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2004 DIGILAW 760 (CAL)

AMAR SINGH VERMA v. UNION OF INDIA

2004-12-13

JYOTESH BANERJEE

body2004
JYOTESH BANERJEE, J. ( 1 ) THE present application under sections 401 and 482 of the Code of Criminal procedure is directed against an order dated 21. 2. 1989 passed by the learned sessions Judge, Andaman and Nicobar Islands at Port Blair under sections 399 and 401 of the Cr. PC in Criminal Revision Case No. 13 of 1988 setting aside the order No. 20 dated 10. 8. 1988 of the Judicial Magistrate, First Class, Port blair discharging accused/petitioner in G. R. Case Nos. 491/ 259 of 1988. ( 2 ) THE facts and circumstances leading to the instant application are as follows: the Assistant Secretary (Vigilance) of the Andaman and Nicobar administration sent a confidential letter to the I. G. of Police, A and N Islands, port Blair alleging malpractices adopted by the petitioner in the matter of procuring and disposal of a scooter. The background of such allegation was that against an allotment order BCp060084 dated 20. 3. 79 one Sri Suresh B. Bijalani of Block No. 42/9, East Patel Nagar, New Delhi was allotted with one 'chetak' Scooter out of foreign exchange quota and the said scooter was duly supplied to Mr. Bijalani by M/s. Bajaj Auto Ltd. , New Delhi. The sale of the scooter within a period of two years of its purchase was not permissible. The scooter got its registration No. AN 3012 at Port Blair on 26. 7. 81. On scrutiny it was found that various column of Form 'a' for payment of road tax and Form 'b' for registration of the vehicle were filled in by the accused/petitioner, while in Form 'a' the petitioner affixed his own signature on behalf of Mr. Bijalani in Form 'b', the petitioner, it was alleged, signed posing himself to be Mr. Bijalani. The signature in Form 'a' did not tally with the signature of Mr. Bijalani appearing in Form 'b'. The Insurance Policy of the said scooter shows the name of one Mr. Suresh was not found at the address given or in the Government Service at Port Blair. It was alleged that the present petitioner got it done. The scooter was subsequently sold to one Mr. R. V. Alagar Swamy, Contractor of 46, M. G. Market, Port Blair on 15. 1. 82 within one year of the original purchase from the dealer for Rs. 16,500/ -. It was alleged that the present petitioner got it done. The scooter was subsequently sold to one Mr. R. V. Alagar Swamy, Contractor of 46, M. G. Market, Port Blair on 15. 1. 82 within one year of the original purchase from the dealer for Rs. 16,500/ -. It was alleged that there was nexus between the petitioner and the said Alagar swamy. It was further alleged that the petitioner forged the signature of sri Bijalani for the purpose of registration of the vehicle. On receipt of the complaint a case was registered against the petitioner on 27. 4. 85. In course of the investigation, the Government Examiner of questioned documents gave the view that the handwriting on the aforesaid documents belonged to the petitioner. In the aforesaid facts and circumstances, the police on completion of the investigation submitted chargesheet under sections 417/ 468/471 of the IPC before the Chief Judicial Magistrate, Port Blair who transferred the case to the file of the Judicial Magistrate, First Class (1), port Blair. The learned Trying Magistrate by his order dated 10. 8. 88 discharged the petitioner on the ground that no prima facie case on the materials on record justified framing of the charge under any of the provisions of the IPC. Thereafter on receipt of anonymous complaint against the order of the learned Magistrate, the impugned proceeding in revision under section 399 read with section 401 of the Cr. PC was started by the learned Sessions judge (Revision Case No. 13/88 ). The learned Sessions Judge by the order impugned expressed the view that there was a prima facie case justifying framing of the charge and on such a finding set aside the order dated 10. 8. 1988 and restore the case to its original and number and transferred the case to the Court of CJM, Port Blair for trial according to law. On being aggrieved by the aforesaid order, the petitioner has come up before this court in revision. It is contended that through the investigation no prima facie case against the accused/petitioner under any of the sections contained in the chargesheet i. e. , sections 417, 420, 468 and 471 was made out. ( 3 ) THE question before me was that the learned Sessions Judge, in the facts and circumstances of the case, justified in setting aside the order passed by the learned Trial Court ? ( 3 ) THE question before me was that the learned Sessions Judge, in the facts and circumstances of the case, justified in setting aside the order passed by the learned Trial Court ? The order passed by the learned Magistrate at the time of consideration of charge, noted the provisions under sections 468 and 471, IPC in view of the submission made by the learned A. P. P. before him that in the facts and circumstances of the case charge under sections 468 and 471 should be raised against the accused/petitioner. He observed that section 468, IPC provided punishment for the offence of forgery for the purpose of cheating. In this connection he also considered the ingredients to constitute the offence of cheating as laid down by the Apex Court, in the case of Ram Jas vs. State of u. P. , reported in 1974 Cr. LJ (SC) 1811, by noting that there should be fraudulent or dishonest inducement of a person by deceiving him and the person so deceived should be induced to deliver any property to any person or to consent that any person should retain any property or that the person so deceived should be induced to do or omit to do anything he would not do or omit if he were not so deceived. In cases covered by deception for inducing any person or omit to do anything which he would not do or omit if he were not so deceived, there must be material to show that the act or omission caused or was likely to cause damage or harm to the person induced in body, mind, reputation or property. Regarding making of false document, learned Magistrate noted that such offence was committed when preparation of false document was made dishonestly or fraudulently with the further proof that such document was made with such intention that the document so forged would be used for the purpose of cheating. The learned Magistrate thereafter proceeded to consider the whole allegation raised against the present petitioner noting the allegation that the petitioner/ accused Sri Amar Singh Verma (S. I. of Police, A. and N.) committed malpractice in the matter of procurement of a scooter (being Bajaj Chetak bearing registration No. AN 3012) and that the accused/petitioner filled up Forms 'a' and 'b' for registration etc. of the scooter in the name of one Suresh B. Bijalani in his own handwriting and further he had signed in the name of the said suresh who was unknown and who could not be traced out and in this way the said accused/ petitioner used the fictitious name of the said Suresh B. Bijalani and thus he forged documents and cheated the registration and taxing authority of A and N Islands by using the forged documents. Thereafter the learned magistrate observed that it was an admitted position that the accused did not get the scooter registered in his own name but got it registered in the name of the said Suresh B. Bijalani and as such it could not be said that there was wrongful gain or advantage to the accused with corresponding wrongful loss to another and as such there could not be any question of causing or likely to cause damage or harm in body, mind, reputation or property to the registering or taxing authority or to any other person and as such no question as to deceive, forgery or cheating could arise. On these findings, the learned Magistrate passed the order of discharge. ( 4 ) IN the suo motu revision, the learned Sessions Judge found in the above mentioned facts and circumstances of the case that the accused/petitioner signed form 'b' meant for registration of the concerned vehicle posing himself to be suresh B. Bijalani. He (the accused) thus clearly induced the Registration Officer to believe that it was the genuine signature of Mr. Bijalani. Thereafter, the learned Sessions Judge in the order impugned proceeded to point out the effect of such action on the part of the accused/petitioner by observing that once a vehicle was registered in the name of a person, the said person was under so many legal obligations and such person also get certain statutory duties to perform such as he was to pay tax for the vehicle from time to time and if the vehicle was involved in any road accident or criminal cases, the person in whose name, the vehicle was registered, was exposed to certain criminal liabilities unless he could explain his conduct before the competent authority/court. The learned Judge further pointed out that it came to light during investigation that there was no such person with the name of Suresh B. Bijalani. The learned Judge further pointed out that it came to light during investigation that there was no such person with the name of Suresh B. Bijalani. The learned judge observed that when the accused thus used the name of a fictitious person for the purpose of obtaining registration of the vehicle and had it been known to the registering authority that the said Suresh B. Bijalani was a fictitious person or that the man who was signing as Suresh B. Bijalani was in fact not suresh B. Bijalani, said authority would not have definitely issued the registration certificate on the basis of the prayer made in Form 'b'. The learned judge pointed out that in case of default in payment of tax or in case of involvement of the vehicle in accident, there would not be any person by the name of Suresh Bijalani against whom legal action could be taken and in this way the Government was exposed to the risk of losing the road tax and other revenues available against the registered vehicle. Even if there was a genuine person by the name of Suresh Bijalani since there was no privity of agreement between the Government Registering Authority and such person, the said suresh Bijalani would not have legal obligation to pay tax or other revenues on the basis of registration of the vehicle as Form 'b' was never filled in or signed by him. Regarding the question of cheating, the learned Judge considered the question whether the allegations levelled against the accused/petitioner came within the definition given under section 415, IPC and pointed out that the alleged act or omission done by the person must cause damage or harm to the person deceived. Regarding the question of cheating, the learned Judge considered the question whether the allegations levelled against the accused/petitioner came within the definition given under section 415, IPC and pointed out that the alleged act or omission done by the person must cause damage or harm to the person deceived. It was pointed out that the registration certificate was clearly a property within the meaning of section 415, IPC and even if it was contended that the registration certificate might have some value to the person holding the certificate but it had no value to the registering authority, the learned judge with the help of the case of Durga Das Tulsi Ram Sood vs. State, reported in AIR 1955 Bombay, Page-82, found that even if a thing had no value in the hands of the person cheated, but became a thing of value in the hand of a person who might be in possession of it as a result of cheating, it would still be property. Regarding forgery, the learned Judge observed that the accused/petitioner in the instant case signed Form 'b' posing himself to be Suresh B. Bijalani and submitted it before the registering authority, with clear intention of causing it to be believed that it was signed by Bijalani although the accused knew that the document did not actually bear the signature of any person by the name of Suresh B. Bijalani. It was observed that this was clearly fraudulent act and thus the accused/petitioner made a false document and with the help of that document, the accused caused the registering authority to part with registration certificate, which was a property. On this finding, the learned sessions Judge set aside the order passed by the learned Magistrate discharging the accused and restored the case to its original file and number and transferred the same to the Court of Chief Judicial Magistrate, Port Blair for trial according to law. ( 5 ) IN his submission Mr. Mukherjee the learned Senior Counsel for the petitioner has pointed out that learned Sessions Judge sitting in revision has exceeded his jurisdiction and in fact he came to a specific finding regarding the allegations raised and in this way, the order passed by the learned Sessions judge is tainted with illegality. ( 5 ) IN his submission Mr. Mukherjee the learned Senior Counsel for the petitioner has pointed out that learned Sessions Judge sitting in revision has exceeded his jurisdiction and in fact he came to a specific finding regarding the allegations raised and in this way, the order passed by the learned Sessions judge is tainted with illegality. He has further submitted that since the offence punishable under section 468 clearly indicates that the forgery of the document should be with the intention that the same shall be used for the purpose of cheating, the learned Sessions Judge erroneously came to a conclusion regarding the aforesaid purpose. On the otherhand, the learned Counsel for the State Mr. Chatterjee has supported the order passed by the learned Sessions Judge, by pointing out, that learned Sessions Judge, assigned sufficient reasons to disturb the finding of the Trial Court. ( 6 ) I have already seen from the record that the learned Judicial Magistrate passed a detail order where he ultimately came to a conclusion that in the facts and circumstances of the case by the alleged act of the accused/ petitioner there was no wrongful gain or advantage to the accused with corresponding disadvantage or wrongful loss to another and as such there could not be any question of causing or likely to cause damage or harm in body, mind, reputation or the property to the registering and/or taxing authority or to any other person and as such no question of forgery and cheating could arise. I have already mentioned that the revision has been taken up suo motu by the learned Sessions judge on the basis of a complaint that the learned Magistrate improperly discharged the accused and from the order impugned it is explicit that the learned Sessions Judge reassessed the materials on record and came to a different finding. It should be pointed out that in the instant case, the learned magistrate passed the order under section 239 of the Cr. PC where the magistrate is required to come to an ultimate finding that the charge levelled against the accused is groundless and for that purpose he has got a duty to consider the entire material referred to in the section. PC where the magistrate is required to come to an ultimate finding that the charge levelled against the accused is groundless and for that purpose he has got a duty to consider the entire material referred to in the section. I have already mentioned that while passing the order, the learned Magistrate noted the whole allegation levelled against the accused/petitioner and also discussed the law involved in the matter. The learned Sessions Judge set aside the order, exercising his jurisdiction under section 399 read with section 397 of the Cr. PC. The section does not indicate any method by which the superior Court should be apprised of irregularities in the proceedings of the inferior Court. But discretion in the exercise of revisional jurisdiction should be exercised within the four corners of the section whenever there has been miscarriage of justice in whatever manner as revision is not a right but is only a procedural facility given to a party. That being so, while considering the legality, propriety or the correctness of a finding or a conclusion, the revising Court should not dwell at length upon the facts and evidence of the case. The Court in revision considers the materials only to satisfy itself about the correctness, legality and propriety of the findings sentence or order and refrains from substituting its own conclusion or an elaborate consideration of the evidence or materials on record. In the instant case, the whole allegation levelled against the accused/petitioner is that he filled up Form 'a' for payment of road tax and Form 'b' in connection with the registration of one Chetak Scooter, before the competent authority. The learned Sessions Judge could have interfered with the order passed by the learned Magistrate if he was satisfied that the order thus passed by the learned Magistrate was incorrect, illegal or improper. The learned Sessions Judge in the order impugned quoted the submission made before him by the learned Counsel for the accused that there was no wrongful loss or wrongful gain to any side and moreover no damage or harm was done to anybody in body, mind, reputation or property. The learned Sessions Judge in the order impugned quoted the submission made before him by the learned Counsel for the accused that there was no wrongful loss or wrongful gain to any side and moreover no damage or harm was done to anybody in body, mind, reputation or property. But the learned Sessions Judge proceeded to reassess the materials instead of considering that aspect of the matter by observing as follows :- "but a little circumspection would reveal that the alleged act of the accused contains all these elements necessary to constitute a cheating under section 415, IPC". Through the order the learned Sessions Judge did not mention anything to indicate that there was any wrongful loss etc. caused to anybody. In fact he did not make any effort to show that the allegation raised against the accused/ petitioner actually came within the definition of cheating under section 415 of the IPC. On the otherhand, he proceeded to point out that if the deceitful act wilfully exposed any one to the risk of toss there was fraud and thereafter without referring to any statement or material or record proceeded to make certain observations by pointing out that the registration certificate was a property with the meaning of section 415 and if the person named in the registration certificate was non-existent then there would be no person who had any legal obligation to pay tax and other revenues on the basis of the registration Form 'b' and in this way he came to a further finding that the act of the accused/ petitioner amounted to deceive the registering authority and caused harm to the said authority. In my considered opinion, the learned sessions Judge has exceeded his jurisdiction by coming to such a conclusion. As I have already pointed out that in a revision, the superior Court is required to confine itself to the question whether the order which was challenged before it was bad in law and not that in the given facts and circumstances any other view was also possible. That apart, the above observation of the learned Sessions judge regarding the risk of loss etc. of the registering authority, was wholly uncalled for. That apart, the above observation of the learned Sessions judge regarding the risk of loss etc. of the registering authority, was wholly uncalled for. The order impugned does not give any impression that the learned sessions Judge based his observation on this point on the basis of the materials collected by the police at the time of investigation of the case. In one of the case laws relied on by the learned Sessions Judge in coming to the conclusion whether registration certificate was a property [in re : E. K. Krishnan-accused/ appellant, AIR (35) 1948 Madras 268], a Division Bench of the Madras High court observed about the acid test of fraud by observing that fraud was committed if any advantage was expected to the person who caused the deceit. In the instant case, there is no indication in the order impugned that the accused/ petitioner by the wrongful act attributed to the accused/petitioner, expected any advantage. ( 7 ) THUS on consideration of the submission made by the learned Counsel for the petitioner and the O. P. /state and also on perusal of the record I find that the order impugned should be set aside. In the result, the criminal revision is allowed. The judgment passed in Criminal Revision Case No. 13/88 by the learned Sessions Judge is hereby set aside. The order dated 10. 8. 1988 passed by the learned Judicial Magistrate discharging the accused and regarding the return of the seized articles is restored.