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Himachal Pradesh High Court · body

2000 DIGILAW 332 (HP)

AMRIT SINGH v. STATE OF H. P.

2000-12-22

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J :- This Revision Petition is directed against the order dated 23.3.1998 passed by the learned Special Judge (Forest) Shimla in case No.8-S/7 of 1995 whereby the application of the petitioner/accused (hereinafter referred to as accused) for dropping/quashing the proceedings in the said case had been rejected and a charge under Section 218/420/468/471/120-B of the Indian Penal Code (hereinafter referred to as the Code), Section 5(2) of the Prevention of Corruption Act, 1947 (here-in-after referred to as the Act) and Rule 18/20 of the H.P. Forest Produce Transit (Land Route) Rules, 1978 (hereinafter referred to as the Rules) have been ordered to be framed against the accused. Charges have been ordered to be framed against his co-accused also under varous heads. 2. Facts of the case, in brief, are that on investigation in F.I.R. No.2/84 registered at Police Station Railway Station Shimla under Sections 379/411 I.P.C. and sections 41 and 42 of the Forest Act, the investigating agency found that the accused and his co-accused had indulged in the acts of cheating, forgery, manipulation of fake records, corrupt practices and illicit transporaton of timber, therefore a charge-sheet against them was accordingly submitted to the Court within the time limit prescribed by this Court. Thereafter an application was filed by the prosectuion in the trial court for permission for further investigation of the case under Section 173(8) of the Criminal Procedure Code which was allowed. When nothing happened for some considerable length of time, the accused moved an application for dropping/quashing the proceedings on which the impugned order came into being. Feeling aggrieved the accused preferred the present petition. 3. I had heard the learned counsel for the accused and the learned Assistant Advocate General for the respondent State and have gone through the records. 4. The precise allegations against the accused as in the charge-sheet are that he was posted as Station Master, Railway Station, and Summer Hill in the years 1981-82. He entered into a criminal conspiracy with co- accused and pursuant to the said conspiracy, by misusing his official powers committed the following acts: (i) Against permit Nos.17/81-82 and 113/81:82 he issued 23 RRs thereby enabling illicit transportation of 3732 timber scants to Jamnanagar (Jagadhry) and other places contrary to the terms ad conditions of the said permits. (ii) Against permit No.55/81-82 he issued 16 RRs. in all out of which RR Nos. (ii) Against permit No.55/81-82 he issued 16 RRs. in all out of which RR Nos. 922755, 192756, 922758 and 958060 were issued after expiry of the date of validity of the permit thereby enabling illicit transportation of 1622 scants over arid above the permitted quantity. (iii) Against permit No.136/81-82 by issuing RR Nos. 785684,785685 and 792873 respectively dated 4.12.81, 6.12.81 and" 19.1.82 he enabled illicit transportation of 374 scants over and above the permitted quantity, after expiry of the date of validity of the permit and to the destinations other than the permissible destinations under the permit. (iv) Against permit Nos. 213/81-82 he issued 14RRsoutofwhichinRRs 725730 and 785684 he deliberatedly dd not mention the permit number so that exact number of the transported timber might not be detected. (v) The accused committed the above acts by mis-using his official powers with a view to secure unlawful gain to himself, his son accused Bhupinder Singh, Mast Ram, Assistant Station Master and undue loss to the State and thereby committed offences punishable under Sections 218,420,468,471 and 120-Bofthe Indian Penal Code, Section 5(2) of the Prevention of Corruption Act and Rule 1/20 of H.P. Forest produce Transit (Land Route) Rules. 1978. 5. Be it stated that the Revision Petition has been preferred on the grounds; (i) that requisite sanction to prosecute the accused was not obtained and filed but the trial court held that such sanction was there, (ii) that despite the orders of this court that the charge- sheet complete in all respects including investigation against the accused be submitted within the specified time, the charge-sheet was submitted though within time as provided by this Court but without completion of investigation and contrary to the orders of this Court, the trial court granted permission for further investigation of the case, and (iii) that the trial Judge directed the framing of charge against the accused without application of mind to the material placed on record and without assigning reasons therefor. 6. At the time of arguments the learned counsel for the accused, very fairly submitted that in view of the latest position in law on the requirement of sanction to prosecute a retired employee as the accused is, he did not want to press the ground of want of sanction to prosecute. Thus ground (i) supra does not survive for determination. 7. Thus ground (i) supra does not survive for determination. 7. It is not disputed that the impugned order has been passed on the basis of the material available on the charge-sheet as submitted and no material whatsoever had been placed before such court pursuant to any further investigation as was permitted under Section 173(8) of the code of Criminal Procedure. Therefore, ground (ii) supra also does not survive for determination. It is however clarified that this observation will not be interpreted to mean that the accused will have no right to challenge the production of any fresh evidence collected on the basis of the sanction accorded by the trial court for further investigation. The accused, therefore, may in this regard raise objections, if any, at the appropriate stage and the trial court will decide such objections as and when raised in view of the order dated 20.2.1995 passed by this Court in Cr. W.P. No.23 of 1994. 8. The sum and substance of the allegations against the accused has already been set-out in para 4 supra. It has however to be examined whether there is material on record to prima facie substantiate these allegations and whether such allegations constitute the grounds to proceed against the accused for the commission of offences punishable under Sections 420, 468, 471,218 and 120-B of the Code, Section 5(2) of the Prevention of Corruption Act, 1947 and Rule 18 read with Rule 20 of the Rules. 9. Section 420 of the Code read as follows: "420. Cheating and dishonestly inducing delivery of property: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 10. It is evident from a bare reading of the aforesaid provisions that cheating is one of the essential ingredients to constitute an offence punishable under Section 4201.P.C. Cheating has been defined under Section 415 of the Code which reads as follows: "415. It is evident from a bare reading of the aforesaid provisions that cheating is one of the essential ingredients to constitute an offence punishable under Section 4201.P.C. Cheating has been defined under Section 415 of the Code which reads as follows: "415. 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". 11. It is apparent from the aforesaid definition of cheating that an act to amount to cheating must be an act of deceiving any person and fraudulently and dishonestly inducting such person to deliver any property to any person or to consent that any person shall retain any property or the inducement to the person deceived must be to do or omit to do anything which he would not do or omit if he was not deceived. 12. Even if the allegations as made are admitted to be correct evidently, the element of deceiving any person so as to deliver any property or to consent for retention of any property or inducement to do or omit to do anything by anyone who would not have done or would not have omitted to do such thing if he was not so deceived are altogether missing. Therefore, in the given facts and circumstances of the case there are no reasons to proceed against the accused for the commission of an offence punishable under Section 420 IP.C. 13. Section 468 of the Code reads as follows: "468. Forgery for purpose of cheating: Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine?" 14. In view of the aforesaid provisions, to constitute an offence punishable under Section 468 of the Code the alleged forgery must be shown to have been committed with the intention that the forged document will be used for the purpose of cheating. In view of the aforesaid provisions, to constitute an offence punishable under Section 468 of the Code the alleged forgery must be shown to have been committed with the intention that the forged document will be used for the purpose of cheating. Even, as per the allegations the receipts issued by the accused cannot be said to be forged for the purpose of cheating. Therefore, in the facts and circumstances of the case as alleged the involvement of the accused in the commission of an offence punishable under Section 468 of the Code is not made out. 15. Section 471 of the Code reads as follows: "471. Using as genuine a forged document: 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." 16. In view of the aforesaid provisions one of the essential ingredients of an offence punishable under Section 471 of the Code is fraudulent or dishonest use of a forged document as genuine. A forged document will be a document falsely made wholly or in part by forgery. 17. Section 464 of the Code defines the expression "making a false document" as follows: "464. Making a false document: 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 alternation; or Thirdly. - 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 alternation; 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 does not know the contents of the document or the nature of the alteration." 18. In view of the aforesaid definition, to constitute an act of "making a false document" the essential ingredients amongst others are the intention of causing it to be believed that such document or a part thereof was made, signed, sealed or executed by or with the authority of a person competent to do so whereas in fact it was not so made, signed, sealed or executed to the knowledge of the person who dishonestly or fraudulently intends to cause it to b§ believed as genuine, or the document must be altered as a whole or in any material part thereof without lawful authority and dishonestly or fraudulently after it has been made/executed by the executants or the document must be got dishonestly or fraudulently signed, sealed, executed or altered from a person of unsound mind or under intoxication or so deceived that he did not know the contents of the document or the nature of the alternation. 19. In the admitted facts and circumstances of the case none of the aforesaid ingredients are available in the allegations Against the accused, therefore, no prima facie case is made out against the accused for the commission of an offence punishable under Section 471 of the Code and the accused can not be proceeded against for the commission of the said offence. 20. However, a perusal of the record reveals that the acts imputed to the accused in the charge-sheet are supportable on the basis of the material placed on the record. A perusal thereof reveals that the accused issued various RRs against various permits permitting transportation of the timber after the expiry of the period of validity of the permits. 20. However, a perusal of the record reveals that the acts imputed to the accused in the charge-sheet are supportable on the basis of the material placed on the record. A perusal thereof reveals that the accused issued various RRs against various permits permitting transportation of the timber after the expiry of the period of validity of the permits. It is revealed by the records that RR Nos, 785684 and 785685 respectively dated 4.12.1981 and 6.12.1981 were issued against pass No. 136/81-82 whereas its period of validity had expired on 16.11.1981. Similarly, against permit No.55/81-82 valid upto 30.7.1981, RR Nos.992755,992758 and 528202 respectively dated 3.8.81,4.8.81 and 1.8.81 were issued for the transportation of the timber. It is also prima facie revealed by the records that the timber had been booked and transported on the basis of the Railway receipts issued by the accused to the destinations other than the destination to which it could be transported under the pass. Permit No.55/81 -82 was valid for transportation of the timber of Yamuna nagar through the defined route. However, vide RR 528202 allegedly issued by the accused the timber was transported to Barnala. There being no permit for transportation of the good from Summerhill to Chandigarh the timber was transported to Chandigarh vide RR No.792873. Similarly against pass No.17/81-82 timber was transported under the various RRs allegedly issued b^ the accused to the stations other than the destination specified in the permit. Such stations are Barnala, Subji Mandi, Tuglakabad and Moga etc. It is also apparent from the records that permit number regarding transport of the timber was not given in various RRs such as RR NO. 785665, 785666,785675,785694,785727,785728,785730. Against pass No. 113/81-82 whereunder the timber could be transported to Yamunanagar timber was transported to Barnala vide RR No. 292848 issued by the accused. Against pass No.136/81-82 valid for transportation of timber to Yamunanagar the timber was transported to Abhor vide RR No. 571993 issued by the accused. The records further reveal that against RRs issued by the accused more timber than permissible was transported. A further perusal of the records reveals that the allegations made against the accused are prima facie supported by the material on record. The records further reveal that against RRs issued by the accused more timber than permissible was transported. A further perusal of the records reveals that the allegations made against the accused are prima facie supported by the material on record. Such type of transportation beyond the scope of the validity of the permits prima facie shows that the accused conspired with other accused as alleged and in furtherance of the said conspiracy framed incorrect record to facilitate the illicit transportation of the timber and to save so transported timber from being seized/forfeited to the State of H.P. and thereby enabled his co-accused in illicitly transporting the timber. Thus, there are grounds to proceed against him for the commission of offences punishable under Sections 218 and 120-B I.P.C. 21. In view of the provisions of Rule 18 of the Rules, being an employee of the Railwaydie accused could not have accepted the timber for transportation by Rail unless accompanied by a valid pass for its transportation for particular stations and thus having acted contrary to the said rule prima facie committed an offence punishable under rule 20 of the Rules. Thus, the grounds exist to proceed against him for the commission of an offence punishable under rule 18 read with rule 20 of the Rules. 22. In the facts and circumstances of the case, it can be prima facie inferred that the accused indulged in the illegal acts alleged to have been committed by him with a view to obtain, pecuniary advantage to himself and his son Bhupinder Singh who is one of the co-accused in the case allegedly involved in managing illicit transportation of the timber, by illegal means and is thus prima facie shown to have committed criminal misconduct. Therefore, there are grounds to proceed against accused for the commission of an offence punishable under Section 5(2) of the Act. 23. In view of the above discussion and reasons there are no grounds to proceed against the accused for the commission of offences punishable under Sections 420,468 and 471 of the Code but there are grounds to proceed against him for the commission of offences punishable under Sections 218 and 120-B of the Indian Penal Code, Section 5(2) of the Prevention of Corruption Act and rule 18 read with rule 20 of the H.P. Forest Produce Transit (Land Route) Rules. 24. 24. As a result, the impugned order deserves to be partly set-aside and accordingly it is set-aside to the extent it directs framing of the charge against the accused under Sections 420,468 and-471 I.P.C., however the rest of it is maintained. The Revision Petition is accordingly disposed of. 25. Parties through their learned counsel are directed to appear before the trial Court on 18.1.2001. Records of the trial court be returned forthwith.