40. Ms. Devyani Sharma, learned Senior Counsel relied upon the judgment of the Hon'ble Supreme CourtinRam Jas v.

rt State of U.P., (1970) 2 SCC 740 to submit that there should be a fraudulent or dishonest inducement before a person can be held guilty of cheating. Reliance was placed on the following paragraphs:

The ingredients required to constitute the offence of cheating are--

4. In the present case, the finding of fact recorded only shows that the Oath Commissioner was induced to attest the affidavit by the deception practised by the appellant in wrongly identifying a person as Govind Ram when he was in fact not Govind Ram. That act done by the Oath Commissioner of ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 38 attesting the affidavit could not, however, possibly cause any damage or harm to the Oath Commissioner in body, mind, reputation or property. The Oath Commissioner was obviously not induced to deliver any property to anybody by this wrong .

identification, nor was he induced to consent that any person should retain any property. Thus, the facts found did not constitute the offence of cheating at all. The conviction for an offence under Section 419, substantively or with the aid of Section 109 IPC, could only have been justified if the facts proved constituted all the ingredients of the offence of cheating. In recording the conviction, the High Court neglected to see whether all those ingredients were proved. On the face of it, of though the Oath Commissioner was induced to attest the affidavit by wrong identification made by the appellant, there was no likelihood of any damage or harm to him in body, mind, reputation or property, so that the Oath Commissioner was never rt cheated. Clearly, therefore, the High Court fell into an error in recording the conviction of the appellant for the offence under Section 419, read with Section 109 IPC and substituting that conviction in place of the conviction for offences for which he had been punished by the trial court.

41. Similar is the judgment inV.Y. Jose v. State of Gujarat , (2009) 3 SCC 78 as under:-

For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intentions at the time of making a promise or representation. Even in a case where allegations are made in ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 39 regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making the initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out.

42. The term dishonestly has been defined in Section 24 of the Indian Penal Code as anything done to cause wrongful gain to one person or wrongful loss to another person. In the present case, when the date of birth was altered from 22.7.1956 to of 22.7.1960, the State Government was led to believe that the accused was born on 22.7.1960 and this belief granted him an rt extended benefit of four years which it would not have granted had it known the correct date of birth. The accused also gained service benefits of four years by altering his date of birth, which he would not have gained had he disclosed his correct date of birth.

43. Section 23 of the Indian Penal Code defines the term wrongful gain as the gain by unlawful means of the property to which a person gaining is not legally entitled and wrongful loss as the loss by unlawful means or the property to which the person losing it is entitled. Since the accused would not have been entitled to the service benefit for four years had he disclosed his correct age and the State Government would not have lost the ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 40 service benefit of four years had it known the correct year of birth of the accused;therefore, there was a wrongful gain to the accused .

and wrongful loss to the State.

44. The accused did not dispute that his correct date of birth is 22.7.1956; therefore, when he produced the copy of the matriculation certificate showing his date of birth as 22.7.1960, he of made a representation which he believed to be incorrect. By making this misrepresentation he induced the State to grant rt service benefits for four years, which caused the loss to the State, hence all the ingredients of Section 415of IPC were duly satisfied and the learned Trial Court had rightly held that the ingredients of an offence defined under Section 415 of IPC were made out.

45. The accused knew his correct date of birth. He was aware of the fact that his date of birth was recorded as 22.7.1956 at the time of his admission to the school as per Ext. PW12/B. He knew that a certificate bearing No. 552 was issued by the Board, and he produced a certificate in which Roll No. was missing, date of birth was altered to 22.7.1960; therefore, he has a reason to believe that this matriculation certificate was not the correct copy of the original matriculation certificate because it had two ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 41 alterations. Still, he used this document to show his qualifications and date of birth; therefore, he used a forged document as a .

genuine document. This document was used to secure a pecuniary advantage by gaining the service benefits of four years; therefore, all the ingredients of the commission of an offence punishable under Section 471 of IPC were made out.

46. In all fairness to Ms Devyani Sharma, learned Senior Counsel for the accused, she has relied upon the judgments of rt Hon'ble Supreme Court in Neeraj Dutta v. State (NCT of Delhi ), (2023) 4 SCC 731; C.K. Jaffer Sharief v. State , ( 2013) 1 SCC 205 and State of Maharashtra v. Pollonji Darabshaw Daruwalla , 1987 Supp SCC 379 to submit that the presumption under Section 20 of the Prevention of Corruption Act does not apply to the present case.

Learned Trial Court never proceeded on any presumption under Section 20 of the Prevention of Corruption Act,hence this submission will not be helpful to the accused.

47. Reliance was also placed upon the judgments of H.R. Bashal vs. State of H.P. and Ors. (11.10.2001-HPHC) :

these judgments will not be relevant to the decision of the present case.

48. The Learned Trial Court convicted the accused of the offences under Sections 415 , 471 of IPC and Section 13 (1)(d) of the of Prevention of Corruption Act. Learned Trial Court erred in holding that the accused was guilty of an offence under Section rt 415 of IPC because that is a definition clause and does not provide any punishment; therefore, no punishment could have been imposed under Section 415 of IPC. However this is a typographical error because the accused was charged with the commission of offences Sections 420 of IPC; therefore, this error will not make any difference to the present case.

49. It was submitted that the benefit of the Probation of Offenders Act should have been granted to the accused. Reliance was placed upon the judgment of Punjab and Haryana High Court in Surinder Kumar vs. State of Punjab Criminal Revision No. 540 of 2013 was decided on 31.1.2020. This submission is not acceptable.

It was laid down by Hon'ble Supreme Court in Shyam Lal Verma v.

CBI, (2014) 15 SCC 340 that Section 7 as well as Section 13 of the Prevention of Corruption Actprovides a minimum sentence;

therefore, it was not permissible to grant the benefit of the Probation of Offenders Act . It was observed:

50. Therefore, the submission that the benefit of the Probation of Offenders Act is granted to the accused is not acceptable.

51. Learned Trial Court had imposed the punishment ofone year and the payment of fine of ₹ 5,000/- for the commission of an offence punishable under Section 415 of IPC;

two years and a payment of fine of ₹ 10,000/- for the commission of an offence punishable under Section 471 of IPC and two years and a payment fine of ₹ 10,000/- for an offence punishable under ::: Downloaded on - 08/12/2023 20:34:09 :::CIS 44 Section 13(1)(d) of the Prevention of Corruption Act. These sentences cannot be said to be excessive keeping in view the fact .

that a forged document was used as a genuine to secure the benefit of four years of service. The offence was committed after due deliberation and could not have been viewed lightly. Hence, no interference is required with the sentences imposed by the of learned Trial Court.

52. No other point was urged.

53. In view of the above, the present appeal fails and the same is dismissed, so also pending miscellaneous applications, if any.

(Rakesh Kainthla) Judge 8th December,2023 (Karan Guleria) ::: Downloaded on - 08/12/2023 20:34:09 :::CIS