- (1.) S. I. Jafri, J. This application has been filed by Someshwari Prasad under Section 482, Cr. P. C. praying that proceedings in criminal case No. (R. C. R. 55/85) State v. Mohd. Rais &anr. , under Section 120- B/420/467/468/471, Cr. P. C. pending in the Court of Special Magistrate (C. B. I.), Lucknow be quashed.
(2.) ACCORDING to prosecution a self-employment scheme was floated by the Govern ment specifying the categories of persons to be benefited under educated self employment through Banks. The person could be granted loans up to Rs. 25,000/- but the basic requirement was that the borrower should be matriculate and should be within 18 to 35 years of age. Consequently in order to be benefited from the aforesaid scheme, the applicant Someshwari Prasad and co-accused Mohd. Rais applied for a loan for Rs. 25,000/- each to Bank of India through the District Industries Centre, Allahabad in the month of March, 1985. The applicant Someshwari Prasad applied for loan to run a cut-pices cloth shop. The applicant while using fake quotations and vouchers in the name of M/s Kohinoor Vastralaya purported to be situated at Allenganj, Allahabad obtained the pay order number 785194, dated 26-4-1985 for Rs. 22,000/- against the sanctioned loan of Rs. 25,000/- from that Bank. He was also given Rs. 2,850 on April 26, 1985 against the sanctioned loan which was deposited in the Savings Bank Account No. 8531 opened on March 28,1985 in the same Bank. Likewise Mohd. Rais co-accused also applied for loan by filing fake quotations in the name of M/s Kohinoor Vastralays, Allenganij, Allahabad for opeining a cut piece business shop. Mohd. Rais also secured Rs. 25,000/- from Bank of India in two instalments. The case of the prosecution further is that both the accused had conspired together to obtain Rs. 25000/- each by opening the Account No. 1911 in Punjab and Sind Bank, Civil Lines, Allahabad and deposited the above pay order into the said account and the proceeds thereof were withdrawn by them through cheques. Both Mohd. Rais and the applicant gained pecuniary advantage by getting two loans and thus caused pecuniary loss to the Bank and cheated the Bank as above. I have heard Sri V C. Tiwari, learned Counsel for the applicant Someshwari Prasad, who has submitted that in this case, the offence of cheating and forgery is not at all made out as the mens rea is wanting in this case in so far as the accused are concerned. It was further submitted by him that no doubt both Someshwari Prasad and Mohd. Rais gained pecuniary advantage by using the vouchers purported to have been issued by M/s Kohinoor Vastralaya but they were duty bound to pay off the loans to the Bank by agreement with a discount of 25%. Under the circumstances, the liability of the accused in this case is only of a civil nature and in the absence of criminal intent, no offence of forgery or cheating is made out against the accused. To constitute an offence of cheating, a duty is cast on the prosecution to establish that the offender had the intention of cheating. The main ingredient of the offence of cheating is that there should be deception of a person so as to fraudulently or dishonestly induce that person to deliver any property to any person and thus in order to cheat a person, there must be dishonest and fraudulent intention. The word 'dishonestly' incorporated in Section 420, I. P. C. implies a deliberate intention to cause wrongful gain or a wrongful loss and under the circumstances, the mens rea has to be established by the prosecution which is lacking in this case. The learned Counsel for the applicant, further submitted that accused had no knowledge that the vouchers issued by M/s Kohinoor Vastralaya, Allenganj, Allahabad, were forged, else, in this case, it cannot be inferred on the basis of the prosecution allegations that the accused had intended to commit forgery. I have given my utmost consideration to this aspect of the matter and I am satisfied that the intention to commit forgery of the vouchers issued by M/s Kohinoor Vastralaya cannot be safely attributed to the accused.
(3.) THE learned Counsel also submitted that the main ingredient of Section 471, I. P. C. is that the accused had knowledge or had reason to believe that the documents were forged and a duty is also cast upon the prosecution to show that the accused had fraudulently or dishonestly used as genuine document which he know or had reason to believe to be forged. It was urged that thus the main ingredient of Section 471, I. P. C. cannot be said to have been establishedprima facie by the prosecution against the accused in this case. I have considered this aspect of the mater very carefully and I am satisfied that the prosecution allegations do not prima facie show that the accused had fraudulently or dishonestly used as genuine the vouchers issued by M/s Kohinoor Vastralaya by submitting them in the Bank having reason to believe that the vouchers filed by them, were forged documents. THE possibility that the accused were under bona fide belief that the said vouchers were genuine cannot be ruled out. The learned Counsel also submitted that looking into the facts and circumstances of the case, as alleged by the prosecution, it is difficult to hold that the accused were a party to a criminal conspiracy to commit the offence. Taking into account the ingredient of the offence of criminal conspiracy as mentioned in Sections 120-A and 120-B, I. P. C. the essential ingredients of the offence of conspiracy is the agreement to commit the offence. In the present case, the agreement to commit criminal conspiracy is wanting. I hold that in this case the ingredients of the offence of criminal conspiracy are not shown to have been established prima facie on the prosecution allegation itself against the accused.;