Dinesh Chandra vs State Of U.P. And Others
2011 Latest Caselaw 73 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Reserved 
 
Court No. - 6
 

 
Case :- CRIMINAL REVISION No. - 495 of 2011
 

 
Petitioner :- Dinesh Chandra
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Arvind Srivastava,Chandan Kumar
 
Respondent Counsel :- Govt. Advocate,Samit Gopal
 

 
Hon'ble Bala Krishna Narayana,J.

Heard Sri Arvind Srivastava, Advocate and Sri Chandan Kumar, Advocate, learned counsel for the revisionist and Sri G.S. Chaturvedi, Senior Advocate assisted by Sri Samit Gopal, learned counsel for the respondent no.3 and learned A.G.A. for the State.

This application in revision has been filed by the revisionist Dinesh Chandra against the order dated 8.11.2010 passed by Special Chief Judicial Magistrate, Agra in Complaint Case No.570 of 2010 by which he has summoned the revisionist to face trial for offences punishable under Sections 465, 467, 468 and 471 I.P.C.

Learned counsel for the respondents have stated at the bar that they do not want to file any counter affidavit and this application in revision may be finally disposed of at this stage.

Brief facts of the case as stated in the affidavit filed along with the memo of revision are that the revisionist claims that he was appointed as a General Worker in M/s Hindustan Lever Ltd., Etah Dairy, Etah, U.P. having its registered office at Hindustan Lever House, 165/166 Backbay Reclamation, Bombay-1 on 9.8.1982. The appointment letter was issued by the Factory Manager, R.S. Rana on behalf of the Company. The revisionist was confirmed by letter dated 22.11.1982 which was again issued by the Factory Manager, R.S. Rana (copies of the appointment letter and confirmation letter have been filed as annexure nos.1 and 2 to the affidavit). The undertaking, Etah Dairy was transferred to Lipton India and the services of all its employees including the revisionist stood transferred to the Lipton India Ltd. on the terms and conditions mentioned in the letter dated 11.5.1984 of the Vice President, Personnel of the Company (annexure no.3).

In the year 1994 Lipton India Ltd. got amalgamated with the Brooke Bond India and the revisionist by letter of the Managing Director, Lipton India Ltd. dated 4.3.1994 (annexure no.21) was informed that he had become an employee of Brooke Bond India Ltd.

In the year 1997 the Brooke Bond India Ltd. was transferred to Hindustan Lever Ltd. again and on 24.9.1999 the undertaking at Etah was sold by the Hindustan Lever Ltd to M/s Nutritia India Pvt. Ltd. and the services of all its employees stood transferred to M/s Nutritia India Pvt. Ltd. In August, 2003 M/s Nutritia India Pvt. Ltd. sold the Etah plant to M/s Anik Industries Pvt. Ltd. A dispute arose between the revisionist on one side and M/s Hindustan Lever Ltd. and M/s Nutritia India Pvt. Ltd. on the other side over the revisionist's entitlement to receive VRS fund under the settlement arrived at between the M/s Nutritia India Pvt. Ltd's., Etah, undertaking and its employees upon its sale to M/s Anik Industries Ltd., when the revisionist's employers denied that the revisionist was their regular employee. Thereafter, on 20.12.2007 the revisionist vide letter dated 20.12.2007 (annexure no.23) requested the Manager of M/s Nutritia India Pvt. Ltd. to return back his original documents. On 22.9.2004 (annexure no.24) an application was moved for conciliation by U.P. Majdoor Federation Branch Aligarh before the Labour Court. Objections were filed by the employer and rejoinder was filed on 16.8.2005 (annexure no.25) by the Federation. On 14.11.2005 the employers deliberately abstained from conciliation proceedings before the Labour Court on which date existence of industrial dispute was acknowledged.

On 18.7.2006 a reference was framed and forwarded to the labour court, Etah and registered as Adjudication Case No.193 of 2006, Dinesh Chandra Vs. Hindustan Lever Ltd. and others. On 31.12.2006 objections were moved by the employer and on 18.5.2007 the revisionist submitted his claim before the Labour Court (annexure no.30). Preliminary objections (annexure nos.31 and 32) regarding the existence of an industrial dispute were filed by the Hindustan Lever Ltd. and M/s Nutritia India Pvt. Ltd to which the revisionist gave his reply on 8.5.2007 supported by the documents (annexure no.33). Against the claim of the revisionist Hindustan Lever Ltd. and Nutritia India Pvt. Ltd. filed their respective written statements on 18.7.2007 (annexure nos.34 and 35). On the transfer application moved by the employers on 28.3.2008 the Adjudication Case No.193 of 2006 was transferred from Etah District to Firozabad on 12.4.2010 and registered as Adjudication Case No.26 of 2010. Thereafter, the Hindustan Lever Ltd. opposite party no.3 filed a complaint before the Special Chief Judicial Magistrate, Agra dated 25.5.2010 under Sections 420, 465, 467, 468, 471 I.P.C. against the revisionist which was registered as Complaint Case No.570 of 2010 (annexure no.38).

After recording the statement of Swapan Bhattacharya (annexure no.39) on behalf of the complainant the court below by the impugned order has summoned the revisionist to face trial.

Learned counsel for the revisionist vehemently urged that the impugned order has been passed in a routine and mechanical manner without any application of mind to the facts of the case and the materials on record.

He further submitted that once the Magistrate after going through the allegations made in the complaint and the statement of the complainant came to the conclusion that offence of cheating was not disclosed against the revisionist, he committed a patent error of law in proceeding to summon the revisionist under Section 468 I.P.C.

He next submitted that the cognizance taken by him of the offences under Sections 465 and 471 was clearly barred by limitation prescribed under Section 468 Cr.P.C. for the simple reason that the document which is alleged to have been forged by the revisionist is dated 9.8.1982 and the same had been filed by the revisionist before the Labour Court during the conciliation proceedings as far back as in the year 2004 and although the respondent no.3 complainant had full knowledge of the said document, the complainant never disputed its veracity or alleged the said document to be forged and fabricated either during the conciliation proceedings or even before the Labour Court in Adjudication Case No.193 of 2006 and the impugned complaint was filed by the opposite party no.2 at Agra containing absolutely false and vexatious allegations only after the adjudication case no. 193 of 2006 was transferred from Etah to Firozabad, with the sole mala fide intention of harassing the revisionist who is a poor workman and not in a position to defend himself in the face the might of his employers against the prosecution launched against him at Agra while he is residing at Etah and with a view to exert pressure upon him not to proceed any further with the adjudication case which has been instituted by the revisionist against the complainant.

Learned counsel for the revisionist further submitted that the allegations made in the complaint with respect to the offences punishable under Sections 465, 467, 468, 471 I.P.C. are vague and bare allegations which do not constitute or satisfy the ingredients of the said offences and the initiation of criminal process on the basis of such allegations amounts to miscarriage of justice and grave injustice to the revisionist.

He further submitted that the only allegation in the complaint with respect to the revisionist has been made by the complainant in paragraph 20 alleging that document dated 9.8.1982 is an outcome of forgery and the signature of Shri R.N. Ramanathan is forged. Under Section 463 I.P.C. forgery has been defined in which the intention to prepare a fraudulent document is sine qua non. The making of a forged document with an intent to cause damage or injury to any person or to support any claim is necessary for the offence of forgery. There is no such allegation that the revisionist made any false document with an intent to cause a damage or to support any claim. Making of a false document has been defined in Section 464 I.P.C. which is also not satisfied. There is no allegation that the revisionist dishonestly or fraudulently made the document dated 9.8.1982 with an intention of causing it to be believed that such document was made by the authority of a person by whom or by whose authority he knows that it was not made. Thus, it is clear that none of the ingredients of Section 463 or 464 I.P.C. are satisfied. So far as whether the document dated 9.8.1982 is a valuable security or it purports to be a valuable security or any legal right is created through it there is no such allegation in the complaint. So far as the Section 468 I.P.C. is concerned, the Magistrate has himself ruled out the offence of cheating.

Learned counsel for the revisionist lastly submitted that in case the court comes to the conclusion that the cognizance of the offences under Section 465 and 471 I.P.C. taken by the court below is barred by limitation then the complaint does not disclose any other offence against the revisionist and in that event the impugned summoning order is liable to be quashed.

Sri G.S. Chaturvedi, learned Senior Advocate submitted that from the allegations made in the complaint and the other materials on record it cannot be said that no offence against the revisionist is disclosed.

He further submitted that at the stage of summoning only prima facie case is to be seen and the disputed defence of the accused is not examined.

He next submitted that the documents which the revisionist has extensively relied upon in support of his submissions and which have been filed as annexures to the affidavit filed along with the memo of revision are yet to be proved in accordance with law and cannot be looked into at this stage as the truthfulness of the allegations made in the complaint can only be decided after the parties have lead their evidence and even at the stage of discharge under Section 245(1) Cr.P.C. after the complainant has lead his evidence under Section 244 Cr.P.C.

Sri Chaturvedi next submitted that a complaint cannot be quashed merely on the ground of mala fides or on the ground that the same has been filed as a counter blast to action taken by the accused with an intention to prevent an accused from prosecuting any case against the complainant unless the averments and allegations made in the complaint do not disclose commission of any offence by the accused. In the present case the complainant has come up with specific case that the revisionist had fraudulently forged his appointment letter which was never issued by the complainant company or signed by the Officer whose signatures the said letter is purported to contain and hence the court below did not commit any illegality or infirmity in summoning the revisionist to face trial for offences punishable under Section 465, 467, 468, 471 I.P.C. In support of his aforesaid submission Sri Chaturvedi placed reliance upon a Apex Court decision in State of Maharashtra Vs. Ishwar Priraji Kalpatri and others, 1996 (1) SCC 542.

I have very carefully examined the submissions by the learned counsel for the parties and perused the impugned order as well as the other materials brought on record and the case law cited on behalf of the parties.

The issue whether a criminal prosecution can be quashed on the ground of mala fides or for the reason that the same has been instituted as a counterblast to the action taken by the accused with an intention to prevent an accused from prosecuting any case against the complainant notwithstanding that the averments and allegations made in the complaint disclose commission of an offence by the accused is no longer res integra and stands concluded by the judgment of the Apex Court in State of Maharashtra Vs. Ishwar Priraji Kalpatri and others, 1996 (1) SCC 542. In paragraph 22 of the aforesaid judgment the Apex Court has held as hereunder:-

"22. In fact, the question of mala fides in a case like the present is not at all relevant. If the complaint which is made is correct and an offence has been committed which will have to be established in a court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for queashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant is launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not. Allegations of mala fides where also made in P.P. Sharma case against the informer. It was held by this Court that when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings."

Thus, in view of the above, the prosecution of the revisionist cannot be quashed merely on the ground of mala fides unless the revisionist is able to show that the averments made in the complaint do not disclose the commission of any offence by the revisionist or the cognizance taken was barred by limitation.

In order to appreciate the respective submissions advanced by the learned counsel for the parties and to examine whether the allegations made in the complaint even if they are taken on their face value in their entirety and accepted to be true constitute any offence and whether the cognizance taken by the learned Magistrate of the offences under Section 465 and 471 I.P.C. was barred by Section 468 Cr.P.C., it will be useful to extract the relevant provisions of the Indian Penal Code and the Code of Criminal Procedure. By the impugned order the revisionist has been summoned to face trial for offences punishable under Sections 465, 467, 468, 471 I.P.C. but the learned Magistrate by the impugned order had declined to summon the revisionist under Section 420 I.P.C. holding that at the stage of summoning commission of offence under Section 420 I.P.C. by the revisionist was not disclosed. Sections 465, 467, 468 and 471 I.P.C. read as hereunder:-

"465. Punishment for forgery.- Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

467. Forgery of valuable security, will, etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [ imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

468. Forgery for purpose of cheating.- Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

471. Using as genuine a forged [document or electronic record].- Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."

The offences of cheating and forgery have been defined under Sections 415 and 463 of I.P.C. and the same read as hereunder:-

"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 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".

463. Forgery.- [ Whoever makes any false documents or false electronic record or part of a document or electronic record, 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."

The essential ingredients to constitute an offence of forgery are that the accused must have made sign, sealed or executed a document or any part of it or made a mark denoting execution dishonestly or fraudulently with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or any authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed or who without lawful authority dishonestly or fraudulently by cancellation or otherwise alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person whether either by living or dead at the time of such alteration or who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his signature or any electronic record 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 electronic record or the nature of the alteration.

Section 465 of the Indian Penal Code provides that whoever commits forgery shall be punished with the imprisonment of either description for a term which may extend to two years or with fine or with both.

Essential ingredients of an offence under Section 471 I.P.C. are that the document should be forged by the accused and used by him as a genuine document knowing it to be forged or knowing or having reason to believe that it is forged and the accused has used it fraudulently or dishonestly. Section 471 I.P.C. provides whoever is convicted for having committed an offence under Section 471 I.P.C. shall be punished in the same manner as if he had forged some document or electronic record which means that the punishment upon conviction under Section 471 I.P.C. is the same which is prescribed under Section 465 I.P.C. for forgery i.e. two years or with fine or with both.

Thus, even if it is assumed that the complaint discloses offences under Sections 465 and 471 I.P.C. in that case the question arises that where the cognizance taken by the learned Magistrate of the aforesaid offences on 8.11.2010 was barred in view of the limitation prescribed under Section 468 Cr.P.C. Although in the complaint the date of the letter which is alleged to have been forged by the revisionist has not been disclosed but from the material brought on record the admitted position which emerges is that the allegedly forged document was prepared by the revisionist on 9.8.1982. The said document was filed by the revisionist before the Conciliation Officer during conciliation proceeding sometimes in year 2004 in which the complainant had admittedly participated. An offence under Sections 465 and 471 I.P.C. is complete as soon as the document which is alleged to be forged is filed or used as genuine. Thus, it can safely be assumed that the offence under Sections 465 and 471 were committed in the year 2004 and complainant had acquired knowledge about the said document as far back as in the year 2004 but the complaint in respect of the document in question alleging it to be forged was filed by the complainant on 25.5.2010 before the Special Judicial Magistrate, Agra and the cognizance was taken by the learned Magistrate on 8.11.2010.

Section 468 of the Code of Criminal Procedure stipulates that no court shall take cognizance of an offence specified under sub Section 2 after expiry of the period of limitation. Section 468(2) of Code of Criminal Procedure prescribes the period of limitation to be six months if the offence is punishable with fine only; one year if the offence is punishable with imprisonment for a term not exceeding one year and three years if the offence is punishable with the imprisonment for a term exceeding one year but not exceeding three years. Section 468(3) of Cr.P.C. states that for the purposes of Section 468 the period of limitation in relation to offences which may be tried together shall be determined with reference to the offence which is punishable with more severe punishment or as the case may be the most severe punishment.

Section 469 of the Code of Criminal Procedure provides that the period of limitation in relation to an offender shall commence on the date of the offence or where the commission of the offence was not known to the person aggrieved by the offence or to any public office, the first day on which such offence comes to the knowledge of such person or to any police officer which ever is earlier or where it is not known by whom the offence was committed the first day on which the identity is known to the person aggrieved by the offence or to the police officer making investigation into the offence which ever is earlier. Then there are Sections 470, 471, 472 and 473 Cr.P.C.. which deal with the situations under which time in certain cases is excluded for the purpose of calculation of limitation and the circumstances under which the court may take cognizance of an offence even after the expiry of period of limitation, if it is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice.

Thus, in the present case as far as the cognizance taken by the learned Special Magistrate of the offences punishable under Section 465 and 471 I.P.C. is concerned the same appears to be barred by the limitation prescribed under Section 469 Cr.P.C. The allegedly forged document was prepared in the year 1982 and filed in the year 2004 before the Conciliation Officer during conciliation proceeding between the revisionist and the complainants. There is not even a whisper of any allegation in the complaint regarding the date on which the document allegedly forged by the revisionist came to the knowledge of the complainant. There is neither any explanation in the complaint regarding the delay in launching the prosecution against the revisionist nor any prayer for condonation of delay. The complaint is absolutely silent with regard to the date on which the document in question was forged by the revisionist and the offence had been committed by him. Now, I proceed to examine whether the allegations made in the complaint fulfil the ingredients of offences under Sections 467, 468 and 471 I.P.C.

The necessary ingredients to constitute an offence under Section 467 I.P.C. are, apart from those necessary to constitute an offence under Section 465 I.P.C., are forging of a document purported to be -

(i) a valuable security,

b(i) will authority to adopt a son to give authority to any person, one to make or transfer a valuable security,

(ii) to receive principal, interest or dividend available on the valuable security,

(iii) to receive or deliver any money movable property or valuable security,

(iv) acquittance receipt for payment of money,

(v) acquittance or receipt or deliver of any movable property or valuable property and intention to deceive the deceived person.

Requisite ingredients to constitute an offence under Section 468 I.P.C. are:

(i) that the document in question is forged,

(ii) the accused forged it,

(iii) in forging he intended that it shall be used for cheating.

Learned counsel for the revisionist has vehemently urged that the complaint does not disclose commission of offences under Section 467 and 468 I.P.C. Substantiating his submissions further he referred to paragraph 20 of the complaint and asserted that since the learned Special Magistrate himself had come to the conclusion that offence under Section 420 I.P.C. was not made out against the revisionist meaning thereby that the allegations in the complaint as well as those made in the statement of the complainant recorded under Section 200 Cr.P.C. did not make out an offence under Section 415 I.P.C. against the revisionist which is a pre-requisite to constitute an offence under Section 468 I.P.C. the revisionist cannot be put to trial for the said offence.

He had further strenuously urged that the document which is alleged to be forged by the revisionist is not covered by any of the documents enumerated under Section 467 I.P.C. and hence, the revisionist could not have been summoned to face trial for the aforesaid offence as well.

The reply to the aforesaid submissions of the revisionist by the learned counsel for the complainant is that the appointment letter is a valuable security and to fortify his submission he has attracted the attention of this Court to the definition of the words 'valuable security' as given in Section 30 of the I.P.C. and has urged that forging an appointment letter shall amount to forging a valuable security.

In order to examine the contention of the learned counsel for the complainant Section 30 of I.P.C. which defines valuable security is reproduced here in below:-

"30. "Valuable security". The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right."

After examining the definition of valuable security the question which arises for consideration is that whether the document which is alleged to have been forged by the revisionist is covered by the definition of valuable security given under Section 30 of I.P.C. and whether the court below before taking cognizance of the offences under Sections 467 and 468 had examined the aforesaid aspect of the matter or not with reference to the allegations made in the complaint and other material on record.

I have very carefully gone through the impugned order but I do not find any such consideration.

In my opinion, before taking cognizance under the aforementioned offences it was incumbent upon the court below to have examined whether the the definition of valuable security as defined under Section 30 of the Indian Penal Code took within its fold the document which is alleged to have been forged by the revisionist in order to constitute an offence under Section 367 I.P.C. This having not been done the cognizance taken under Section 467 I.P.C. and the consequential issue of process to the revisionist to face trial under the aforesaid offence cannot be sustained.

The last question which arises for consideration is that whether the allegations made in the complaint and the statement of Swapan Bhattacharya recorded under Section 200 Cr.P.C. spell out an offence under Section 468 I.P.C. As already noticed, the court below was of the firm opinion that at the stage of taking cognizance the offence under Section 420 I.P.C. was not disclosed, meaning thereby that the court was not satisfied from the perusal of the allegations made in the complaint and the other materials brought on record that an offence under Section 420 I.P.C. was disclosed against the revisionist. Since one of the essential ingredient to constitute an offence under Section 468 I.P.C. is that the forged document should be intended to be used by the accused for cheating and in case the offence of cheating is not disclosed against the accused then the question will arise whether he can be summoned to stand trial for an offence under Section 468 I.P.C. Again the trial court has failed to apply its mind to the aforesaid contingency before taking cognizance under Section 468 I.P.C.

In view of the foregoing discussion, I am of the view that the impugned order cannot be sustained and is liable to be set aside and the matter requires reconsideration by the trial court as far as the cognizance taken by the court under Sections 467 and 468 I.P.C. is concerned.

For the aforesaid reasons, this application in revision is allowed. The order dated 8.11.2010 passed by Special Chief Judicial Magistrate, Agra is set aside.

The Special Chief Judicial Magistrate, Agra is directed to pass a fresh order in the matter in the matter in accordance with law and in the light of the observations made hereinabove.

The trial court if upon reconsideration of the allegations made in the complaint and the materials on record comes to the conclusion that prima facie offences under Sections 467 and 468 I.P.C. are made out against the revisionist in that case the court may pass fresh order taking cognizance under Sections 467 and 468 I.P.C. and in that event the court can further take cognizance of the offences under Sections 465 and 471 I.P.C. as well as in view of the provisions of Section 468(3) of the Code of Criminal Procedure and issue process accordingly.

The necessary exercise in this regard shall be completed by the court below within a period of one month from the date of production of certified copy of this order before him.

Order Date :- 7.3.2011

Bhaskar