IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.45740 OF 2008 PURANDAR PRASAD GUPTA, SON OF LATE JAGESHWAR RAM, RESIDENT OF VILLAGE UDA KISHANGANJ, POLICE STATION UDA KISHANGANJ, DISTRICT SAHARSA VERSUS THE STATE OF BIHAR ******* 2 19/08/2009 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. This application has been filed for quashing the order dated 05.02.2008 by which the Chief Judicial Magistrate, Patna has taken cognizance of the offences under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code against the petitioner. The First Information Report has been instituted by the Deputy Secretary, Personnel and Administrative Reforms Department, Government of Bihar on 30.07.2004 which inter alia contains the following facts; The petitioner at the time of his appointment has stated that his date of birth was 01.01.1939 which is recorded in the Blue Book. The petitioner has passed the matriculation examination in 1956, I.A. in 1958, B.A. in 1960, M.A. in 1962 and B.L. in 1963 which has been entered in the Blue Book by the Authority. The original certificates goes to show 2 that the date of birth of the petitioner is 01.01.1939. As per the date of birth, the petitioner was to retire on 31.12.1996 however the petitioner continued in the Government service till 15.12.2003. It is alleged that he has suppressed his date of birth and misled the State Government and continued in service for seven years. On investigation of the matter, it has come in light vide Annexure-3, a letter dated 24th September, 2004 issued by the Deputy Secretary, Personnel & Administrative Reforms Department, Government of Bihar to the Officer-in-charge, Sachivalay Police Station, Patna that the petitioner has shown his date of birth correctly as per the service records, however, in the year 1985, 1991 and 1999 when the gradation list was prepared, his date of birth has been mentioned as 01.01.1949 which appears to be a typing mistake and cannot be attributed to any one personally. It has further been mentioned that as per rule 73 of the Bihar Service Code, a Government servant would retire at the age of 58 years and no separate order is required to be issued for the purposes of communicating that he has to retire. However, as in the case of the petitioner after enquiring into the matter, order no. 238 dated 12.01.2004 was issued with respect to the retirement 3 of the petitioner in view of the fact that he has surpassed the age of his retirement. On these facts, cognizance has been taken as indicated above. Learned Counsel for the petitioner submits that the petitioner has not committed any offence under Section 420 of other sections of the Indian Penal Code. Referring to Section 415 of the Indian Penal Code, learned Counsel submits that no offence of cheating is made out. Section 415 of the Indian Penal Code is quoted herein below :- “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”. To hold a person guilty of cheating as defined under Section 415 of the Indian Penal Code, it is necessary to show that he had fraudulent or dishonest intention. In other words, Section 415 of the Indian Penal Code as defines cheating requires 4 deception of any person (a) inducing that person to; (i) deliver any property to any person or (ii) to consent that any person was retained any property, or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he was not so deceived and which act or omission cause or is likely to cause harm to any person, anybody’s mind, reputation or property. In the first class of cases, the inducement must be fraudulently or dishonestly. In the second class of cases, the inducement must be intentional but not fraudulently or dishonestly. In the facts of the present case, it is apparent that the petitioner had rightly submitted his date of birth as 01.01.1939 and as such he has neither suppressed nor misinformed the State Government with respect to his age. The enquiry subsequently conducted indicates that the gradation list prepared in the years 1985, 1991 and 1999 wrongly showed the age of the petitioner as 01.01.1949. It is submitted that the gradation list was not prepared by the petitioner rather it is prepared by the Department and kept in its custody. At the stage of preparation of the gradation list, the authorities are supposed to look into the service records or other documents with respect to the 5 date of birth, date of joining in service, promotion etc. and prepare the gradation list accordingly. The service holder is only required to file an objection with respect to the gradation list as far as his placement in the gradation list is concerned. It has been submitted on behalf of the State that the petitioner ought to have brought it to the notice of the concerned Authority that his date of birth has been wrongly mentioned in the gradation list and by not doing so, has committed an omission and taken advantage of the said gradation list to continue in service for seven years. Technically speaking, the offence under Section 420 of the Indian Penal Code is not made out against the petitioner although there cannot be any doubt about the fact that the petitioner who was working on the post of Deputy Development Commissioner was aware of the rules and regulations which govern his service tenure and has also not taken any steps to correct or inform the authorities concerned regarding his date of birth mentioned in the gradation list and as such he may be held guilty of omission but not of cheating as envisaged under Section 415 of the Indian Penal Code. As far as the allegations under Sections 6 467, 468, 471 and 120B of the Indian Penal Code is concerned, it is difficult to hold that the petitioner was guilty of the act of forgery or preparing a forged document as there is no such allegation in the First Information Report. Sections 463 & 464 itself defines the offences under Sections 467, 468 and 471. It is apparent that the petitioner has neither prepared any document nor signed any document which would indicate that he had committed forgery. In the circumstances aforesaid, it is difficult for this Court to sustain the order dated 05.02.2008 by which cognizance was taken under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code. Accordingly, the order dated 05.02.2008 passed by the Chief Judicial Magistrate, Patna in Gardanibagh (Sachivalay) Police Station Case No. 543 of 2004 (G.R. Case No. 3261 of 2004) is hereby quashed. In the result, this application is allowed. A.F.R./Anand ( Sheema Ali Khan, J. )