Uttarakhand High Court
Gulab Singh vs State Of Uttarakhand & Others on 17 October, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 1002 of 2022
Gulab Singh ..................... Petitioner
versus
State of Uttarakhand & others................ Respondents
Mr. B.M.Pingal, learned counsel for the writ applicant.
Mr. J.S.Virk, learned Deputy Advocate General for the State.
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Judgement dated: 17.10.2022
Hon'ble Sanjaya Kumar Mishra, J.
Upon hearing the learned counsel, the Court made the
following Order.
1. The petitioner, who is working as Assistant
Teacher (L.T. Grade) has filed this writ
application under Article 226 of the
Constitution praying to issue a writ of certiorari
quashing the First Information Report dated
18.05.2022, numbered as 0023 of 2022, for the
offence under Sections 420, 467, 468 and 471
of the Indian Penal Code, 1860, (hereinafter
referred to as 'the Penal Code)', SHO of Police
Station Augustmuni, District Rudraprayag.
Petitioner has also prayed for issuance of a writ
of mandamus directing the respondent nos. 1 &
2 not to arrest the petitioner and not to take
any coercive steps against him in pursuance to
the FIR lodged by the respondent no. 3.
2. Learned counsel for the petitioner at this stage
submits that the allegations against the
petitioner is that he has produced the B.Ed.
examinations certificate, which according to the
prosecution is forged. Learned counsel for the
petitioner further submits that even if it held
that the allegations made in the FIR as well as
by the Police in the charge-sheet are correct,
then also the offence under Section 467 of the
Penal Code is not made out as a school or
college certificate is not a valuable security
under Section 467 of the Code. Learned counsel
for the writ applicant has relied upon the
judgments "Bhausaheb Kali Patil vs. The State
of Maharashtra, reported in AIR 1981 SC 80
and on a unreported case of Hon'ble High Court
of Bombay, in Writ Petition No. 2281 of 2021, Dr.
Swapna Patkar vs. State of Maharashtra and
others, on its order dated 27.07.2021.
3. Learned Deputy Advocate General at this stage,
would submit that in the meantime, the
investigation of the case has been completed
and the charge-sheet has been submitted under
Sections 420, 467, 468, 471 of the Penal Code
and there is no reason to interfere with the
same.
4. Mr. Pingal, learned counsel for the writ
applicant would further submit that at this
stage, the petitioner does not want to press the
case of quashing of the FIR with respect to the
offence under Sections 420, 468 and 471 IPC.
5. In order to bring home the offence under
Section 467 of the Code, certain ingredients
have to be satisfied. It is appropriate to quote
the exact words of Section 467 IPC, which reads
as follows:
"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 1[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.
Similarly, Section 468 of the Code provides as follows:
468. Forgery for purpose of cheating.--Whoever
commits forgery, intending that the 1[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.
6. Thus, the essential ingredients that are
required to be satisfied by the prosecution in a
case under Section 467 of the Code, among
others, is that the documents' in one of the
kinds enumerated in the said Section. The
Section provides that whoever forges any
valuable security or an authority of the
specified kind or any documents purported to
be in acquittance on receipt acknowledging
payment of money, or an acquittance or receipt
for the delivery of any movable property or
valuable security.
7. It is apparent from the record that certificate
showing the petitioner to have cleared an
examination is not a will. It is not an authority
of a specific kind. It is also not any document
purporting to be an acquittance or receipt,
acknowledging of payment of money. It cannot
be said to be an acquittance or receipt for the
delivery of any movable property or valuable
security.
8. Section 30 of the Penal Code provides for the
definition of a valuable security. "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 any person acknowledges
that he lies under a liability, or has not a
certain legal right.
9. Thus, the importance aspect in the definition of
valuable security the documents where any
legal right is created, extended, transferred,
restricted, extinguished or released etc., In this
case, there is no legal right created in favour of
the petitioner. Hence, it cannot be held to be a
valuable security. Therefore, the offence under
Section 467 is not attracted in this case.
10. The offence under Section 468 of the Code
provides that whoever commits forgery for the
purpose of cheating shall be punished with
imprisonment for either description for a term
which may extend to seven years, as prescribed
therein.
11. Section 415 of the Penal Code provides for the
definition of cheating. It is provided therein that
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 not 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".
It is further explained that a dishonest
concealment of facts is a deception within the
meaning of this Section.
12. In order to bring an action of a person within
the meaning of the offense of cheating as
defined under Section 415 of the Code, the
following in ingredients must be satisfied:
If an accused-
(i) Fraudulently
(ii) Or dishonestly induces any person to
deliver any property to any person.
(iii) Or to consent any person shall retain any
property,
(iv) Or intentionally induces the person so
deceived to do or to omit to do anything
which would not do
(v) Or omit if he were not so deceived and,
(vi) Which act or omission causes or is likely
to cause damage or harm to that person;
(a) in body,
(b) mind
(c) reputation
(d) property.
13. Thus, in order to bring home the offence of
cheating the prosecution must prove that the
accused dishonestly induced a person to say, to
act or to do or to omit the act a certain way,
which has caused damage or harm to that
person, body, mind or the property. In this
case, it is not the case of the prosecution, in the
facts of this case, that the petitioner induced
anybody to deliver the property to any other
person or that he has caused the informant
harm in body, mind, reputation or property.
14. Thus, the offence of cheating is also not
attracted in this case. Consequently, the offence
under Section 468 of the Code is also attracted.
However, this Court is of the opinion that all
the offences under Sections 420, 465 and 471
of the Penal Code are made out.
15. In that view of the matter, writ petition is
allowed in part. The charge-sheet as far as it
relates to offence under Sections 467 and 468
are concerned, are hereby quashed. It is further
directed that while considering the charges, the
learned Magistrate in sisin of the matter shall
not consider that the charge-sheet as has been
submitted under the aforesaid offences.
However, the Magistrate shall reconsider the
material on record and take a decision whether
the offence under Section 465 of the Penal Code
is made out or not and accordingly shall frame
charges.
16. It is submitted by Mr. Pingal, learned counsel
for the petitioner that the petitioner has been
granted an interim protection by this Court vide
order dated 25.05.2022 and that the petitioner
has already been charge-sheeted and has not
been arrested by the Investigating Officer.
Therefore, the petitioner may be permitted to
avail the benefit of bail.
17. It is not disputed that all the offences
mentioned above, i.e., 420, 465 and 471 of the
Code are not punishable more than 7 years.
Hence, the petitioner is at liberty to surrender
before the learned Magistrate in sisin of the
matter within 15 days from the date receipt of
the copy of this Order and move for bail, which
shall be considered in accordance with law,
keeping in view the ratio decided by the Hon'ble
Supreme Court in Arnesh Kumar vs. State of
Bihar, (2014) 8 SCC 273, disposed on the same
day.
18. With the aforesaid observations, the writ
application stands disposed of.
(S.K.Mishra, J.)
(Grant urgent copy of this order as per Rules)
Kaushal
