Madhya Pradesh High Court

Santosh Bardiyas vs The State Of Madhya Pradesh on 1 December, 2021

Author: Vishal Dhagat

                                          [1]

THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
                   AT JABALPUR

      (SINGLE BENCH : Hon'ble Mr. Justice Vishal Dhagat, J.)

                    Criminal Revision No. 1484 of 2021

Santosh Bardiyas                                                      .....Applicant.
                                       Versus
State of Madhya Pradesh                                             .....Respondent.
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Presence :
       Shri Manish Awasthi, learned counsel for the applicant.

       Shri V.S. Choudhary, learned Panel Lawyer for the
respondent/State.
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                                     ORDER

(01/12/2021)

1. Applicant has filed this criminal revision against the order of

framing of charges dated 28.01.2021 passed by First Additional Sessions

Judge, Damoh in Sessions Trial No. 22/2021, whereby Trial Court has

framed charges against the applicant under Sections 420/120-B,

465/120-B, 466/120-B, 467/120-B, 468/120-B and 471/120-B of Indian

Penal Code.

3. Counsel appearing for the applicant submitted that applicant is

made accused on basis of memorandum of co-accused Kishore Dubey.

Applicant is running a photocopy shop in name of Ambey Photocopy at

Ambedkar Chowk, Damoh. He also uses computer and printer in his

shop. Applicant is said to have prepared forged lease and has also affixed [2]

insignia of Ashoka on it from computer. Kishore Dubey is said to have

forged the signature of authority. By doing so, Kishore Dubey and

applicant had wrongfully gained money, which was collected from

complainant. Counsel appearing for applicant submitted that whoever by

means of communication device or computer resource cheats by

personating shall be punished with imprisonment of either for a term

which may extend to three years and also liable to fine. It is submitted

that said act is punishable under Section 66-D of Information

Technology Act, 2000. Relying on the judgment in case of Smt. Amrita

Choudhary vs State of Madhya Pradesh passed in M.Cr.C. No.

2698/2015, dated 26.10.2015 and judgment of Apex Court in case of

Sharat Babu Digumarti reported in 2017, Cr.L.J. 977, counsel for the

applicant argued that as Information and Technology Act, 2000 is a

special enactment and act of applicant is covered under special

enactment then provision of Indian Penal Code, which is a general Act,

will not be applicable. Therefore, charges ought to have been framed

under Section 66-D of Information Technology Act, 2000. Learned trial

Court had committed an error in framing charges under Sections

420/120-B, 465/120-B, 466/120-B, 467/120-B, 468/120-B and 471/120-

B of Indian Penal Code against the applicant. On aforesaid ground,

learned counsel for the applicant prays for quashment of order dated

28.01.2021.

[3]

4. Panel Lawyer appearing for the State opposed the prayer made by

counsel for the applicant. It is submitted by him that distinct offences are

made against the applicant. The act of applicant is not covered by

Section 66-D of Information Technology Act, 2000. The judgments

relied upon by applicants are not applicable in the present case.

Therefore, criminal revision filed by the applicant deserves to be

dismissed.

5. The Apex Court in case of Sharat Babu Digumarti vs

Government of N.C.T, Delhi held that if act of accused is covered under

the provisions of special Act and also under Indian Penal Code then

provision of special act will have overriding effect and accused will get

out of the net of Indian Penal Code. Said law was laid down examining

applicability of Section 292 of Indian Penal Code and Section 67 of

Information Technology Act, 2000. Counsel for the applicant argued that

act of applicant is covered under Section 66-D of Information

Technology Act, 2000, therefore, charges under Section 420/120-B,

465/120-B, 466/120-B, 467/120-B, 468/120-B and 471/120-B of Indian

Penal Code ought not to have been framed and applicant will come out

of net of Indian Penal Code. Trial Court had committed an error of law

in framing charges under aforesaid Sections of Indian Penal Code.

6. Sections 420, 465, 466, 467, 468 and 471 of Indian Penal Code

read as under :

"420. Cheating and dishonestly inducing delivery of property--Whoever cheats and thereby dishonestly induces [4]

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.

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.

466. Forgery of record of Court or of public register, etc.-- Whoever forges a document or an electronic record], purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation.--For the purposes of this section, "register" includes any list, data or record of any entries maintained in the electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000.

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 [5]

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 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].

7. Section 2(k) and Section 66-D of the Information Technology Act,

2000 reads as under :

2(k) "computer resource" means computer, computer system, computer network, data, computer data base or software;

66.D Punishment for cheating by personation by using computer resource. -Whoever, by means for any communication device or computer resource cheats by personating, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees.

8. On perusing aforesaid provisions, it is found that act of applicant is

not completely covered by Section 66-D of Information Technology Act,

2000. Applicant has not cheated by personating from computer

resources. Applicant has created a forged document which was used for

purpose of cheating by another person. Such act is not covered under

Section 66-D of Information Technology Act, 2000. In view of same,

applicant does not get the benefit of the judgments cited by him.

Applicant has committed an act which is not covered under Section 66-

D of Information Technology Act, 2000. Act of the applicant is more

than that what has been described under Section 66-D of Information [6]

Technology Act and the same is covered under Sections 467, 468 and

471 of Indian Penal Code.