Kaushmbari Mal Devi Dass Cloth Merchants and ors. vs Amarjit Pal Singh Puri

K.P.S. Sandhu, J.

This is a petition under section 482 of the Code of Criminal Procedure for quashing the complaint, Exhibit P. 2, and all proceedings taken in pursuance thereof. The facts which gave rise to the petition are as under.

Amarjit Pal Singh respondent was married to Shrimati Krishna Rani (since deceased in the year 1969). She died an unnatural death in the year 1977. Vijay Kumar petitioner is the son of Devi Dass petitioner. Petitioners Nos. 2 and 3 with some others were running a partnership concern by the name and style of Messrs Kaushmbari Mal Devi Dass Cloth Merchants, 58 Shere Punjab Market, Patiala. Respondent Amarjit Pal Singh filed a complaint, the copy or which is annexed with the petition as Annexure P2, alleging therein that his wife Krishna Puri had a deposit of Rs. 7094.86 with the aforesaid firm at an interest of 18 per cent per annum and the total amount including interest came up to Rs. 20876.67 on 30.9.1983 It is farther alleged that after the death of Krishna Puri the respondent and his three minor children, namely, Neelam. Aldrin and Amarti were the legal heirs and thus entitled to the payment of the aforesaid amount that inspite of repeated requests and a registered notice having been served on the petitioners, no payment has been made to the respondent and his children; that another sum of Rs. 9571.78 of Neelam, the minor son of the respondent, was lying as a deposit with the firm on 3 Ist March, 1977; that in spite of a notice it has not been paid back by the petitioner, that a civil suit for rendition of accounts was filed by Neelam through the respondent and the same has been decreed against the petitioners and the appeal against the decree has been dismissed by the Additional District Judge, Patiala; that during the trial of the case Devi Dass petitioner made a statement that Rs. 7094.96 had been paid to Shrimati Krishna Puri before her death and Rs. 9591.78 to Neelam through the respondent; that the Civil Court came to a conclusion that no money had been paid to Neelam as alleged by Devi Dass petitioner and it is alleged in the complaint that by making a wrong entry about the payment in the account books the petitioners have committed offences punishable under sections 404, 406, 467, 120B, 469 and 471 read with section 34 of the Indian Penal Code. After recording preliminary evidence the learned Additional Chief Judicial Magistrate, Patiala, summoned the petitioners under sections 404, 406, 468 and 471 read with section 54 of the Indian Penal Code vide his order dated 29th November, 1983.

Mr. O.P. Goel, Advocate, learned counsel for the petitioners, has contended that even if the allegations as contained in Annexure P2 are taken at their face value no offence under the aforesaid sections is made out. Admittedly, the aforesaid amounts stood as deposits with the aforesaid firm for which the depositors were being paid interest at the rate of 18 per cent per annum. It is not the case of the respondent that the aforesaid amount was in possession of Shrimati Krishna Puri at the time of her death. It is not in understandable as to how the provisions of section 404 of the Indian Penal Code are attracted. Section 404 of the Indian Penal Code reads as under :

Dishonest misappropriation of property possessed by deceased person at the time of his death :

Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person''s decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine, and if the offender at the time of such person''s decease was employed by him as a clerk or servant, the imprisonment may extend to seven years".

As far as section 406 of the Indian Penal Code is concerned, it is not the case of the respondent that the money was lying with the petitioners as trust money. So, again, there would be no question of the applicability of section 406 of the Indian Penal Code. For this view support can be sought from a single Bench authority of this Court reported as Sat Narain and others v. The State of Punjab, 1973 C.L.R. 172,wherein it was held that when the money was deposited with the accused by the complainant on the understanding that the same could be utilised by the accused as his own property and that the complainant would get the equivalent amount back after a certain period no case of criminal breach of trust was made out. A similar view taken in a Single Bench authority of this court reported as Rajinder Lal V. State of Punjab, 1981 C.L.R 436, where it was held that since the money alleged to have been entrusted to the accused was not to be returned in specie it did not amount to entrustment.

The next allegation contained in the complaint that petitioner No. 2 in connivance with his coaccused made a wrong entry in his account books showing the payment of Rs. 7094.86 to Shrimati Krishna Puri deceased and of Rs. 9591.78 to Neelam minor through the respondent again does not attract the provisions of sections 468 and 471 of the Indian Penal Code. Sections 464, 470 and 471 of the Indian Penal Code read as under :

"464. Making a false document. A person is said to make all document

First : Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document. or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed 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; or

Secondly : Who, without lawful authority. dishonestly or fraudulently, by cancellation or otherwise alters a document in any material part thereof, after it has been made or executed 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, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon, he does not, know the contents of the documents or the nature of the alteration".

"470. Forged document : A false document made wholly or in part by forgery is designated "a forged document''.

"471. Using as genuine a forged document. 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".

There is no allegation that the petitioners dishonestly or fraudulently made, signed, sealed or executed a document or part of a document with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority they know that it was not made, signed, sealed or executed., At best, the entry about the payment of money to Krishna Puri deceased and to minor Neelam made in the account books by one of the petitioners may be a false entry, but by no stretch of imagination it can be brought within the definition of a forged document because the entry was made by Devi Dass petitioner and also signed by him. As is clear from the definition of a false document, false entry and forged entry are not synonymous terms. Support for this view can be sought from State v. Parasram, A.I.R. 1965 Rajasthan 9, wherein it was held that to bring the case within clause I of section 464 of the Indian Penal Code, it was necessary to establish that the accused intended to induce a belief that the document was made, signed, sealed or executed, by the authority of a person who did not make, sign, seal or execute it. To the same effect is the view taken in Motisinh Gambhirsingh v. The State, AIR 1961 Gujarat 117. Once it is found that the entry was not a forged one as envisaged by section 464 of the Indian Penal Code, the provisions of sections 468 and 471 of the Indian Penal Code would also not be attracted.

I am of the view that from the facts as given in the complaint no offence under the aforesaid sections is made out. It appears that the complaint has been filed only to pressurise the petitioners to discharge their civil liability and this is nothing short of an abuse of the process of law. Resultantly, I quash the complaint and all the proceedings taken in pursuance thereof.