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PETITIONER: JIBRIAL DIWAN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       24/07/1997

BENCH: M.M. PUNCHHI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Having heard  learned counsel  for  the  appellant,  we called upon  Mr. D.M.  Nargolkar, learned  counsel  for  the state  of  maharashtra  requiring  him  make  submission  to support the judgment under appeal. He candidly admitted that he was  unable to do so we appreciate the fair stance he has adopted. In support of the same, we record our reasons.      Shri Azhar Hussain, PW 2 was a Minister at the relevant time in  the state of Maharashtra. He had planned a cultural show whereat  some artists  were invited.  The case  of  the prosecution is  that two  letter Exh.  28 and  Exh. 29  were prepared on  the letter  head  of  the  Minister,  whereupon invitations were  written to  invite Raja  Murad, and  Javed Khan PWs.  These letters were allegedly forged for these did not bear the signature of the Minister. The show was held on the day  scheduled. The  show was held on the day scheduled. The invites  came on  the basis  of  those  forged  letters, Later, a controversy was raised. the matter was investigated by the  CBI. Charges were laid against the appellant as also one  Patel,   accused  No.  2.  The  second  accused  stands acquitted  by  the  trial  court.  His  acquittal  has  been maintained by  the high  Court. The  allegation against  the acquitted accused was that he had forged those letters. That part of  the prosecution case on account of the acquittal of the second  accused has  become  sealed.  The  role  of  the appellant was that he had delivered those two forged letters to  the  recipients.  For  that  act,  even  though  he  was acquitted by  the trial  court, the High Court has convicted him for  offence under  Section 417,  Section 471  read with Section 465  IPC and  awarded him  sentences as disclosed in the judgment under appeal.      It bears  repetition that  the appellant  was  not  the forgerer  of  those  documents.  Section  471  enjoins  that whoever fraudulently  or dishonestly  uses  as  genuine  any document which  he knows  or has  reason to  believe to be a forged document,  shall be punished in the same manner as if he had  forged such  document.  Section  465  provides  that 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. Now the

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words ’dishonestly’  has been  defined to  mean that 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 been defined to  mean  that  a  person  is  said  to  d  a  thing fraudulently if  he does  that thing  with intent to defraud but not  otherwise. This  court in  Dr. S. Dutt state of U.P AIR 1966  SC 523  has explained the words intent to defraud’ as being  not synonymous  with words ‘intent to deceive’. It requires some  action resulting  in a disadvantage which but for the  deception the  person defrauded would have avoided. here by the delivery of forged letters, there is neither any wrongful gain  to anyone  nor any  wrongful loss to another. The act  of the  appellant could  not thus be termed to have been done dishonestly. Likewise the appellant cannot be said to have any intention to defraud because his action resulted in no  disadvantage to  any one  which but for the deception the person  defrauded would have acted  otherwise. The basic ingredients of  the act done ‘dishonestly’ or ‘fraudulently’ being missing,  the charge  under Section  471 read with 465 IPC was  totally misplaced  and the  High Court fell into an error in convicting the appellant on those charges.      So  far   as  the   conviction  under  Section  417  is concerned, the  High Court  has ignored  the  definition  of ‘cheating’ provided  in Section  415 IPC. The High Court has gone to  hold that  the accused  cannot be  held guilty  for offence under  Section 420 IPC because there was no cheating of any  valuable or property involved in the act or omission of the  appellant. It has just been concluded therefrom that the appellant  would, therefore, be guilty for offence under Section 417  IPC. What  is deducible  is that the High Court perhaps thought  that the  act or  omission of the appellant was not  covered in  the first part of offence of ‘cheating’ as defined  in Section 415 IPC. If so the act or omission of the accused  could not  in any  event fall in the later part because we  fail to  see how  the act  or  omission  of  the appellant caused  or was  likely to cause harm to any person in body  mind or  repetition. Thus  the  conviction  of  the appellant or  offence under Section 417 was also totally out of place and the verdict on that score deserve reversal.      For the  foregoing reasons,  ewe  unhesitatingly  allow this appeal,  set aside the impugned order of the High Court and acquit  the appellant  of all charges. Before concluding the matter,  we compliment Mr. Nargolkar for being candid in conceding the  acquittal of  the appellant at the outset for which we have added the above justification.