- (1.) The present application under sections 401 and 482 of the Code of Criminal Procedure is directed against an order dated 21.2.1989 passed by the learned Sessions Judge, Andaman & Nicobar Islands at Port Blair under sections 399 and 401 of the Cr. PC in Criminal Revision Case No. 13 of 1988 setting aside the order No. 20 dated 10.8.1988 of the Judicial Magistrate, First Class, Port Blair discharging accused/petitioner in G.R. Case Nos. 491/ 259 of 1988.
(2.) The facts and circumstances leading to the instant application are as follows: The Assistant Secretary (Vigilance) of the Andaman & Nicobar Administration sent a confidential letter to the I. G. of Police, A & N Islands, Port Blair alleging malpractices adopted by the petitioner in the matter of procuring and disposal of a scooter. The background of such allegation was that against an allotment order BCp060084 dated 20.3.79 one Sri Suresh B. Bijalani of Block No. 42/9, East Patel Nagar, New Delhi was allotted with one 'Chetak' Scooter out of foreign exchange quota and the said scooter was duly supplied to Mr. Bijalani by M/s. Bajaj Auto Ltd., New Delhi. The sale of the scooter within a period of two years of its purchase was not permissible. The scooter got its registration No. AN 3012 at Port Blair on 26.7.81. On scrutiny it was found that various column of Form 'A' for payment of road tax and Form 'B' for registration of the vehicle were filled in by the accused/petitioner, while in Form 'A' the petitioner affixed his own signature on behalf of Mr. Bijalani in Form 'B', the petitioner, it was alleged, signed posing himself to be Mr. Bijalani. The signature in Form 'A' did not tally with the signature of Mr. Bijalani appearing in Form 'B'. The Insurance Policy of the said scooter shows the name of one Mr. Suresh was not found at the address given or in the Government Service at Port Blair. It was alleged that the present petitioner got it done. The scooter was subsequently sold to one Mr. R. V. Alagar Swamy, Contractor of 46, M. G. Market, Port Blair on 15.1.82 within one year of the original purchase from the dealer for Rs. 16,500/-. It was alleged that there was nexus between the petitioner and the said Alagar Swamy. It was further alleged that the petitioner forged the signature of Sri Bijalani for the purpose of registration of the vehicle. On receipt of the complaint a case was registered against the petitioner on 27.4.85. In course of the investigation, the Government Examiner of questioned documents gave the view that the handwriting on the aforesaid documents belonged to the petitioner. In the aforesaid facts and circumstances, the police on completion of the investigation submitted chargesheet under sections 417/ 468/471 of the IPC before the Chief Judicial Magistrate, Port Blair who transferred the case to the file of the Judicial Magistrate, First Class (1), Port Blair. The learned Trying Magistrate by his order dated 10.8.88 discharged the petitioner on the ground that no prima facie case on the materials on record justified framing of the charge under any of the provisions of the IPC. Thereafter on receipt of anonymous complaint against the order of the learned Magistrate, the impugned proceeding in revision under section 399 read with section 401 of the Cr. PC was started by the learned Sessions Judge (Revision Case No. 13/88). The learned Sessions Judge by the order impugned expressed the view that there was a prima facie case justifying framing of the charge and on such a finding set aside the order dated 10.8.1988 and restore the case to its original and number and transferred the case to the Court of CJM, Port Blair for trial according to law. On being aggrieved by the aforesaid order, the petitioner has come up before this Court in revision. It is contended that through the investigation no prima facie case against the accused/petitioner under any of the sections contained in the chargesheet i.e., sections 417, 420, 468 and 471 was made out.
(3.) The question before me was that the learned Sessions Judge, in the facts and circumstances of the case, justified in setting aside the order passed by the learned Trial Court ? The order passed by the learned Magistrate at the time of consideration of charge, noted the provisions under sections 468 and 471, IPC in view of the submission made by the learned A.P.P. before him that in the facts and circumstances of the case charge under sections 468 and 471 should be raised against the accused/petitioner. He observed that section 468, IPC provided punishment for the offence of forgery for the purpose of cheating. In this connection he also considered the ingredients to constitute the offence of cheating as laid down by the Apex Court, in the case of Ram Jas vs. State of U. P., reported in 1974 Cr. LJ (SC) 1811, by noting that there should be fraudulent or dishonest inducement of a person by deceiving him and the person so deceived should be induced to deliver any property to any person or to consent that any person should retain any property or that the person so deceived should be induced to do or omit to do anything he would not do or omit if he were not so deceived. In cases covered by deception for inducing any person or omit to do anything which he would not do or omit if he were not so deceived, there must be material to show that the act or omission caused or was likely to cause damage or harm to the person induced in body, mind, reputation or property. Regarding making of false document, learned Magistrate noted that such offence was committed when preparation of false document was made dishonestly or fraudulently with the further proof that such document was made with such intention that the document so forged would be used for the purpose of cheating. The learned Magistrate thereafter proceeded to consider the whole allegation raised against the present petitioner noting the allegation that the petitioner/ accused Sri Amar Singh Verma (S.I. of Police, A. & N.) committed malpractice in the matter of procurement of a scooter (being Bajaj Chetak bearing registration No. AN 3012) and that the accused/petitioner filled up Forms 'A' and 'B' for registration etc. of the scooter in the name of one Suresh B. Bijalani in his own handwriting and further he had signed in the name of the said Suresh who was unknown and who could not be traced out and in this way the said accused/ petitioner used the fictitious name of the said Suresh B. Bijalani and thus he forged documents and cheated the registration and taxing authority of A & N Islands by using the forged documents. Thereafter the learned Magistrate observed that it was an admitted position that the accused did not get the scooter registered in his own name but got it registered in the name of the said Suresh B. Bijalani and as such it could not be said that there was wrongful gain or advantage to the accused with corresponding wrongful loss to another and as such there could not be any question of causing or likely to cause damage or harm in body, mind, reputation or property to the registering or taxing authority or to any other person and as such no question as to deceive, forgery or cheating could arise. On these findings, the learned Magistrate passed the order of discharge.;