Santosh Kumar Vs State of Hp

2025:HHC:46560

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 4161 of 2013 Reserved on: 28.4.2026 Date of Decision: 15.6.2025

Santosh Kumar Chaudhary Versus		...Appellant
State of H.P. & anr.		...Respondents
Coram
*Hon’ble Mr Justice Rakesh Kainthl* *Whether approved for reporting?*¹	a,*Judge.* *Yes.*
For the Appellant :	M/s B.L. Advocate	Soni and Nitin Soni, s.
For Respondent No.1/State :	Mr Ajit Advocate	Sharma, Deputy General.
For Respondent No.2. :	Proceedi dated 25.	ngs abated vide order 8.2025.

¶5

Rakesh Kainthla, Judge

¶6

The present appeal is directed against the judgment of conviction dated 15.10.2013 and order of sentence dated 18.10.2013, passed by the learned Special Judge, Una, District Una, H.P., (learned Trial Court). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

¶7

1

¶8

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

¶9

2

¶10

2025:HHC:46560

¶11

Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 409, 420, 467, 468, 471, and 120-B of the Indian Penal Code (IPC) and Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act). It was asserted that a complaint was received from the Joint Secretary (Revenue), to the Government of Himachal Pradesh, against Ramesh Kumar Chaudhary, Naib Tehsildar (Sales) and others, stating that the land bearing Khasra Nos. 2915, 2946, 2950 and 2951, measuring 1-31-84 hectares, situated in Village Bhanjal, Tehsil Amb, District Una, H.P., belonging to the custodian department, was illegally sold by Ramesh Kumar Chaudhary by issuing a bogus sale certificate. The police registered the FIR (Ex.PW36/A). Rani Devi, Deputy Superintendent of Police (PW36), obtained the record, including a letter (Ex.PW1/A) regarding the evacuee property from Uttam Chand Kanungo (PW1), which was seized vide memo (Ex.PW1/B). Kirpa Ram (PW2) produced the letters (Ex.PW2/A and Ex.PW2/B), which were seized vide memo (Ex.PW2/C). Copies (Ex.PW2/D and Ex.PW2/E) of the Daily Credit Book were obtained from Naib Tehsildar (Sales), Shimla. Rani

¶12

3

¶13

2025:HHC:46560

¶14

Devi obtained the admitted handwriting of Ramesh Kumar (Ex.PW3/A1 to Ex.PW3/A4, and Ex.PW3/B and Ex.PW3/C) from Jamuna Devi (PW3). She obtained the copies (Ex.PW36/B and Ex.PW36/C). Ram Parkash (PW5) produced a letter (Ex.PW5/A) which was seized vide memo (Ex.PW5/B). Bhupinder Singh (PW6) produced the relevant record (Ex.PW6/A to Ex.PW6/F), which was seized vide memo (Ex.PW6/G). Parvesh Kumar (PW8) produced a letter (Ex.PW8/A) which were seized vide memo (Ex.PW8/B). Neena Thakur (PW9) produced the copies of the receipt register (Ex.PW9/A), which was seized vide memo (Ex.PW9/B). Deputy Superintendent of Police Rani Devi (PW36) also obtained a copy of the average sale value (Ex.PW9/B1) and letter (Ex.PW9/A1), which were seized vide memo (Ex.PW9/C). Gurbachan Singh, Senior assistant, Tehsil Office, Amb (PW25) produced the charge assumption report of the accused Santosh Kumar. Deputy Superintendent of Police, Rani Devi (PW36) also received the copy of the posting order (Ex.PW36/D) and notification (Ex.PW36/E). She obtained the specimen signatures of the accused Santosh Kumar (Ex. S1 to S12) before learned Judicial Magistrate First Class Mr Aman Sood. She found after the investigation that Ramesh Kumar Chaudhary had sold evacuee

¶15

4

¶16

2025:HHC:46560

¶17

property to the co-accused Madan Lal despite the prohibition and received ₹3,11,000/-. However, he had failed to deposit the amount of ₹3,11,000/- in the Government Treasury. Accused Santosh Kumar had forwarded the fake sale certificate to the Patwari, and accused Santosh Kumar sanctioned the mutation despite a complete ban on the transfer of evacuee property. Madan Lal sold the land to Bimla Devi after two months of the purchase, and in this manner, he caused loss to the State Government. Parthsarathi Mitra (PW37) accorded the prosecution sanction against Santosh Kumar (Ex.PW29/A). Sansar Chand (PW34) partly investigated the matter. He obtained the admitted handwriting of Santosh Kumar (Ex.PW10/A to Ex.PW10/D) vide memo (Ex.PW10/E). He also obtained specimen handwriting of Ramesh Kumar Chaudhary (Ex.S13 to Ex.S30). The specimen and disputed signatures were sent to RFSL, Dharamshala. Dr. Meenakshi (PW35) examined the disputed, admitted and specimen handwriting and issued the report (Ex.PW34/A) mentioning that specimen signatures and handwriting of Santosh Kumar (Ex.S1 to Ex.S12), his admitted handwriting (A1 to A12) and disputed handwriting (Q1 to Q12) were written by one person. The specimen signatures and

¶18

5

¶19

2025:HHC:46560

¶20

handwriting of Ramesh Kumar (S13 to S-30), admitted handwriting (A9 to A15) and questioned handwriting (Q13 to Q21) were written by one person. Sansar Chand obtained the mutation orders (Ex.PW6/B and Ex.PW6/C). He also obtained the original sale certificate vide order dated 27.7.2007 (Ex.PW31/A). He recorded the statements of witnesses as per their version and filed the charge sheet before the Court after the completion of the investigation.

¶21

Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, they were charged with the commission of offences punishable under Sections 420 read with Section 120-B of IPC and accused Santosh Kumar was charged with the commission of an offence punishable under Section 13(2) of the PC Act, to which they pleaded guilty and claimed to be tried.

¶22

The prosecution examined 37 witnesses to prove its case. Uttam Chand (PW1), Kirpa Ram (PW2), Jamuna Devi (PW3), Bhupinder Singh (PW6), Ashok Kumar (PW7) and Neena Thakur (PW9) produced the record. Pritam Chand Patial (PW4), Ram Prakash (PW5), Asha Nand Thakur (PW18), and Ramesh Chand (PW26) witnessed the recoveries. Parveen Kumar (PW8) sent the

¶23

6

¶24

2025:HHC:46560

¶25

sale letter. Mandeep Kumar (PW10) identified the signatures of Santosh Kumar and produced the record. Parveen Kumar (PW11) and Kuldeep Singh (PW20) did not support the prosecution's case. Charan Pal (PW12) and Ram Nath, Superintendent (PW17), proved the signatures of the SDM on the letter. Rakesh Kumar (PW13) had attested the affidavit of Ramesh Kumar. Jagdev Singh (PW14) had entered the mutation at the instance of Santosh Kumar. Bimla Devi (PW15) had purchased the land from the coaccused Madan Lal; however, the mutation was not sanctioned. Anayat Ali (PW16) had purchased the land from Ramesh Chand. Chander Bhan (PW19) proved the statement made by Ramesh Kumar. Sukhdarshan Singh (PW21) forwarded the complaint received from the Revenue Department. Nek Chand (PW22), Gurbax Singh (PW23) and Santosh Kumari (PW24) proved that no auction was conducted before the sale. Gurbachan Singh (PW25) went to Dharamshala and purchased 08 Marlas of land. O.P. Kant (PW27) sent a letter in response to the queries raised by the police. Gopal Chand (PW28) and Ramesh Chand (PW29) had put up the file pertaining to the evacuee property and obtained the sanction. Chanchla Devi (PW30) was the Pradhan of the Gram Panchayat who had passed a resolution against the sale of the

¶26

7

¶27

2025:HHC:46560

¶28

evacuee property. Rakesh Kumar (PW31) proved the documents annexed to the civil suit. Inspector Sher Singh (PW32) and Chuni Lal (PW33) recorded the statements of witnesses as per their version. Dr Meenakshi Mahajan (PW35) examined the handwriting. Sansar Chand (PW34) and Rani Devi (PW36) investigated the matter. Parthasarathi Mitra (PW37) granted the prosecution sanction to prosecute the accused Santosh Kumar.

¶29

The accused, Santosh Kumar, in his statement recorded under Section 313 of the Code of Criminal Procedure admitted that Ramesh Kumar Chaudhary was promoted and posted as Section Officer-cum-Naib Tehsildar (Sales) in the Relief and Rehabilitation Department. He also admitted that Ramesh Kumar was also looking after the work of Naib Tehsildar (Sales) in addition to his own duty. He admitted that Ramesh Kumar Chaudhary had written a letter for the attestation of the mutation, and he sanctioned the mutation based on the letter. He admitted that the land was sold to Bimla Devi but claimed that he was not aware of any ban imposed regarding the transfer of evacuee property. He did not know the average sale consideration. He denied the rest of the prosecution's case. He claimed that a false case was made against him. He did not

¶30

8

¶31

2025:HHC:46560

¶32

produce any evidence in defence. Co-accused Ramesh Kumar Chaudhary died during the proceedings pending before the learned Trial Court, and co-accused Madan Lal died during the pendency of the proceedings before this Court.

¶33

Learned Trial Court held that Ramesh Kumar Chaudhary had issued the sale certificate in favour of Madan Lal for ₹3,11,000/-. No money was deposited in the treasury, and no sale certificate was found in the record of Naib Tehsildar (Sales). Therefore, the sale certificate was fake. Accused Santosh Kumar was aware of the Government orders restricting the attestation of the mutation of the evacuee property located in Himachal Pradesh, but he had attested the mutation and registered the sale deed in favour of Bimla Devi. Gurbachan Singh (PW25) had also purchased the evacuee property, but his mutation was not sanctioned. The prosecution proved two sale letters (Ex.PW31/B and Ex.PW13/C). The accused Naresh Kumar did not verify the correctness of these documents and proceeded to attest the mutation and register the sale deed. This showed that he had entered into a conspiracy with the co-accused. He had misused his position to benefit the accused Madan Lal. He had registered the sale deed in favour of Bimla Devi for an amount less than the

¶34

9

¶35

2025:HHC:46560

¶36

average sale value. The sanction was given after proper application of mind. Hence, the learned Trial Court convicted and sentenced the accused as under: -

¶37

Conviction	Sentence
Section 420 of IPC	To undergo rigorous imprisonment for one year, pay a fine of ₹20,000/- and, in default of payment of the fine, to undergo simple imprisonment for six months.
Section 120-B of IPC	To undergo rigorous imprisonment for three months, pay a fine of ₹1,000/- and, in default of payment of the fine, to undergo simple imprisonment for fifteen days.
Section 13(2) of the PC Act, 1988	To undergo rigorous imprisonment for one year, pay a fine of ₹10,000/- and, in default of payment of the fine, to undergo simple imprisonment for one month.

¶38

All the sentences were ordered to be run concurrently.

¶39

Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court failed to properly appreciate the material on record. The prosecution had failed to prove its case beyond a reasonable doubt. The accused Santosh

¶40

10

¶41

2025:HHC:46560

¶42

Kumar had received the sale certificate during the discharge of his official duties, and he had attested the mutation in routine without any suspicion. The Patwari had entered the mutation, and Kanungo had verified it, but they were not prosecuted. The appellant was discharging the quasi-judicial authority, and he was entitled to the benefit of Section 3 of the Judges Protection Act. The basic ingredients of the commission of an offence punishable under Section 420 of the IPC, read with Section 120-B of the IPC, were not satisfied. No witness had deposed regarding any meeting of minds beetween the accused persons. Ramesh Kumar Chaudhary had sworn an affidavit before the Civil Court that the sale certificate had been issued by him while discharging his official duties. This certificate was ignored by the learned Trial Court. The prosecution sanction was not properly accorded. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

¶43

I have heard M/s B.L. Soni and Nitin Soni, learned counsel for the appellant/accused, and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State.

¶44

11

¶45

2025:HHC:46560

¶46

Mr B.L. Soni, learned counsel for the

¶47

appellant/accused, submitted that the learned Trial Court erred in appreciating the material on record. Co-accused Ramesh Kumar Chaudhary had sworn an affidavit that he had issued the sale certificate in his official capacity. The accused was not required to verify the correctness of the documents produced before him. All acts were performed in the discharge of the official duties and valid sanction under Section 197 of the Cr.PC. had not been obtained in the present case. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

¶48

Mr Ajit Sharma, learned Deputy Advocate General for the respondent No.1/State submitted that Ramesh Kumar Chaudhary had no jurisdiction to issue the sale certificate. The Govt had issued instructions not to register the sale deeds regarding the transfer of evacuee property. These instructions were in the knowledge of the accused Santosh Kumar, and he had refused to attest to the mutation of Gurbachan Singh (PW25). The conspiracy cannot be proved by direct evidence, but the circumstances surrounding the transactions have to be seen to infer the conspiracy. All the accused were acting in concert,

¶49

12

¶50

2025:HHC:46560

¶51

which was sufficient to show that they were acting in pursuance of the conspiracy. Learned Trial Court had taken a reasonable view while convicting the accused, and no interference is required with the judgment passed by the learned Trial Court. Hence, he prayed that the present appeal be dismissed.

¶52

I have a given considerable thought to the submissions made at the bar and have gone through the records carefully.

¶53

It was not disputed that the sale certificate was issued by Ramesh Chand. The prosecution relied upon the affidavit (Ex.PW13/A) executed by Ramesh Kumar, in which he had stated that the sale certificate dated 20.10.1999 was issued by him in favour of Madan Lal in the capacity of being a managing Officer/Naib Tehsildar (Sales). The learned Trial Court proceeded on the basis that the sale certificate issued by Ramesh Chand was a fake document because the amount of ₹3,11,000/- was not deposited in the treasury, and no such sale certificate was found in the record.

¶54

The term forgery has been defined in section 463 of the IPC as under:

¶55

13

¶56

2025:HHC:46560

¶57

"463. Forgery.--Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury], to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

¶58

It is apparent from the definition that a person has to

¶59

make a false document before he can be said to have committed forgery. Making a false document is defined in Section 464 of the IPC. It reads as follows:

¶60

464. Making a false document .—A person is said to make a false document or false electronic record—

¶61

First .—Who dishonestly or fraudulently—

¶62

( a ) makes, signs, seals or executes a document or part of a document;

¶63

( b ) makes or transmits any electronic record or part of any electronic record;

¶64

( c ) affixes any electronic signature on any electronic record;

¶65

( d ) makes any mark denoting the execution of a document or the authenticity of the electronic signature,

¶66

with the intention of causing it to be believed that such document or part of a document, electronic record or electronic 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

¶67

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

¶68

14

¶69

2025:HHC:46560

¶70

electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

¶71

Thirdly .—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic 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.

¶72

It was laid down by the Hon’ble Supreme Court in

¶73

Mohammed Ibrahim versus State of Bihar 2009 (8) SCC 751 that the prosecution is required to prove that the accused had forged a document by creating a false document to establish the offence of forgery. A false document is executed claiming to be executed by someone else or authorised by someone else, or a document is tempered or signatures are obtained by practising deception. It was observed:-

¶74

“ [10] An analysis of section 464 of the Penal Code shows that it divides false documents into three categories:

¶75

10.1) 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 a 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.

¶76

10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful

¶77

15

¶78

2025:HHC:46560

¶79

authority, after it has been made or executed by either himself or any other person.

¶80

10.3) 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 because of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

¶81

[11] 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 authorised by someone else; or (ii) he altered or tampered with a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.”

¶82

In the cited case, the prosecution alleged that the accused had executed a sale deed regarding the property over which he had no right. It was held by the Hon’ble Supreme Court that there is a distinction between a document whose contents

¶83

are false and a document which is itself false within the definition of Section 464 of IPC. A document containing a false averment does not attract the provisions of Criminal Law, and the accused cannot be held liable for executing the sale deed by claiming to be the owner when he was not the owner. It was observed:-

¶84

“ [12] The sale deeds executed by the first appellant clearly and obviously do not fall under the second and third categories of 'false documents'. It, therefore, remains to be seen whether the claim of the complainant that the

¶85

16

¶86

2025:HHC:46560

¶87

execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. 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 authorised or empowered by the owner to execute the deed on the 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 bona fide believes that the 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 the 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 a 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 that is not his, he is not claiming that he is someone else, nor is he claiming that he is authorised by someone else. Therefore, execution of such a document (purporting to convey some property of which he is not the owner) is not an 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 is attracted”.

¶88

In Mir Nagvi Askari Vs CBI 2009 (15) SCC 643, the

¶89

accused was charged with making false entries in the record of

¶90

the bank. It was laid down by the Hon’ble Supreme Court that

¶91

17

¶92

2025:HHC:46560

¶93

making wrong entries by itself will not attract criminal liability unless it is proved that the document was false within the meaning of Section 464 of IPC. It was observed:-

¶94

“ [229] A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such a document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly, the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.

¶95

[230] The second criterion of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion, the second criterion of the said section is also not applicable to the present case.

¶96

[231] The third and final condition of Section 464 deals with a document, signed by a person who, due to his mental capacity, does not know the contents of the documents which were made, i.e., because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably, therefore, the accused before us could not have been convicted for the making of a false document.

¶97

[232] The learned Special Judge, therefore, in our opinion, erred in holding that the accused had prepared a false document, which clearly, having regard to the provisions of the law, could not have been done.

¶98

[233] Further, the offence of forgery deals with the making of a false document with the specific intentions enumerated therein. The said section has been reproduced

18

2025:HHC:46560

below.

"463. Forgery.--Whoever makes any false documents or electronic record part of a document or electronic record with, intent to cause damage or injury], to the public or any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

¶103

[234] However, since we have already held that the commission of the said offence has not been convincingly established, the accused could not have been convicted for the offence of forgery. The definition of "false document" is a part of the definition of "forgery". Both must be read together. [ Dr. Vimla v. Delhi Administration, 1963 Supp2 SCR 585 ].

¶104

It was further held that in the absence of the

¶105

document being forged, a person cannot be convicted of the commission of an offence punishable under Section 471 of the

¶106

IPC. It was observed: -

¶107

“ [235] Accordingly, the accused could not have been tried for an offence under Section 467, which deals with forgery of valuable securities, will, etc. or Section 471, i.e., using as genuine a forged document or Section 477-A, i.e, falsification of accounts. The conviction of the accused for the said offences is accordingly set aside”.

¶108

This question was also considered in Sheila Sebastian

¶109

versus R Jawaharaj & Anr ETC. 2018 (7) SCC 581, and it was held that unless the ingredients of Section 464 of IPC are satisfied, a person cannot be convicted of the commission of an offence

¶110

19

¶111

2025:HHC:46560

¶112

punishable under Section 465 of IPC. It was observed: -

¶113

“[ 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 at 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 the 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 the 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”.

¶114

In the present case, the prosecution never asserted

¶115

that Ramesh Chand had executed a document with the intention of causing it to be believed that such a document was made or executed by some other person or by the authority of some other person, or he had altered the document after it was executed or had caused anyone to sign, execute or alter such a document. Therefore, the essential ingredient of the forgery was not satisfied in the present case.

¶116

The Government had issued the letters (Ex.PW1/A, Ex.PW2/A and Ex.PW2/) stating that the evacuee property should not be sold/transferred without the knowledge of Financial

¶117

20

¶118

2025:HHC:46560

¶119

Commissioner (Revenue), to the Government of H.P. It was submitted that the sale made by a Ramesh Kumar Chaudhary was contrary to the Government instruction and the mutation attested by Santosh, violated these instructions. Even if, it is accepted that Ramesh Kumar had sold the land despite the prohibition, such an act would not make the document forged, but would expose him to penalties under the service law. Therefore, these instructions are not sufficient to make the documents forged.

¶120

It is undisputed that Ramesh Kumar was posted as Naib Tehsildar (Sales) in the Custodian Department, and he had the authority to deal with the evacuee property under the Administration of Evacuee Property Act. Ram Nath, Superintendent (PW17), proved the distribution of evacuee property (Ex.PW17/G). Naib Tehsildar (Sales), Shimla, was competent to sell/manage the evacuee property located at Shimla, Solan, Kangra, Sirmour, Bilaspur and Una. Reliance was placed upon the notification (Ex.PW17/H) vide which the power of Managing Officer (Sales) conferred upon them under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, was ordered to be withdrawn. However, the powers

¶121

21

¶122

2025:HHC:46560

¶123

conferred upon the Administration of Evacuee Property Act, 1950, were not withdrawn, and not much advantage can be derived from this notification.

¶124

It is undisputed that accused Santosh Kumar was posted as Naib Tehsildar and he had the jurisdiction to attest the mutation. Jagdev Singh (PW14) stated that he had received a sale certificate for entering it in the mutation register. He entered the Mutation No. 381, which was attested by Santosh Kumar, Tehhsildar. Subsequently, the mutation was cancelled. He admitted in his cross-examination that sale certificates were received through the proper channel for entering mutation, and Nirmal Singh, Kanungo, had compared and checked the mutation. The mutation was reviewed after following the due procedure.

¶125

It was submitted that the Government had issued instructions to ban the transfer/sale of evacuee property, and it was impermissible to attest the mutation. This submission will not help the State. The mutation does not amount to transfer but is only attested for fiscal purposes for keeping the revenue record up-to-date and determining the person who is liable to pay land revenue to the State. Mutation does not confer the title, nor does

¶126

22

¶127

2025:HHC:46560

¶128

it take away the title. Therefore, the attestation of the mutation will not fall within the prohibition of the instruction of the sale/transfer.

¶129

It was held by Allahabad High Court in Phool Chandra Arya v. State of U.P., 2016 SCC OnLine All 3328 that the attestation of the mutation in the name of purchasers mentioned in the sale deed does not attract the provisions of Sections 419, 420, 467, 468, 406 of IPC and Section 13(d) of Prevention of Corruption Act. It was observed:

¶130

“32. The prosecution has submitted a charge sheet against the applicant under sections 419, 420, 467, 468, 471, 406 IPC and 13(1)(d) of the P.C. Act, Police Station George Town, District Allahabad. A bare perusal of the record would disclose that the applicant has not been accused of making a false document, as defined under section 464 IPC. Making a false document is a condition precedent for the offence under sections 467, 468 and 471 IPC. There is no allegation, much less evidence, to show that any false document was prepared by the applicant; therefore, the offence under sections 467, 468 and 471 IPC is not attracted at all. [ Mohammad Ibrahim v. State of Bihar (2007) 4 SCC 247 ]

¶131

33. Similarly, for attracting ingredients of sections 419 and 420 IPC, inducement to deliver property to any person or to make an alteration or to destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, is essential. The fact of the matter is that the sale deed was executed and registered in Mumbai between the vendors and vendees. There is no allegation that the applicant was present in Mumbai at the relevant

¶132

23

¶133

2025:HHC:46560

¶134

time. The entire evidence discloses no action on the part of the applicant except conducting mutation proceedings under the Revenue law, subsequent to the application made by the purchasers. There is no material involvement of the applicant in the execution and registration of the deed. The ingredients of section 415 IPC are totally absent; it cannot be said that the offences punishable under sections 419 and 420 IPC are made out against the applicant. The role of the applicant has been delineated by the prosecution itself, and his role is limited to mutation proceedings only. There is, in fact, no allegation or whisper that prior to mutation proceedings, the applicant was involved with any party at all.

¶135

34. As far as that leaves only of fence under section 13(1) (d) of P.C. Act a bare perusal of section 13(1)(d) of P.C Act would reveal that public servant can only be prosecuted under the aforesaid provision, if he by corrupt or illegal means, obtains for himself or any other person any valuable thing or pecuniary advantage, or by abusing his position as a public servant, obtains for himself or any other person an) valuable thing or pecuniary advantage or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

¶136

35. There is absolutely no whisper that the applicant obtained any valuable thing or pecuniary advantage by abusing his position as a public servant or by using his office for the said advantage. Such allegations are virtually absent; therefore, the applicant cannot be prosecuted under section 13(1)(d) of the P.C. Act.”

¶137

In the present case, no witness has stated that the

¶138

accused had taken any money for the attestation of the mutation.

¶139

The only allegation is that he had attested the mutation contrary to the instructions issued by the Government, which, as noticed

¶140

24

¶141

2025:HHC:46560

¶142

above, do not apply to the mutation. Therefore, the offences punishable under Section 420 and 13(1) are not made out.

¶143

27. The ingredients of cheating were explained by the Hon’ble Supreme Court in S.W. Palanitkar v. State of Bihar , (2002) 1 SCC 241 as under:

¶144

“10. The ingredients of an offence of cheating are: ( i ) there should be fraudulent or dishonest inducement of a person by deceiving him, ( ii )( a ) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or ( b ) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and ( iii ) in cases covered by ( ii ) ( b ), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

¶145

11. One of us (D.P. Mohapatra, J.), speaking for the Bench, in HridayaRanjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786 ] on facts of that case, has expressed thus: (SCC p. 177, para 15)

¶146

“ 15 . In determining the question, it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct, but for this, subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is, the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of

¶147

25

¶148

2025:HHC:46560

¶149

cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up a promise, subsequently, such a culpable intention right at the beginning, that is, when he made the promise, cannot be presumed .”

¶150

(emphasis supplied)

¶151

12. Finding that the ingredients of the offence of cheating and its allied offences had not been made out, this Court interfered with the order of the High Court and quashed the criminal proceedings.

¶152

13. In G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693: 2000 SCC (Cri) 733], this Court in para 7 has stated thus: (SCC pp. 696-97)

¶153

“ 7 . As mentioned above, Section 415 has two parts. While in the first part, the person must ‘dishonestly’ or ‘fraudulently’ induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 575: 1956 Cri LJ 1116], a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure the conviction of a person for the offence of cheating, ‘ mens rea ’ on the part of that person must be established. It was also observed in Mahadeo Prasad v. State of W.B. [AIR 1954 SC 724: 1954 Cri LJ 1806] that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered .”

¶154

(emphasis supplied)

¶155

14. In Trisuns Chemical Industry v. Rajesh Agarwal [(1999) 8 SCC 686: 2000 SCC (Cri) 47] dealing with the effect of existence of arbitration clause in the agreement on

¶156

26

¶157

2025:HHC:46560

¶158

criminal prosecution on the ground that civil proceedings are also maintainable, this Court has held that quashing of FIR or a complaint exercising power under Section 482 CrPC should be limited to a very extreme exception; merely because an act has a civil profile is not enough to stop action on the criminal side. It is further held that a provision made in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act constitutes a criminal offence.

¶159

28. A similar view was taken in G.V. Rao v. L.H.V. Prasad ,

¶160

(2000) 3 SCC 693, as under:

¶161

“4. Cheating” is defined in Section 415 of the Penal Code, 1860, which provides as under:

¶162

“415. Cheating. —Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’.

¶163

Explanation. —A dishonest concealment of facts is a deception within the meaning of this section.”

¶164

5. The High Court quashed the proceedings principally on the ground that Chapter XVII of the Penal Code, 1860, deals with the offences against properties and, therefore, Section 415 must also necessarily relate to the property which, in the instant case, is not involved and, consequently, the FIR was liable to be quashed. The broad proposition on which the High Court proceeded is not correct. While the first part of the definition relates to

¶165

27

¶166

2025:HHC:46560

¶167

property, the second part does not necessarily relate to property. The second part is reproduced below:

¶168

“415. … intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’.”

¶169

6. This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such an act or omission should have caused damage or harm to body, mind, reputation or property.

¶170

7. As mentioned above, Section 415 has two parts. While in the first part, the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 575: 1956 Cri LJ 1116: 1956 SCR 483], a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure the conviction of a person for the offence of cheating, “ mens rea ” on the part of that person must be established. It was also observed in Mahadeo Prasad v. State of W.B . [ AIR 1954 SC 724: 1954 Cri LJ 1806 ] that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.

¶171

28

¶172

2025:HHC:46560

¶173

8. Thus, so far as the second part of Section 415 is concerned, “property”, at no stage, is involved. Here, it is the doing of an act or omission to do an act by the complainant, as a result of intentional inducement by the accused, which is material. Such inducement should result in the doing of an act or omission to do an act as a result of which the person concerned should have suffered or was likely to suffer damage or harm in body, mind, reputation or property. In an old decision of the Allahabad High Court in Empress v. Sheoram [(1882) 2 AWN 237] , it was held by Mahmood, J.:

¶174

“That to palm off a young woman as belonging to a caste different to the one to which she really belongs, with the object of obtaining money, amounts to the offence of cheating by personation as defined in Section 416 of the Penal Code, 1860, which must be read in the light of the preceding Section 415.”

¶175

In the present case, there is nothing on record to show that any person was induced to deliver any property on account of the attestation of the mutation. As already stated, the mutation does not confer any title upon any person and will not enable any person to purchase or sell the property. The sale/purchase would be dependent upon the sale certificate issued by Naib Tehsildar (Sales). Thus, the attestation of the mutation will not attract the provisions of Section 420 of the IPC.

¶176

The further case of the prosecution is that Madan Lal sold the property to Bimla Devi for a consideration of ₹2,00,000/-. The property, which had been purchased by Madan

¶177

29

¶178

2025:HHC:46560

¶179

Lal for ₹3,11,000/-, could not have been sold for ₹2,00,000/-. The petitioner, being the Sub Registrar, had registered the sale of such property. In this regard, it is to be noticed that Bimla Devi (PW15) stated that she had purchased Khasra Nos. 2946, 2950 and 2951 for ₹2,00,000/-, whereas the Sale Certificate (Mark-X) was issued for Khasra Nos. 2915, 2946, 2950 and 2951. Therefore, the whole land was not sold, and a part of the property was sold. Thus, the sale consideration paid by Madan Lal could not have been used for determining the market value.

¶180

Bhupinder Singh (PW6) prepared the statement of average sale price (Ex.PW6/F). However, he didnot calculate the average sale price of the land purchased by Bimla Devi, and his testimony does not show that Madan Lal had mentioned less than market value in the sale deed. Furthermore, no instructions have been placed on record that the sale deed could not have been executed for less than the average sale price. Therefore, his testimony does not prove that the accused Santosh Kumar, had forged the registry and the sale deed.

¶181

Parthsarathi Mitra (PW37) accorded the prosecution sanction. He stated in his cross-examination that, as per the normal practice, the office looks into a case file and prepares the

¶182

30

¶183

2025:HHC:46560

¶184

draft for prosecution sanction. He went through the record sent by the Vigilance as well as through the draft prepared and accorded the prosecution sanction after making the required corrections. He stated in his cross-examination that he had read the entire record, understood and checked the draft, whether it correctly reflected whatever was mentioned in the record. He admitted that, as per the H.P. Land Record Manual, the Patwari enters mutation, but he had mentioned in the sanction order that the Tehsildar had entered the mutation. He admitted that the Tehsildar was not found to have entered the mutation but attested the mutation. He was not sure whether the Tehsildar is a Class-I Officer, and so far as his knowledge goes, only the Chief Secretary is empowered to grant prosecution sanction in case of a Class-I Officer.

¶185

Cross-examination of this witness shows that he had signed the draft prepared by the office. He claimed that he had gone through the record, but he was not sure whether Tehsildar was a Class-I Officer, and he was competent to grant sanction. Further, he had wrongly recorded that the Tehsildar had entered the mutation, whereas the mutation was attested by the Patwari. Hence, the statement of this witness is not sufficient to show

¶186

31

¶187

2025:HHC:46560

¶188

that he had accorded the sanction after the proper application of mind. Learned Trial Court erred in holding that the sanction was properly given by him.

¶189

Therefore, the learned Trial Court erred in convicting the accused. Hence, the judgment passed by the learned Trial Court cannot be sustained and is liable to be interfered with.

¶190

In view of the above, the present appeal is allowed and the judgment of conviction dated 15.10.2013 and order of sentence dated 18.10.2013, passed by learned Special Judge, Una, District Una, H.P., are ordered to be set aside. The accused is acquitted of the charges framed against him. The fine, if deposited be refunded to the appellant/accused after the expiry of the period of limitation, in case no appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court of India.

¶191

In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the accused is directed to furnish personal bond in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks,

¶192

32

¶193

2025:HHC:46560

¶194

which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

¶195

A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.

¶196

(Rakesh Kainthla) Judge

¶197

15^th June, 2026 (Chander)

Santosh Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Santosh Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Akshay Vs State of Hp

Rajender Kumar Vs State of Hp

Mohd. Ali Vs Ramesh Kumar and others

Rajesh Kumar Sharma Vs Ms Pdc Health care

Jaswant Singh Vs State of Hp

Deepo Devi Vs Sevati Devi