STATE OF GUJARAT v. MOTIBHAI JETHABHAI MAKWANA — 1991 DIGILAW 350 (GUJ)

MEHTA, J. ( 1 ) BEING aggrieved by the judgment and order dated 30-10-1982 passed by the Court of the learned Judicial Magistrate, F. C. , Bajana in Criminal Case No. 610 of 1981, the State has approached this Court by way of Criminal appeal No. 84 of 1983 for enhancement of sentence under Sec. 377 Cri. Pro. Code. The State has also filed Criminal Appeal No. 85 of 1983 from the order of acquittal passed for the offences punishable under Secs. 420 and 468 I. P. C. The original complainant has also filed Criminal Revision Application No. 42 of 1983 against the order of acquittal passed for the aforesaid offences and also against the order of probation under the provisions of the Probation of offenders Act. ( 2 ) THE facts of the case are that the accused Motibhai Jethabhai makwana was working as a Teacher in a High School run in the name of Patwari Maniben Balubhai Vidyavihar at Bajana. According to the prosecution, the accused submitted a bill for a sum of Rs. 2,579. 00 before the school authorities for Leave Travel Benefit on the ground that the accused with his family travelled on 6-5-1981 from Bajana to Varanasi and on 17- 5-1981 from Varanasi to Bajana by railway and travelled in First Class. According to the prosecution, the complaint was filed by the complainant in the Court of Judicial Magistrate F. C. , Bajana for offences under Sees. 420, 468, 465 and 511 I. P. C. The said complaint was filed on 16-10-1981. The court passed an order under Sec. 156 (3) Gri. Pro. Code for making an inquiry by the Police. The P. S. I. , Bajana submitted the charge-sheet against the present accused and on submission of the said charge-sheet, the Court took cognizance and tried the case against the accused for the offences punishable under Sees, 420, 468, 465 read with Sec. 511 I. P. C. The accused pleaded not guilty to the charge. ( 3 ) MR. K. M. Mehta, learned Addl. P. P. for the State submitted at the outset that the appeal of the State filed under Sec. 377 Cri. Pro. Code may be treated as an appeal under Sec. 11 of the Probation of Offenders Act. Mr. Amit Shah has also fairly stated that he has no objection if the appeal filed by the State under Sec. 377 Cri. P. P. for the State submitted at the outset that the appeal of the State filed under Sec. 377 Cri. Pro. Code may be treated as an appeal under Sec. 11 of the Probation of Offenders Act. Mr. Amit Shah has also fairly stated that he has no objection if the appeal filed by the State under Sec. 377 Cri. Pro. Code is treated as an appeal under sec. 11 of the Probation of Offenders Act. Therefore, Cri. Appeal No. 84 of 1983 filed by the State is ordered to be treated as an appeal under Sec. 11 of the Probation of Offenders Act. 13. Therefore, now we have to look as to what offence is committed by the accused. Before coming to the conclusion whether the trial Court committed an error in giving benefit of the provisions of the Probation of offenders Act to the accused, it will have to be seen whether the conviction order passed by the trial Court was tenable on the facts found by the trial court, as envisaged by Sec. 465 I. P. C. Section 465 I. P. C. is a punishing section for the offence of forgery. Therefore, we will have to turn to the definition of forgery given in Sec. 463 I. P. C. Section 463 I. P. C. reads as under :"463. Whoever makes any false document or part of a document 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. "section 463 I. P. C. starts with the words "whoever makes any false document or part of a document". Therefore, we will have to turn to Sec. 464 I. P. C. which defines "making a false document". Section 464 I. P. C. reads as under:"464. "section 463 I. P. C. starts with the words "whoever makes any false document or part of a document". Therefore, we will have to turn to Sec. 464 I. P. C. which defines "making a false document". Section 464 I. P. C. reads as under:"464. A person is said to make a false document -First - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or secondly - Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed 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, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he docs not know the contents of the document or the nature of the alteration. "the elements of forgery by making a false document are : (1) that a person dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document; and (2) does as above with the intention of causing it to be believed that such document or part of a document was made, signed sealed or executed; (a) by or by the authority of a person by whom or by whose authority it was not so made, signed, sealed or executed, or (b) at a time at which he knows that it was not made, signed, sealed or executed. Thus, the assertion of a false claim in a document does not constitute the document a false one, when it is executed by the party who purports to execute it and there is no intention of causing a belief that it was executed by some other person, real or fictitious. In the present case, the accused had submitted a false claim by presenting the bill. The bill is not submitted with the intention of causing a belief that it was executed by some other person, real or fictitious. Therefore, on the evidence led by the prosecution, it cannot be said that the offence punishable under Sec. 465 I. P. C. is committed by the accused or the offence punishable under Sec. 465 read with Sec. 511 I. P. C. is committed by the accused. In view of the above discussion, when no offence is proved to have been committed by the accused, there is no question of giving benefit under the provisions of the Probation of Offenders Act and, therefore, the accused is entitled to be acquitted of the offence punishable under Sec. 465 read with Sec. 511 i. P. C. This Court can under Sec. 401 Cri. Pro. Code suo motu take cognizance of a matter which comes to its knowledge and set aside an order of conviction, even though the accused has not filed an appeal against the order of conviction, if it is felt that in view of the finding arrived at, the order of conviction cannot stand. The accused is, therefore, entitled to be acquitted of the offence punishable under Sec. 465 read with Sec. 511 I. P. C. I am supported in this view by the judgment of this High Court in the case of State v. Chhagan Jeram, (1967) viii GLR 1050. ( 4 ) SO far as Criminal Appeal No. 85 of 1983 filed by the State against the order of acquittal for the offences punishable under Secs. 420 and 468 I. P. C. read with Sec. 511 I. P. C, is concerned, as stated above the trial Court has given the finding that the prosecution has succeeded in showing that the accused made an attempt to cheat. 420 and 468 I. P. C. read with Sec. 511 I. P. C, is concerned, as stated above the trial Court has given the finding that the prosecution has succeeded in showing that the accused made an attempt to cheat. The question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. ( 5 ) ). In the case of Abhayanand Mislira v. State of Bihar, reported in AIR 1961 SC 1698 , the Supreme Court lias observed in Paras 26 and 27 of the judgment as under : "26. We may summarise our views about the construction of Sec 511 Indian Penal code thus : A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence, and (ii) he having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimat act towards the commission of that offence but must be an act during the course of committing that offence. ( 6 ) ). ( 6 ) ). In the present case, the appellant intended to deceive the University and obtain the necessary permission and the admission card and, not only sent an application for permission to Sit at the University examination, but also followed it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. Tile preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he despatched it, he entered the realm of attempting to commit the offence of cheating. " as laid down by the Supreme Court in the aforesaid case, if we appreciate the facts of this case, it can certainly be said that by submitting a bill of false claim the accused has committed the attempt of cheating because the moment the accused submitted the bill to the authorities, he has entered the realm of attempting to commit the offence of cheating. Therefore, looking to the facts of the present case, on the evidence on record and the finding given by the trial Court, the trial Court ought to have convicted the accused for the offence punishable under Sec. 417 read with Sec. 511 I. P. C. Mr, Shah appearing on behalf of the accused was unable to point out as to why the accused should not be convicted for the offence punishable under Sec. 417 read with Sec. 511 I. P. C. So far as the imposition of sentence for the said offence is concerned, Mr. Shah appearing on behalf of the accused submitted that the trial Court while convicting the accused for the offence punishable under Sec. 465 read with Sec. 511 I. P. C. has given the benefit of probation under the provisions of the Probation of Offenders Act after calling for the report from the Probation Officer. Shah appearing on behalf of the accused submitted that the trial Court while convicting the accused for the offence punishable under Sec. 465 read with Sec. 511 I. P. C. has given the benefit of probation under the provisions of the Probation of Offenders Act after calling for the report from the Probation Officer. The trial Court also took into consideration that the accused is responsible for maintaining his family and looking to the facts and circumstances of the case, the Court has granted the benefit of probation and this Court also will give the benefit to the accused under the provisions of the Probation of Offenders Act. Mr. Shah also submitted that the offence is alleged to have been committed in the year 1981 and after a lapse of more than ten years, the accused may not be sent to Jail. He submitted that this is a fit case wherein the Court should grant benefit of the provisions of the Probation of Offenders Act to the accused. Mr. Shah also submitted that no pecuniary benefit is obtained by the accused and, therefore, the interest of justice will be served by giving the accused admonition as provided under Sec. 3 of the Probation of Offenders Act. Mr. K. M. Mehta, learned Addl. P. P. for the state also fairly stated that the interest of justice will be served if the accused is given admonition. Looking to the facts and circumstances of the case, I think that the ends of justice will be met by dealing with the accused under Sec. 3 of the Probation of Offenders Act. I am taking this view because of the fact that the school authorities have not suffered any loss by reason of the accused having attempted to cheat the school authorities. The incident occurred in the year 1981 and after the conclusion of the trial before the Magistrate, this appeal was filed by the State. The appeal was admitted in the year 1983. The accused must have suffered mental agony and also must have been put to lot of expenses in defending himself before two Courts Under such circumstances, the accused deserves to be given admonition under Sec. 3 of the Probation of Offenders Act, for the offence punishable under Sec. 417 read with Sec. 511 I. P. C. ( 7 ) ). The accused must have suffered mental agony and also must have been put to lot of expenses in defending himself before two Courts Under such circumstances, the accused deserves to be given admonition under Sec. 3 of the Probation of Offenders Act, for the offence punishable under Sec. 417 read with Sec. 511 I. P. C. ( 7 ) ). So far as Criminal Revision Application No. 42 of 1983 is concerned, in view of the orders passed in Criminal Appeal No. 84 of 1983 and Criminal appeal No. 85 of 1983, no order is required to be passed on the said Criminal revision Application filed by the complainant. In the result, Criminal Appeal No. 84 of 1983 filed by the State is dismissed. By suo motu exercise of revisional powers, I set aside the iudgment and order of conviction for the offence punishable under Sec. 465 read with Sec. 511 I. P. C. and also the order of probation passed by he trial Court and acquit the respondent-accused of the offence punishabia inder Sec. 465 read with Sec. 511 i. P. C. .