Delhi High Court
Nakul Kohli vs State on 17 September, 2010
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1917/2010
NAKUL KOHLI .... Petitioner
Through Mr. Vijay Aggarwal and Mr.
Gurpreet Singh, Advocates.
versus
STATE ..... Respondent
Through Mr. Arvind Kr. Gupta, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 17.09.2010
This petitioner impugns the order dated 14th September, 2009,
passed by the Additional Sessions Judge upholding the order dated 20th
April, 2009 passed by the Chief Metropolitan Magistrate directing
framing of charge under Sections 420/471/120-B Indian Penal Code,
1860 (hereinafter referred to as IPC). The learned Additional Sessions
Judge has directed that charge should be also framed under Section 468
IPC. Order dated 14th September, 2009, refers to Section 468 A IPC. It is
apparent that this is merely a typographical or a clerical error as there is
no Section 468 A IPC.
2. Learned counsel for the petitioner submits that at best charges
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under Sections 419/420 IPC read with Section 120-B IPC are made out
and charge under Section 471 IPC cannot be framed without the original
document. It is further submitted that the Section 468 IPC is nothing but
an extension or aggravated form of Section 415/420 IPC and separate
charge should not be framed. Further Section 464 IPC is not attracted as
it is not alleged that the petitioner is a maker of a false document or was
involved in making of a false document. The petitioner relies upon
Shashi Lata Khanna Vs. State of Delhi 2005 (2) JCC 1220.
3. The petitioner is facing trial in FIR No.75/2002. Mr. Amarjeet
Singh, a farmer from Punjab got the said FIR registered alleging that he
had been duped by petitioner and Mr. Daljeet Singh Dhillon into handing
over to them Rs 12,500 as consideration upon their assuring him that
they would arrange for visa for him to go to Canada from the Canadian
High Commission. The complainant handed over his passport to them
upon their assurance and under their influence he did not even appear
for the interviews before the Canadian High Commission twice. The
complainant was shown his passport with the Canadian Visa sticker by
the two accused, asked for more money and asked him to purchase
5000 dollars. However, the complainant became suspicious when he
inquired from the Chandigarh Dollar Exchange Office and came to know
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that only 3000 dollars were permitted. Upon his asking, Daljit Singh
Dhillon and the petitioner faxed him a copy of the Visa. He was informed
by two others Gurmeet and Satnam that the visa was forged. The
complainant realized that he had been defrauded and accordingly
informed the police. After investigation the police has filed charge sheet.
4. Section 468 IPC refers to special cases of forgery in which the
document is made subservient to cheating, which is the main purpose of
the offender. Forgery for the purpose of the said section is a means to
an act, the act being wrongful acquisition or retention of property. It is
not necessary that the accused should have used the document itself for
the purpose of cheating. In view of the allegations, the direction of the
Learned Additional Sessions Judge to frame charge under section 468
IPC is correct. The question of punishment etc. need not be decided at
this stage as it is a matter to be gone into if and after the petitioner is
found to be guilty of having committed the offence under Section 468
IPC.
5. The police has relied upon copy of the Canadian Visa sent by fax
by the petitioner and Daljit Singh Dhillon to the complainant. It is
submitted by the petitioner that this is a secondary evidence and
without the original document i.e., the original passport with visa,
Crl.M.C.1917/2010 Page 3
charge under section 471 IPC cannot be framed. It pointed out that the
alleged forged visa is not affixed to the passport. However, as per the
case of prosecution the forged visa sticker was removed and this is
established from the gum, which can be felt and is present on the
passport. It may be noted that as per the prosecution the passport of
the complainant was seized from Daljeet Singh Dhillon. Learned trial
court and the learned Sessions Judge have come to the conclusion that
there is prima facie evidence that a forged visa sticker was prepared
with the intention to deceive the complainant and the accused had
obtained Rs. 12,500/- by committing fraud on the complainant that they
would get Canadian visa sanctioned for him. The complainant was
shown a Canadian visa sticker fixed on his passport, which was later on
removed. This visa was forged and faxed to the complainant.
6. The contention of the petitioner, that offence under Section 471
is not made out as the only incriminating document is merely a fax copy
and not the original document, cannot be accepted. This aspect has
been examined at length in Crl.M.C.No. 2029/2010 titled Nakul Kohli Vs.
State decided on 9th July, 2010. Nakul Kohli had raised a similar
contention in the case FIR No.71/2005. In the said case, the order
directing framing of charge under Section 471/474 IPC was challenged.
Crl.M.C.1917/2010 Page 4
Mukta Gupta J. has examined the provisions of 471 and 474 IPC and held
that with the advancement of technology with high quality scanner,
printer and computerized colour photocopiers, identical copies exactly
similar to the original can be produced. Excluding photocopying/printing
document from the ambit of a "false document" would be giving too
narrow a reading to the word 'makes' as used in Section 464 Firstly and
illustration (a) because the said word is not limited by the subsequent
words 'signs', 'seals' or 'executes'. The word 'makes' is, therefore, not to
be treated as 'signing' or 'executing' documents. It was observed that
the words used in the enactment are not superfluous and should be
given actual and required meaning. Reference was also made to
illustrations 'c' and 'd' to Section 464 IPC and the judgment of the
Bombay High Court in Emperor Vs. Krshtappa Khandappa AIR 1925
Bombay 327.
7. Reference can also be made to Section 631 IPC, which refers to
false documents or part of a document or electronic record.
8. The contention of the petitioner that photocopy was a secondary
evidence and, therefore, was not admissible, was rejected in Crl.M.C.
No. 2029/2010, Nakul Kohli v. State, as untenable because the
photocopy itself was the primary offending article. The fax, it was
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observed, would be the primary evidence for the purpose of trial. The
manner in which the said document is proved was not required to be
considered at the stage of framing of charge. Reliance placed on the
decision in the case of Shashi Lata Khanna (supra) was rejected as
misconceived. In the said case the accused had produced original forged
rent note before the Investigating Officer but the same was not seized
and thus the original forged rent note was not produced in evidence. It
was held that photocopy of the rent note in the absence of original is
inadmissible.
9. I entirely agree with the reasoning given by Mukta Gupta, J. in
Crl.M.C. 2029/2010 on 9th July, 2010.
10. In view of the aforesaid, the present petition is dismissed.
Observations made above are for disposal of the present petition, and
will not be construed as observation on merits binding on the trial court.
SEPTEMBER 17, 2010 SANJIV KHANNA, J.
NA
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