be dishonest or fraudulent as in case of cheating. In this light if the present case is viewed, then apparently it appears that submitting the bill upto Kanyakumari when actually not travelled ex facie amounts to cheating or falsifying the bills. But if dested in the light of the prosecution evidence, then neither mens rea nor malafide intention is borne out, rather it appears that the accused persons have acted bona fide and in fact have or fallen prey to the advice of the superior officers and the Accounts department and lended themselves in trouble. They have in fact made fool of themselves when they travelled much more distance than for which the amount has been claimed and yet have faced the prosecution. It is prosecutions own case that the appellant from the very beginning disclosed that they will go to Kanyakumari, they hired the bus for Kanyakumari. They paid fare to the bus owner upto Kanyakumari. They travelled 8000 kms. They claimed only for 6000 kms. and that they could not go further because the driver picked up a quarrel after lifting his relations from Indore and in face of these admissions. I have absolutely no doubt that the prosecution of the accused appellants was not at all justified. In this case I am persuaded to observe that neither the department has raised any grievance nor any officer has taken note of the irregularity in mentioning the destination, more particularly that as admitted by the prosecution witnesses before the claims were submitted. The facts were brought to the notice of the authorities and that no monitory loss has been caused to the employers, possibly no charge-sheet would have been filed had the case been investigated by a senior officer. The facts were brought to the notice of the authorities and that no monitory loss has been caused to the employers, possibly no charge-sheet would have been filed had the case been investigated by a senior officer. In fact when several officials of an organisation are sought to be prosecuted in cases like the one where investigation starts on source information it is essential that the investigation must be carried out by senior person or atleast under the supervision of a senior person which circumstance is lacking in this case. On the contrary what has come on the record is that the sub-inspector was put in investigation of the case who sought permission of a Magistrate who also had been an employee of the C.B.I. department before joining judicial service and investigated the case. He came to the conclusions different than what the preliminary enquiry was prior to registration of the case at the instance of Superintendent of police, C.B.I. (S.P.E.) It was clear from the first information report that Superintendent of police, C.B.I. considered the driver also as one of the accused and from the nature of the offences, if there were any, he was certainly an accused or atleast accomplice, it was essential to have investigated the case into that light. When disclosed by the accused-appellants at the initial stage making the superior most person in rank as an approver at the cost of the subordinate employees is to be considered in the circumstances of this case as an unfair investigation. Looking from any angle in the circumstances of this case where none of the senior officers of the H.M.T. to see notes the filing of the claims have been brought and who were actually guilty for getting documents falsely prepared as they sanctioned the claim fulling knowing the facts of misconduct of the accused, if there was any, stands condoned by them and if that condonation has not to be taken note of, then all are equally guilty of perpetuating the crime. In my opinion in the peculiar circumstances of this case no criminal intention is established in the case. The accused-appellant deserve to be acquitted. 20. The result is that this appeal is allowed. The judgment of the trial court, dated 18.9.1980 and the conviction and sentence imposed on the accused-appellants are set aside and are acquitted of all the charges levelled against him. The accused-appellant deserve to be acquitted. 20. The result is that this appeal is allowed. The judgment of the trial court, dated 18.9.1980 and the conviction and sentence imposed on the accused-appellants are set aside and are acquitted of all the charges levelled against him. They are on bail and need not surrender to their bail bonds which shall stand discharged. *******