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Judgment
The present application has been filed by the applicants invoking the inherent powers of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, "BNSS"), for quashment of the First Information Report (for short, "FIR"), vide Crime No.1249 of 2024, dated 25.10.2024, registered with Awadhutwadi Police Station, Yavatmal, Dist. Yavatmal, for the offences punishable under Sections 420, 465, 468, 471 read with Section 34 the Indian Penal Code, 1860 (for short, "IPC") and the charge-sheet in R.C.C. No.874 of 2025, pending before the learned Judicial Magistrate First Class, Court No.6, Yavatmal, for the offences punishable under Sections 465, 466, 471 read with Section 34 of the IPC.
A joint venture owned by the applicants was allotted a tender related to the Irrigation Department for construction of earthwork and structures of 89 to 92 km. of the Bembla Canal Project, Yavatmal. It is alleged in the FIR that during the tender process, the joint venture had annexed fourteen work experience certificates, out of which, four work experience certificates submitted along with the tender documents were alleged to be forged. Therefore, an FIR came be lodged against the applicants for the offences punishable under Sections 420, 465, 468, 471 read with Section 34 of the IPC. During investigation, it was revealed that even if the four experience certificates were not submitted with the tender documents, still the tender would have been allotted to the joint venture of the applicants. Therefore, Section 420 and 468 of the IPC were dropped. After completion of the investigation, charge-sheet came to be filed.
Learned Counsel for the applicants vehemently submitted that the applicants have not committed any offence. Even if the allegations leveled in the FIR are taken at their face value, no offence of forgery is made out against the applicants. It is also contended that the joint venture owned by the applicants has satisfactorily completed the work through their power of attorney holder. There is no complaint whatsoever from the Irrigation Department that the work done by the applicants is of inferior quality or that the work is not completed. The entire amount has been released by the Irrigation Department and there is no complaint whatsoever from the said department. All of a sudden, out of the blue, after ten years of completion of work, just because there were some irregularities in other contracts of the Bembla Canal Project, the applicants are being made a scapegoat in this case.
Learned Counsel for the applicants further submitted that the Technical Team of the Irrigation Department has already opined that even if those four work experience certificates, which are alleged as forged were not submitted, still the tender would have been awarded to the joint venture owned by the applicants. According to him, there was no intention on the part of the applicants to put the department at a wrongful loss or get wrongful gain for themselves. The alleged work experience certificates did not play any role in allotment of the tender to the joint venture. No wrongful loss is caused either to the State Government or to the Irrigation Department by virtue of those four work experience certificates.
It is further contended that the applicants did not submit the tender documents. According to the learned Counsel for the applicants, the applicants had executed a power of attorney in favor of one Mr. N.B. Krishnani, to look after the work of the joint venture, including submitting of the tender application. The applicants have no role in submitting the tender documents and the work experience certificates. The tender documents along with annexures were submitted by the power of attorney holder of the joint venture owned by the applicants viz. Mr. N.B. Krishnani. According to him, it is the case of the Irrigation Department itself that the said tender documents were submitted by the power of attorney holder, who has passed away. Therefore, the applicants cannot be held responsible for the alleged forged experience certificates. According to him, even if it is presumed that the said experience certificates are forged, the maker of the document shall liable for the same, and not the present applicants.
Learned Counsel for the applicants placed reliance on the judgment of the Supreme Court in the case of Jupally Lakshmikantha Reddy Vs. State of Andhra Pradesh and Another, [2025 SCC Online SC 1950], wherein the Supreme Court has held that there is nothing on record to show that the appellant had manufactured the alleged fake document which is a sine qua non to attract Section 465 of the IPC. The Supreme Court, by referring to its judgment in the case of Sheila Sebastian Vs. R. Jawaharaj and Another, [(2018) 7 SCC 581], has held that, to attract Section 464 of IPC, the prosecution must establish that the accused himself had made the fake document. No material connecting the appellant to making of the fake document has been adduced in the impugned charge sheet.
Learned APP for the State is fair in saying that no wrongful loss is caused either to the department or the exchequer, since even in the absence of those four work experience certificates, the joint venture owned by the applicants was eligible for allotment of tender. Learned APP submitted that though the experience certificates in question are not material, but still the applicants are liable for punishment for making forged documents. According to him, there is material on record which suggests that the departments who issued the experience certificates in question have stated that no record was found with them regarding the issuance of those certificates, which clearly demonstrates that the certificates in question are false. According to him, there is no merit in the case of the applicants and hence, he sought rejection of the application.
At the outset, it is to be noted that as per the prosecution case itself, even if those four alleged experience certificates would not have been submitted along with the tender form, the joint venture owned by the applicants was still eligible for getting the tender. Rather, the questionnaire put by the Investigating Officer to the Technical Committee of the Irrigation Department, Pune was answered by Chief Engineer of Pune, the Member of the Technical Committee supervising the tender process opining that even if those documents would not have been considered by the Committee, the joint venture owned by the applicants was still eligible for participating in the tender process.
Notably, the Irrigation Department has issued a satisfactory work completion report in respect of the work done by the joint venture owned by the applicants, which is a part of the charge-sheet itself. It is also further to be noted here that there is no complaint whatsoever from the Irrigation Department regarding the construction work done by the joint venture owned by the applicants. Rather, on satisfactory completion of the earthwork and structure of destination 89 to 92 km. of the Bembla Canal Project, the contract amount has been disbursed in favor of the joint venture of the applicants.
The State Government of Maharashtra suo moto directed the Anti Corruption Bureau to inquire into the irregularities in construction of all irrigation projects of Vidarbha Region. Therefore, an inquiry was conducted against various contractors for irregularities in projects of Vidarbha Region including the Bembla Canal Project, Tq. Babhulagaon, Dist. Yavatmal. The present case relates to one of those inquiries conducted by the Anti Corruption Bureau, wherein it was found that no wrongful loss was caused to the Irrigation Department or the State Government. The applicants completed the entire work to the satisfaction of the Irrigation Department. However, scrutiny revealed that there were four work experience certificates which were not issued by the concerned department. Only on this allegation, almost after 20 years, when applicant No.1 reaches the age of 80 years, the applicants are being prosecuted, where no loss is caused to anyone at all.
In this background of facts, let us see whether the allegations made against the applicants in the charge-sheet would constitute the offence of forgery.
Forgery is defined under Section 463 of IPC, which contemplates making of a false document with intent to cause damage or injury to the public. Making of a false document is defined under Section 464 of the IPC, which is reproduced as under.
“464.Making a false document — A person is said to make a false document or false electronic record—
First — 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 or executed,
Secondly— Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an 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 the nature of the alteration.”
Since the definition of "making a false document" is a part of the definition of "forgery", both the sections must be read together. Forgery means whoever makes any false document or a part of a document with intent to cause damage or injury to the public or to support any claim. The expression “making a false document” is defined under Section 464 of the IPC to mean that a person who dishonestly or fraudulently makes, signs or executes a document or part of a document is said to make a false document. To reach to the conclusion whether forgery is committed, one has to make a false document mentioned in any of the three clauses of Section 464 of the IPC, either dishonestly or fraudulently. The legislature has used the words “dishonestly” or “fraudulently” in all the three clauses of Section 464 of the IPC. These two adverbs, "dishonestly" and "fraudulently" are used alternatively indicating thereby that one excludes the other. Thus, the acts mentioned in these three clauses of Section 464 must be done either dishonestly or fraudulently.
Section 24 of the Penal Code defines "dishonestly" thus :
“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”.
“Fraudulently" is defined in Section 25 of the Penal Code thus :
“A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.”
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The term ‘fraud’ is not defined in the Code. The dictionary definition of ‘fraud’ is “deliberate deception, treachery or cheating intended to gain advantage”. The expression “defraud” involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss and it will include any harm whatsoever caused to any person in body, mind, reputation or such others. (See Dr. Vimla Vs. Delhi Administration, reported in (1962) SCC Online SC 172; Md. Ibrahim and Others Vs. State of Bihar and Another, reported in (2009) 8 SCC 75 and State of U.P. Vs. Ranjit Singh, reported in (1999) 2 SCC 617.
Here, it is the case of the prosecution itself that even if those four work experience certificates would not have been submitted by the joint venture owned by the applicants, still they were qualified for participating in the tender process. This itself shows that no wrongful loss or wrongful gain was caused either to the Irrigation Department or any other person by filing those alleged forged work experience certificates along with the tender form. It is also not the case of the prosecution that the alleged forged documents were filed with intent to deceive and to cause non-pecuniary injury or harm to any person in body or mind. Thus, it can be said that the applicants or their power of attorney holder did not file those four certificates either to secure any advantage or cause any financial loss or injury to the Irrigation Department. There is nothing in the entire charge-sheet which discloses that any wrongful gain was derived by the applicants or the applicants caused any wrongful loss to the Irrigation Department or the State Government by filing those alleged work experience certificates. There is no whisper in the entire charge sheet that the applicants caused deceit and/or injury to any person. This means that, even if it is presumed that those documents are forged, there is no dishonest intention or intention to commit fraud. The case in hand is bereft of ingredients of Section 464 of the IPC. Therefore, the applicants cannot be held liable for the offence of forgery.
In the case of Dr. Vimla (Supra), the Supreme Court while dealing with the case of forgery has observed that if the offender has neither benefited nor has caused any loss to anybody by forging the signature of another person, the offender is not liable for forgery. For ready reference, relevant paragraphs of the decision are reproduced here :
“ Now let us apply the said principles to the facts of the present case. Certainly, Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income-tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term.
In the result, we allow the appeal and hold that the appellant was not guilty of the offence under Sections 467 and 468 of the Indian Penal Code. The conviction and sentence passed on her are set aside. Fine, if paid, is directed to be refunded to the appellant.”
Here, even if the alleged forged work experience certificates would not have been filed by the joint venture owned by the applicants, still they were eligible to participate in the tender process. Thus, by filing those work experience certificates, neither the applicants are benefited nor the Irrigation Department or the State Government incurred any loss. As per the prosecution case itself, the Technical Committee of the Irrigation Department, Office of Chief Engineer, Pune, opined that filing of those alleged forged certificates was inconsequential to the result of allotment of the tender to the joint venture of the applicants. Therefore, it cannot be said that the applicants have committed forgery.
That apart, as per Section 464 of the IPC, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
Pertinently, the FIR reveals that the applicants had executed a power of attorney in favour of one Mr. N.B. Krishnani to look after the affairs of the joint venture, including submitting the tender form with the Irrigation Department and for participating in the tender process for allotment of the work of the Bembla Canal Project. The statement of Mrs. Aditi Shrikrushna Unde, Senior Accountant recorded by the Investigating Officer also reveals that the entire work of the tender was being looked after by Mr. Nanak Krishnani, the power of attorney holder, from 2003 to 2013. Thus, I find substance in the argument that the said tender along with annexures was submitted by Mr. N.B. Krishnani, power of attorney holder of the joint venture and the applicants had played no role. The charge-sheet reveals that the Investigating Officer investigated in this regard. The FIR depicts that the applicants were prosecuted on the basis of the implication of benefit assumed by the Investigating Officer that the applicants were the ones who were benefited and not the power of attorney. This assumption is factually incorrect and contrary to the material in the charge-sheet, since the prosecution itself has come up with a case that no benefit was caused to the joint venture by filing those alleged forged certificates. Be that as it may, it is settled that only the person who makes a false document is liable for forgery. The charge of forgery cannot be imposed on a person who is not the maker of the false document even if he is benefited. Whereas in this case, no benefit whatsoever was derived by the applicants. A penal provision cannot be expanded by using implications. Therefore, on the assumption made by the Investigating Officer, the prosecution against the applicants does not stand.
The Supreme Court in the decision of Sheila Sebastian (Supra) has held that it is only the maker of a false document who is to be held liable for forgery. Relevant paragraphs are reproduced here as under:
“ 19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e. making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
20.The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310 (DC), a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
In the concluding paras, the Supreme Court has further observed as under :
“25.Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.
26.The definition of “false document” is a part of the definition of “forgery”. Both must be read together. ‘Forgery’ and ‘Fraud’ are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that ‘false document’. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.
27.A reasonable doubt has already been thoroughly explained in the case of Latesh @ Dadu Baburao Karlekar Versus The State of Maharashtra, (2018) 3 SCC 66 wherein ‘reasonable doubt’ has been enunciated by this Court as “a mean between excessive caution and excessive indifference to a doubt, further it has been elaborated that reasonable doubt must be a practical one and not an abstract theoretical hypothesis.”
28.In this case at hand, the imposter has not been found or investigated into by the concerned officer. Nothing has been spilled on the relationship between the imposter and respondent no.1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the Courts to ensure that suspicion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
29.This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the accused, still the accused could not be convicted. The latches in the lopsided investigation goes to the root of the matter and fatal to the case of prosecution. If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal. In the process, the common man will lose confidence on the criminal justice delivery system, which is not a good symptom. It is the duty of the investigating officer, prosecution as well as the Courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice.
30.Although we acknowledge the appellant’s plight who has suffered due to alleged acts of forgery, but we are not able to appreciate the appellant’s contentions as a penal statute cannot be expanded by using implications. Section 464 of the IPC makes it clear that only the one who makes a false document can be held liable under the aforesaid provision. It must be borne in mind that, where there exists no ambiguity, there lies no scope for interpretation. The contentions of the appellant are contrary to the provision and contrary to the settled law. The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed and it is brought to our notice that already the competent Civil Court has cancelled the mortgage deed and the appellant got back the property.
31.In the light of above discussion, we find no reason to interfere with the order passed by High Court, resultantly appeals stand dismissed being devoid of merits.”
The charge-sheet suggests that the work of the tender was being looked after by Mr. N.B. Krishnani, the power of attorney holder and not the present applicants. There is nothing on record to suggest that the applicants made those false documents. Rather, the charge sheet is silent about who is the maker of the false documents and there is no material to show that in fact, the applicants prepared those four work experience certificates. Therefore, learned Counsel for the applicants is correct in saying that the applicants cannot be held liable for forgery.
So far as the offence under Section 471 of the IPC is concerned, as stated above, the entire work of the joint venture was being looked after by the power of attorney holder and not the applicants. Hence, the applicants cannot be made responsible. Even if the applicants submitted those documents, they cannot be said to have committed the offence under Section 471 of the IPC since there is no wrongful loss or deceit and injury to the State Government. Therefore, the essential ingredients “fraudulently” or “dishonestly”, which are also the ingredients of the offence punishable under Section 471 of the IPC are not made out against the applicants.
In view of the above said legal position discussed hereinabove, even if the allegations made in the FIR as well as in the charge-sheet are taken at their face value, they do not constitute any offence of forgery. It will be appropriate to refer to the decision in the case of State of Haryana and Others Vs. Bhajanlal and Others, [AIR 1992 Supp (1) SCC 335]. While dealing with an application under Section 482 of the Cr.P.C. (now Section 528 of BNSS), the Supreme Court has outlined seven guidelines, which are reproduced as under :
(1)where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2)where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3)where the controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4)where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5)where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6)where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7)where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
The case is in hand is squarely covered by guidelines ‘1’ and ‘3’ provided in the case of Bhajanlal (Supra). Therefore, this is a fit case for exercising the inherent powers of this Court for quashing the FIR and the charge-sheet, instead of directing the applicants, one of whom is more than 80 years old, to face the tedious process of trial after almost 20 years which may take further years together.
Therefore, the application deserves to be allowed. Hence, following order is passed.
ORDER
The application is allowed.
ii) The First Information Report vide Crime No.1249 of 2024, dated 25.10.2024, registered with Awadhutwadi Police Station, Yavatmal, Dist. Yavatmal and the charge-sheet in R.C.C. No.874 of 2025, pending before the learned Judicial Magistrate First Class, Court No.6, Yavatmal, for the offences punishable under Sections 465, 466, 471 read with Section 34 the Indian Penal Code, 1860, stand quashed and set-aside as against the present applicants.
iii) Pending applications, if any, stand disposed of.