Manohar S/O Mahadeo Faye vs The State Of Maharashtra, Thr. ...
2021 Latest Caselaw 4574 Bom

                                  1          APL335, 336 and 358.16.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH : NAGPUR.

               CRIMINAL APPLICATION (APL) NO.335 OF 2016
                                 WITH
               CRIMINAL APPLICATION (APL) NO.336 OF 2016
                                 WITH
              CRIMINAL APPLICATION (APL) NO.358 OF 2016


 CRIMINAL APPLICATION (APL) NO.335 OF 2016

 Smt. Kantabai wife of Tejram
 Khedikar, Aged : Major,
 Occupation - Registered Money
 Lender, resident of Sakoli,
 District Bhandara.                        ... APPLICANT

                   // V E R S U S //

 1. The Police Station Officer,
    Police Station, Sakoli,
    Tahsil Sakoli,
    District Bhandara.

 2. Shri Rajendra son of Manoharrao
    Burde, Assistant Registrar,
    Cooperative Societies, Sakoli,
    Tahsil Sakoli, District Bhandara.   ... NON-APPLICANTS

 WITH
 CRIMINAL APPLICATION (APL) NO.336 OF 2016

 Smt. Geetabai wife of Sharasram
 Khedikar, Aged : Major,
 Occupation - Registered Money
 Lender, resident of Sakoli,
 District Bhandara.                         ... APPLICANT

                   // V E R S U S //

 1. The Police Station Officer,
    Police Station, Sakoli,
    Tahsil Sakoli,
    District Bhandara.


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                                      2                     APL335, 336 and 358.16.odt



 2. Shri Rajendra son of Manoharrao
    Burde, Assistant Registrar,
    Cooperative Societies, Sakoli,
    Tahsil Sakoli, District Bhandara.                    ... NON-APPLICANTS

 WITH
 CRIMINAL APPLICATION (APL) NO.358 OF 2016

 Manohar S/o Mahadeo Faye,
 Aged about : 68 years,
 Occupation : Moneylender,
 R/o Civil Lines, Ward no.5,
 Tahsil : Saoner,
 District : Nagpur.                                              ... APPLICANT

                   // V E R S U S //

 1. The State of Maharashtra,
    Through The Police Station Officer,
    Police Station Saoner,
    Tahsil : Saoner,
    District : Nagpur.

 2. The Assistant Registrar,
      Cooperative Societies,
      Tahsil : Saoner,
      District : Nagpur                                      ... NON-APPLICANTS
 -------------------------------------------------------------------------------------------
 Shri S. P. Bhandarkar, Advocate for applicants.
 Shri T. A. Mirza, Additional Public Prosecutor for Non-applicant No.1-
 State.
 Shri V. A. Thote, Advocate for non-applicant No.2.
 -------------------------------------------------------------------------------------------

                                 CORAM :-        Z. A. HAQ AND
                                                 AMIT B. BORKAR, JJ.

                                 DATED :-        12.03.2021


 ORAL JUDGMENT (Per Amit B. Borkar, J)





                                   3                 APL335, 336 and 358.16.odt

1. By these applications under Section 482 of the Code of

Criminal Procedure, the applicants in each of the application have

challenged registration of the First Information Report Nos.64/2016,

65/2016 and 108/2016 dated 25.4.2016 and 7.5.2016 respectively for

offences punishable under Sections 467, 468, 471 and 420 of the

Indian Penal Code and Sections 24, 31, 43, 44 and 46 of the

Maharashtra Money-Lending (Regulation) Act, 2014 (for short "Act of

2014").

2. The First Information Reports came to be registered

against each of the applicant with the accusations that the applicant

in each of the application had issued bogus receipt in Form no.8 to the

farmers and deprived them of their legitimate right under Loan

Waivers Scheme of the Government. It is alleged that in the

complaints filed by the farmers, it is stated that each of the applicant

failed to maintain record and entry of loan to farmers was not

mentioned in the Ledger Book, which is mandatory as per Section 24

of the Act of 2014. It is alleged that by issuing bogus receipt in Form

no.8 the applicant had cheated the farmers.

3. The applicants have, therefore, challenged registration of

the First Information Reports by filing present applications. This Court

issued notices to the non-applicants and also issued Rule in each of the

applications.

4 APL335, 336 and 358.16.odt

4. The non-applicant no.1 has filed reply in each of the

application stating that the applicants have cheated the farmers by

issuing bogus receipt in the form no.8 and by not maintaining entry of

loan granted to farmers, the applicants have deprived the farmers of

their legitimate right of getting benefit of loan Waiver Scheme.

5. We have carefully considered the allegations in the First

Information Report in the context of Section 420 of the Indian Penal

Code. The essential ingredients of the offence of "cheating" are as

follows:

"(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything, which he would not do or omit, if he were not so deceived; and

(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property."

To constitute an offence under Section 420 of the

Indian Penal Code, there should not only be cheating, but as a

consequence of such cheating, the accused should have

dishonestly induced the person deceived,

(i) to deliver any property to any person, or

5 APL335, 336 and 358.16.odt

(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).

Two main ingredients of Section 420 of the Indian Penal

Code are dishonest and fraudulent intention. The Penal Code has

defined the word "dishonestly" in Section 24 of the Indian Penal Code.

Section 24 of the Indian Penal Code reads as under:-

"24. 'Dishonestly'.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'."

The word "fraudulently" has also been defined

in Section 25 of the Indian Penal Code. Section 25 of the

Indian Penal Code reads as under:

"25. 'Fraudulently'.--A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."

6. It will be seen that there are two separate classes of acts,

which constitute offence. In the first place, he may be induced

fraudulently or dishonestly to deliver the property to any person or to

consent that any person shall retain that property. The second class of

acts set forth in the Section is the doing or omitting to do anything,

which the person deceived would not do or omit to do if he were not

so deceived. In the first class of cases, inducing must be dishonest or

fraudulent. In second class of acts, inducing must be intentional but,

6 APL335, 336 and 358.16.odt

not fraudulent or dishonest. Section 420 of the Indian Penal Code

applies in cases in which the property is transferred with the requisite

act or acts described in Section 415 of the Indian Penal Code.

7. For attracting ingredients of the offence under Section

420 of the Indian Penal Code, it is necessary that the material on

record should disclose that a person who is registering offence should

be dishonestly induced to deliver any property to any person. In the

facts of the present case, it appears that the case of the prosecution is

to the effect that due to failure to maintain register as per the

provisions of the Act of 2014, the farmers could not get benefit of

Loan Waiver Scheme. It is not the case of the prosecution that there

is no loan transaction between the applicants and the farmers. As

there is no dispute about the fact that there was loan transaction

between the farmers and the present applicants, we do not find that

there was any intention of applicants to cheat the farmers .

Therefore, in absence of fulfillment of essential ingredients of offence

under Section 420 of the Indian Penal Code, we find that the offence

under Section 420 of the Indian Penal Code is not made out against

the applicants, even if the allegations in the First Information Reports

are accepted as correct.

8. The next Section mentioned in the FIR is Section 468 of

the Indian Penal Code, which reads as under:

7 APL335, 336 and 358.16.odt

"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."

9. This is the aggravated form of forgery which is punishable

under Section 465 of the Indian Penal Code and is defined under

Section 464 of the Indian Penal Code. Forgery is defined under

Section 463 of the Indian Penal Code, which reads as under:

"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."

10. Section 464 of the Indian Penal Code speaks of making a

false document. The Section reads as under:-

"464. Making a false document.--A person is said to make a false document or false electronic record--

Firstly.--Who dishonestly or fraudulently--

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature or any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of a document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an

8 APL335, 336 and 358.16.odt

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 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 or an electronic record or to affix his digital signature on 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".

11. In short, a person is said to have made a "false

documents", if (i) he has made or executed a document claiming to

be someone else or authorised by someone else; or (ii) he has

altered or tampered a document or (iii) he has obtained document

by practicing deception or from a person not in control of his senses.

12. From the allegations in the First Information Reports

though it is alleged that the applicants have issued false receipts to

the farmers, if the reply of the non-applicant no.2 and the allegations

in the First Information Reports are accepted, it appears that only

because the applicants have not maintained register under the

provisions of Act of 2014, it cannot be said that the applicants have

issued forged receipts to the farmers particularly when there is no

allegation in the First Information Reports or material brought on

record that there was no loan transaction at all with the farmers.

Insofar as the offence under Section 468 of the Indian Penal Code is

concerned, it is one of the essential ingredients of forgery that forgery

9 APL335, 336 and 358.16.odt

must be committed for the pupose of cheating. Since the ingredients

of offence punishble under Section 468 of the Indian Penal Code are

not fulfilled, even if the allegations in the First Information Reports

are accepted as correct, we are satisfied that prosecution under

Section 468 of the Indian Penal Code cannot be continued against the

applicants.

13. Insofar as the ingredients of the offence under the

provisions of the Act of 2014 are concerned, since the allegations

made in the First Informatin Reports prima-facie disclose ingredients

of said offences, it is for the prosecution to prove the said offence at

the time of full-fledged trial. We cannot analyse and meticulously

consider the evidence and anticipate whether it will end up in

conviction or acquittal. This is not a stage to decide whether there is

any truth in the allegations made but to form an opinion whether on

the basis of the allegation a cognizable offence or offences alleged

has been prima facie made out. The guilt or otherwise of the

applicants can be proved only after conducting full-fledged trial. In

the circumstances, in our opinion, it is not proper for us to interfere

with the proceedings and quash the First Information Reports in

relation to offences under the provisions of the Maharashtra Money-

Lending (Regulation) Act, 2014. We, therefore, pass the following

order:

                                  10                 APL335, 336 and 358.16.odt




                                 ORDER

 (i)      First Information Report Nos. 64/2016, 65/2016 dated

25.4.2016 and First Information Report No.108/2016 dated 7.5.2016

for offences punishable under Sections 467, 468, 471 and 420 of the

Indian Penal Code are quashed and set aside.

(ii) Prayer for quashing of First Information Report Nos.64/2016

and 65/2016 and 108/2016 in relation to offences under Sections 24,

31, 43, 44 and 46 of the Maharashtra Money-Lending (Regulation)

Act, 2014 is rejected.

Rule is made partly absolute in the above terms.

                         JUDGE                                  JUDGE

 Ambulkar