# Rajesh Gandhi & Ors v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 937
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-gandhi-ors-v-state-of-u-p-anr-44009
- **Pages:** 10

## Headnote

Co-owner - Co-sharer - Registered power of attorney - Complaint case - Sections 468, 506 IPC -
Application under Section 156(3) Cr.P.C. - Civil suit - Permanent injunction - Dispute primarily civil in
nature - Forgery - False document - Section 464 IPC - Ingredients of offence - Abuse of process of court
- Jurisdiction under Section 482 Cr.P.C. - Quashing of complaint and summoning order.

## Text

5 All. Rajesh Gandhi & Ors. Vs State Of U.P. & Anr.

937
21. However, in case, the petitioner does not appear before the Court below within the
aforesaid period, coercive action shall be taken against him as per law.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Criminal Misc. Writ Petition No.- 17783 Of 2010

Rajesh Gandhi & Ors. ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Santosh Srivastava, Karuna Srivastava

Counsel for the Respondents:
Govt. Advocate, Devendra Saini

Criminal proceedings - Complaint case -Family settlement - Disputed property - Ancestral property -
Co-owner - Co-sharer - Registered power of attorney - Complaint case - Sections 468, 506 IPC -
Application under Section 156(3) Cr.P.C. - Civil suit - Permanent injunction - Dispute primarily civil in
nature - Forgery - False document - Section 464 IPC - Ingredients of offence - Abuse of process of court
- Jurisdiction under Section 482 Cr.P.C. - Quashing of complaint and summoning order.

1. The complainant is brother of applicant no. 1, whereas, applicant no. 2 is mother and applicant no. 3, 4, 5
and 6 are sisters of applicant no. 1 and complainant. The dispute, inter se, parties pertains to family
settlement pertaining to the disputed property. The applicants are assailing the order dated 6 September 2010
passed by the revisional court/Additional Sessions Judge Court No. 3, Saharanpur in Criminal Revision No. 309
of 2010 (Rajesh Gandhi and other vs. State of U.P. and others) affirming the order passed by the Chief
Judicial Magistrate, Saharanpur, in Complaint Case no. 589 of 2010 ( Rohit Gandhi vs. Rajesh Gandhi),
whereby, the applicants have been summoned in a complaint case for offence under Section 468, 506
IPC.The complainant/opposite party no. 2, filed an application under Section 156(3) Cr.P.C. for offence under
Sections 420, 467, 468, 471, 506 IPC which, the learned Magistrate treated as a complaint; upon recording
statements under Section 200 Cr.P.C. and examining witnesses under Section 202, Magistrate summoned the
petitioners herein, for offence under Section 468 and 506.In revision, the order of the Magistrate has been
affirmed.(Para 2-3)

2. The allegations against the petitioners is that on the strength of a registered power of attorney executed by
the mother and her daughters (petitioners no. 2 to 6) in favour of her son/brother (petitioner no. 1) in respect
of a property being plot no. 2 situated at Jai Prabha Nagar, Village Manakmau, Saharanpur, was being
attempted to be sold, despite the petitioners having knowledge that the complainant is a co-owner. It is
alleged that father of complainant died in 2003, the property in dispute being ancestral property, not yet
partioned, therefore, the complainant is having a share, which fact is in the knowledge of the other
petitioners.(Para 4)
938 INDIAN LAW REPORTS ALLAHABAD SERIES
Held:(Paras-11,12,26,27,38)

1. The question for determination is as to whether the allegations in the complaint constitute an offence under
Section 468 and 506 IPC or in the alternative is the dispute, inter se, parties primarily civil in nature. The
complainant alleged in his application that his father Hansh Raj Gandhi died seven years ago, he is youngest
amongst his siblings, father during his life time had not partioned the property, the complainant is residing
separately, further, it is alleged that in an attempt to deprive the complainant of his right and share in the
property, the petitioners conspired, thereby executing a power of attorney in favour of the petitioner no. 1 to
deal with the property. Petitioner no. 1 intends to sell the property to a third party, whereas, the petitioners
are aware and having knowledge that the complainant has a share in the property.

2. In the given facts and allegations made in the complaint would, in my opinion, not make out an offence
under Section 468. The complainant would himself allege that the petitioners/accused are co-sharers of the
disputed property and in respect thereof, some of the co-sharers (petitioners 2 to 6) executed general power
of attorney in favour of the first accused (petitioner no. 1). Merely not disclosing in the deed that the
complainant is also a co-sharer would not tantamount to forgery. The allegations in the complaint do not also
made out the ingredients of an offence under Section 506 IPC. Section 506 refers to intentional insult with
intent to provoke breach offence. The allegation in the complaint is that when the complainant enquried with
the petitioners about the power of attorney threatened to kill the complainant. The mother (petitioner no. 2)
is aged 86 years, the sisters (petitioner nos. 3 to 6) are in their sixties, all the petitioners reside outside
Saharanpur and some outside the State, therefore, the averments in the complaint, if assumed to be true, do
not makeout an offence under Sections 468 and 506 IPC. For the reasons stated above, petition is allowed.

Case Law discussed:

G. Sagar Suri and another vs. State of U.P. and others, 2000 (2) SC 636 - (para 14)
All Cargo Movers (I) Pvt. Ltd. vs. Dhanesh Badarmal Jain, 2007 (12) SCC 391 -(para 15)
V.Y. Jose vs. State of Gujarat, 2008 (16) Scale 167 - (para 16)
State of Madhya Pradesh vs. Awadh Kishore Gupta, 2004 Cri LJ 598 -(para 17)
State of Madhya Pradesh vs. Awadh Kishore Gupta, 2004 Cri LJ 598 -(para 17)
State of Bihar v. P. P. Sharma, AIR 1996 SC 309 - (para 18)
Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194 -(para 18)
State of Kerala v. O. C. Kuttan, AIR 1999 SC 1044 - (para 18)
State of U.P. v. O. P. Sharma, 1996 (7) SCC 705 - (para 18)
Rashmi Kumar v. Mahesh Kumar Bhada, 1997 (2) SCC 397 - (para 18)
Satvinder Kaur v. State (Govt. of NCT of Delhi), AIR 1996 SC 2983 - (para 18)
Rajesh Bajaj v. State NCT of Delhi, 1999 (3) SCC 259 - (para 18)
M. Krishnan vs. Vijay Singh, (2001) 8 SCC 645 - (para 20)
Mohd. Ibrahim and others vs. State of Bihar, (2009) 8 SCC 751 - (para 31)
Dr. Vimla vs. Delhi Administration, AIR 1963 SC 1572 - (para 32)
State of U.P. vs. Ranjit Singh, 1999 (2) SCC 617 - (para 33)

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Mrs. Swati Agrawal, learned counsel for the petitioner, Mrs. Archana Tyagi,
learned counsel for the second respondent and learned Additional Government Advocate.

2. The complainant is brother of applicant no. 1, whereas, applicant no. 2 is mother and
applicant no. 3, 4, 5 and 6 are sisters of applicant no. 1 and complainant. The dispute, inter se,
5 All. Rajesh Gandhi & Ors. Vs State Of U.P. & Anr.

939
parties pertains to family settlement pertaining to the disputed property. The applicants are
assailing the order dated 6 September 2010 passed by the revisional court/Additional Sessions
Judge Court No. 3, Saharanpur in Criminal Revision No. 309 of 2010 (Rajesh Gandhi and other vs.
State of U.P. and others) affirming the order passed by the Chief Judicial Magistrate, Saharanpur,
in Complaint Case no. 589 of 2010 ( Rohit Gandhi vs. Rajesh Gandhi), whereby, the applicants
have been summoned in a complaint case for offence under Section 468, 506 IPC.

3. The complainant/opposite party no. 2, filed an application under Section 156(3) Cr.P.C.
for offence under Sections 420, 467, 468, 471, 506 IPC which, the learned Magistrate treated as a
complaint; upon recording statements under Section 200 Cr.P.C. and examining witnesses under
Section 202, Magistrate summoned the petitioners herein, for offence under Section 468 and 506.In
revision, the order of the Magistrate has been affirmed.

4. The allegations against the petitioners is that on the strength of a registered power of
attorney executed by the mother and her daughters (petitioners no. 2 to 6) in favour of her
son/brother (petitioner no. 1) in respect of a property being plot no. 2 situated at Jai Prabha Nagar,
Village Manakmau, Saharanpur, was being attempted to be sold, despite the petitioners having
knowledge that the complainant is a co-owner. It is alleged that father of complainant died in 2003,
the property in dispute being ancestral property, not yet partioned, therefore, the complainant is
having a share, which fact is in the knowledge of the other petitioners.

5. The complainant-opposite party no. 2 would not dispute that a suit being Suit No. 145 of
2010 (Rohit Gandhi vs. Smt. Ram Pyari and others) was instituted by him before the Civil Judge
(Senior Division), Saharanpur seeking permanent injunction restraining the defendant/petitioners
from interfering in the peaceful possession of the disputed property, further, restraining the
petitioners herein, from selling the disputed plot on the strength of the power of attorney. It is
averred that complainant/plaintiff has 1/7 share in the property. The suit was contested by the
petitioner/defendants by filing written statement alleging that their father was the owner of the
property, but, during his life time by an oral family settlement partioned/settled the properties
amongst his legal heirs. The complainant is having no share in the disputed property, and since
partition he is residing separately.

6. In lieu of settlement their father transferred, by a registered sale-deed, a house, duly
recorded in municipal records being house no. 2/896, in favour of the complainant, therefore, in
view of the settlement effected by their father complainant would have no right or title or share in
the disputed property.

7. The facts, inter se, parties are not in dispute, the learned counsel for the opposite party
would not dispute that the complainant has already instituted a suit in respect of the property in
dispute; that a power of attorney was executed by other co-owners in favour of the petitioner no. 1.
The power of attorney would, however, not disclose that the complainant though being a legal heir
is having no share in the property. The absence of such an assertion, according to the complainant
would amount to forgery.
940 INDIAN LAW REPORTS ALLAHABAD SERIES
8. It is in this backdrop, the learned counsel for the petitioner would submit (i) the dispute
is purely civil in nature, (ii) the ingredients of offence under Section 468, 506 is not made out on
the face value of the complaint, (iii) criminal proceedings cannot become a mode for executing a
decree which is yet to see the light of the day, therefore, the criminal complaint being malicious,
vexatious, to bring about a settlement in respect of a property.

9. The learned counsel for opposite party no. 2/complainant would submit (i) the power of
attorney executed by the petitioners no. 2 to 6 in favour of the petitioner no. 1 ousted the
complainant, who is legal heir and a co-sharer of the property, (ii) the power of attorney has been
executed with an intention to transfer the property to a third party, thus would cause loss to the
complainant being a co-sharer of 1/7 share in the property, (iii) by excluding the name of the
applicant being legal heir and co-owner of the property would show the criminal intent on the part
of the petitioners to deprive the complainant of his share.

10. Rival submissions fall for consideration.

11. The question for determination is as to whether the allegations in the complaint
constitute an offence under Section 468 and 506 IPC or in the alternative is the dispute, inter se,
parties primarily civil in nature.

12. The complainant alleged in his application that his father Hansh Raj Gandhi died seven
years ago, he is youngest amongst his siblings, father during his life time had not partioned the
property, the complainant is residing separately, further, it is alleged that in an attempt to deprive
the complainant of his right and share in the property, the petitioners conspired, thereby executing a
power of attorney in favour of the petitioner no. 1 to deal with the property. Petitioner no. 1 intends
to sell the property to a third party, whereas, the petitioners are aware and having knowledge that
the complainant has a share in the property.

13. The application under Section 156(3) Cr.P.C. was filed on 18 January 2010 and
immediately thereafter on 20 January 2010, complainant instituted a suit before the competent civil
court on the same allegations, seeking decree for permanent injunction against the petitioners
herein.

14. Jurisdiction under Section 482 Cr.P.C. has to be exercised with great care, while
exercising jurisdiction, the court is not to examine the matter superficially. It is to be seen if a
matter, which is essentially of a civil nature, whether has been given a cloak of criminal offence.
The criminal proceedings are not a shortcut of other remedies available in law. Before issuing
process a criminal court has to exercise a great deal of caution, for the accused which is a serious
matter. The jurisdiction under this section has to be exercised to prevent abuse of the process of the
court or otherwise to secure ends of justice. (Vide: G. Sagar Suri and another vs. State Of U.P.
And others 2000 (2) SC 636)
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941
15. In All Cargo Movers (I) Pvt. Ltd. vs. Dhanesh Badarmal Jain 2007 (12) SCC 391
Supreme Court held that "for said purpose, allegations in the complaint petition must disclose all
necessary ingredients, therefor, ...... It is one thing to say that the Court at this juncture would not
consider the defence of the accused but it is another thing to say that for exercising the inherent
jurisdiction of this Court, it is impressible also to look into the admitted documents. Criminal
proceedings should not be encroached, when it is found to be mala fide or otherwise an abuse of the
process of the court. Superior courts while exercising its power should also strive to serve the ends
of justice."

16. In V.Y. Jose vs. State of Gujarat 2008 (16) Scale 167, wherein the Supreme Court in
paragraph 18 observed as follows:

A matter which essentially involves dispute of a civil nature should not be allowed
to be the subject matter of a criminal offence, the latter being not a shortcut of executing a decree
which is nonexistent. The Superior Courts, with a view to maintain purity in the administration of
justice, should not allow abuse of the process of court. It has a duty in terms of Section 483 of the
Code of Criminal Procedure to supervise the functionings of the trial courts.

17. In State of Madhya Pradesh vs. Awadh Kishore Gupta 2004 CRILJ 598 the Supreme
Court held as follows:

In proceedings instituted on complaint, exercise of the inherent powers to quash
the proceedings is called for only in a case where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the
offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash
the same in exercise of the inherent powers under Section 482 of the Code. It is not, however,
necessary that there should be meticulous analysis of the case before the trial to find out whether
the case would end in conviction or acquittal. The complaint has to be read as a whole. If it
appears that on consideration of the allegations in the light of the statement made on oath of the
complainant that the ingredients of the offence or offences are disclosed and there is no material to
show that the complaint is mala fide, frivolous or vexatious, in that event there would be no
justification for interference by the High Court.

18. In a proceeding instituted on complaint, exercise of the inherent powers to quash the
proceedings is called for only in a case where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. The substance of complainant is to be seen. If the allegations set
out in the complaint do not constitute the offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under
Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of
the case before the trial to find out whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on consideration of the allegations in the light
of the statement made on oath of the complainant that the ingredients of the offence or offences are
disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in
942 INDIAN LAW REPORTS ALLAHABAD SERIES
that event there would be no justification for interference by the High Court. (Refer:
Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma
(AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194), State of
Kerala v. O. C. Kuttan (AIR 1999 SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705),
Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of
NCT of Delhi) (AIR 1996 SC 2983) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259.

19. A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal
offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual
dispute, or dispute pertaining to a property, apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil
proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a
commercial transaction, breach of contract, or property dispute, for which a civil remedy is
available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is
whether the allegations in the complaint disclose a criminal offence or not.

20. In M. Krishnan vs. Vijay Singh (2001) 8 SCC 645 Supreme Court held that in a case
where the accused alleged that the transaction between the parties are of a civil nature and the
criminal court cannot proceed with the complaint because the factum of document being forged
was pending in the civil court, the Court observed:

"Accepting such a general proposition would be against the provisions of law
inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some
element of civil nature. However, in this case, the allegations were regarding the forging of the
documents and acquiring gains on the basis of such forged documents. The proceedings could not
be quashed only because the respondents had filed a civil suit with respect to the aforesaid
documents. In a criminal court the allegations made in the complaint have to be established
independently, notwithstanding the adjudication by a civil court.......If mere pendency of a suit is
made a ground for quashing the criminal proceedings, the unscrupulous litigants,
apprehending criminal action against them, would be encouraged to frustrate the course of
justice and law by filing suits with respect to the documents intended to be used against them
after the initiation of criminal proceedings or in anticipation of such proceedings. Such a
course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action,
have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the
allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings
which can be decided merely on the basis of the probabilities with respect to the acts complained
of."

21. Having noticed that the nature and scope of civil and criminal proceedings and the
standard of proof required in both matters is different and distinct, whereas in civil proceedings the
matter can be decided on the basis of probabilities, the criminal case has to be decided by adopting
the standard of proof of 'beyond reasonable doubt'.
5 All. Rajesh Gandhi & Ors. Vs State Of U.P. & Anr.

943
22. Let me first consider whether the complaint averments even assuming to be true make
out the ingredients of the offences punishable either under section 468 or section 506 IPC.

23. Section 470 defines a forged document as a false document made by forgery. The term
"forgery" is defined in section 463. Whoever makes any false documents with intent to cause
damage or injury to the public or to any person, or to support any claim or title, or to cause any
person to part with property, or to enter into express or implied contract, or with intent to commit
fraud or that the fraud may be committed, commits forgery.

24. Section 464 defining "making a false document" is extracted below :

"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 orpart of any electronic record;

(c) affixes any digital signature on anyelectronic record;

(d) makes any mark denoting the execution of adocument or the authenticity of the
digital signature, with the intention of causing it to be believed that such document
or a part of 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, executed or
affixed; or 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 alternation; 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 electronic record or the nature of the alteration.

Explanation 1- A man's signature of his own name may amount to forgery.

Explanation 2 - The making of a false document in the name of a fictitious person,
intending it to be believed that the document was made by a real person, or in the name of a
944 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased person, intending it to be believed that the document was made by the person in his
lifetime, may amount to forgery.

[Note: The words `digital signature' wherever it occurs were substituted by the
words `electronic signature' by Amendment Act 10 of 2009]."

25. The condition precedent for an offence under sections 467, 468 and 471 is forgery. The
condition precedent for forgery is making a false document (or false electronic record or part
thereof). This case does not relate to any false electronic record. Therefore, the question is whether
the accused (petitioners), in executing and registering the general power of attorney purporting to
sell a property, can be said to have made and executed false document.

26. An analysis of section 464 IPC shows that it divides false documents into three
categories:

27. The first is where a person dishonestly or fraudulently makes or executes a document
with the intention of causing it to be believed that such document was made or executed by some
other person, or by the authority of some other person, by whom or by whose authority he knows it
was not made or executed.

28. The second is where a person dishonestly or fraudulently, by cancellation or otherwise,
alters a document in any material part, without lawful authority, after it has been made or executed
by either himself or any other person.

29. The third is where a person dishonestly or fraudulently causes any person to sign,
execute or alter a document knowing that such person could not by reason of (a) unsoundness of
mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document
or the nature of the alteration.

30. In short, a person is said to have made a `false document', if (i) he made or executed a
document claiming to be someone else or authorized 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.

31. In Mohd. Ibrahim and others vs. State of Bihar (2009) 8 SCC 751 upon examining
Section 463, 467 to 471 IPC as noted, herein above, the Court while dealing with saledeeds
executed by the accused held:

"There is a fundamental difference between a person executing a sale deed
claiming that the property conveyed is his property, and a person executing a sale deed by
impersonating the owner or falsely claiming to be authorized or empowered by the owner, to
execute the deed on owner's behalf. When a person executes a document conveying a property
describing it as his, there are two possibilities. The first is that he bonafide believes that the
5 All. Rajesh Gandhi & Ors. Vs State Of U.P. & Anr.

945
property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming
it to be his even though he knows that it is not his property. But to fall under first category of `false
documents', it is not sufficient that a document has been made or executed dishonestly or
fraudulently. There is a further requirement that it should have been made with the intention of
causing it to be believed that such document was made or executed by, or by the authority of a
person, by whom or by whose authority he knows that it was not made or executed. When a
document is executed by a person claiming a property which is not his, he is not claiming that he is
someone else nor is he claiming that he is authorized by someone else. Therefore, execution of
such document (purporting to convey some property of which he is not the owner) is not execution
of a false document as defined under section 464 of the Code. If what is executed is not a false
document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the
Code are attracted.

32. The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is
"deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract
Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla vs. Delhi
Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression 'defraud'
thus:

"The expression "defraud" involves two elements, namely, deceit and injury to the
person deceived. Injury is something other than economic loss that is, deprivation of property,
whether movable or immovable, or of money, and it will include any harm whatever caused to any
person in body, mind, reputation or such others. In short, it is a noneconomic or nonpecuniary loss.
A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived.
Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding
loss to the deceived, the second condition is satisfied."

33. The above definition was in essence reiterated in State of UP vs. Ranjit Singh - 1999
(2) SCC 617.

34. The Penal Code however defines `fraudulently', an adjective form of the word `fraud',
in section 25, as follows : "A person is said to do a thing fraudulently if he does that thing with
intent to defraud but not otherwise". The term "fraudulently" is mostly used with the term
"dishonestly" which is defined in section 24 as follows : "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".

35. To `defraud' or do something fraudulently is not by itself made an offence under the
Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made
offences. These include:

(i)Forgery making or executing a false document (sec. 463 to 471 and 474).
946 INDIAN LAW REPORTS ALLAHABAD SERIES
36. In the given facts and allegations made in the complaint would, in my opinion, not
make out an offence under Section 468. The complainant would himself allege that the
petitioners/accused are co-sharers of the disputed property and in respect thereof, some of the cosharers (petitioners 2 to 6) executed general power of attorney in favour of the first accused
(petitioner no. 1). Merely not disclosing in the deed that the complainant is also a co-sharer would
not tantamount to forgery.

37. The allegations in the complaint do not also made out the ingredients of an offence
under Section 506 IPC. Section 506 refers to intentional insult with intent to provoke breach
offence. The allegation in the complaint is that when the complainant enquried with the petitioners
about the power of attorney threatened to kill the complainant. The mother (petitioner no. 2) is aged
86 years, the sisters (petitioner nos. 3 to 6) are in their sixties, all the petitioners reside outside
Saharanpur and some outside the State, therefore, the averments in the complaint, if assumed to be
true, do not makeout an offence under Sections 468 and 506 IPC.

38. For the reasons stated above, petition is allowed. The complaint and the consequent
summoning order is, hereby quashed.

39. Cost assessed at Rs. 5,000/- to be paid by opposite party no. 2 to the petitioners.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Criminal Revision No.- 1427 Of 2016

Abhishek Kumar ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Shiv Bahadur Singh

Counsel for the Opposite Parties:
G.A

Negotiable Instruments Act, 1881 Section 138 Negotiable Instrument Act, 1881 - Dishonour of cheque
- Insufficiency of funds - Penal provision - Construed strictly - Ingredients of the offence - Cheque
drawn on an account maintained by the accused - Discharge of a debt or other liability - Cheque returned
unpaid - Proviso to Section 138 - Cause of action - Cheque presented within the period of six months -
Written notice within thirty days - Failure to pay within fifteen days - Offence complete upon dishonour -
Prosecution deferred - Cognizance forbidden under Section 142 - Complaint filed before expiry of fifteen