THE HONOURABLE SRI JUSTICE K.SURENDER Crl.R.C.Nos.1025 & 1043 OF 2013

COMMON JUDGMENT:

These Criminal Revision Cases are filed by petitioners/Accused Nos.1, 3 and 2 respectively aggrieved by the order judgment dated 03.06.2013 in Crl.A.Nos.124 and 123 of 2012, on the file of Metropolitan Sessions Judge, Hyderabad, confirming the order dated 07.02.2012 in C.C.No.2319 of 2009 passed by the XIV Additional Chief Metropolitan Magistrate, Hyderabad.

2. Heard the learned counsel for the revision petitioners and the learned Assistant Public Prosecutor appearing for respondent-State.

3. The revision petitioners were convicted for the offences under Sections 379 and 420 of IPC and sentenced to undergo rigorous imprisonment for a period of two years for the offence under Section 420 of IPC and to undergo rigorous imprisonment for a period of one year for the offence under Section 379 of IPC.

4. Briefly, the case against the accused is that A-1 and A-2 were working in the Courier Service and A-3 was working in the Bank. According to the prosecution version, Exs.P.3 and P.4 cheques were subjected to theft by A-1 and A-2, while the concerned cheque books were couriered to P.W.1. By misusing the said cheques, an amount of Rs.33,550/- and Rs.34,450/- were withdrawn. P.W.1 lodged a complaint stating that he never withdrew the said amount. During the course of investigation, the Police identified A-1 and A-3 who were working in the Courier Service have committed theft of the cheque books while in transit and misused them. A-3 was working in ICICI Bank and left the bank in the month of April, 2009. When A-1 and A-2 committed theft of one of the cheque books sent by the bank to P.W.1, and thereafter, A-1 met A-3 and forged the signature of Gopi Krishna/P.W.1., with the help of A-3. According to the prosecution version, A-3 helped in securing specimen signature of P.W.1 that was in the bank records. The PAN card number of A-1 was written on the back of cheque leaf and accordingly, the Police have identified A-1 to A-3 as accused on the basis of said PAN card number.

5. The trial Court having examined the complainant/P.W.1 and other bank officials-P.Ws.2 to 6 found that cheques were subjected to theft by A-1 and A-2 and with the help of A-3, amounts were withdrawn. Cheques were presented in the bank resulting in the wrongful loss to P.W.1.

6. Further, the Court found that prosecution failed to establish the offence under Section 468 of I.P.C. for committing forgery of the cheques.

7. Learned counsel appearing for the revision petitioners would submit that once no offence under Section 468 of I.P.C. is made out according to the trial Court, the question of convicting the accused under Section 420 of IPC does not arise. He relied on the judgment of the Hon’ble Supreme Court in Hira Lal Panna Lal Mahi vs. State of Gujarat, [(1969) 3 SCC 756]. In the said judgment, the Hon’ble Supreme Court held that once offence under Section 471 of IPC has seen set aside, the High Court was not justified in convicting the accused under Section 420 of IPC.

8. In the present case also, the basic version of the prosecution is that cheques were forged and accordingly, the signatures of P.W.1 were made on the cheques that were subjected to theft. The ingredient of Section 468 of IPC is that person ought to have committed forgery for the purpose of cheating. Simplicitor forgery is not an offence unless such forgery is used for a fraudulent purpose resulting in wrongful loss or wrongful gain. Once the basic version of the prosecution that there was no forgery, the question of convicting the accused under Section 420 of IPC does not arise, taking into consideration the observations of the Hon’ble Supreme Court in the judgment cited supra.

9. However, the prosecution has proved that cheques were subjected to theft. There is no explanation as to how A-1 and A-2 have come into possession of said cheques. Since there is no evidence of forgery, the version that A-3 helped A-1 and A-2 in