HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No.4890/2016 Manak Chand Soni son of Late Shri Radheyshyam Soni, aged 58 years, Resident of Soni Villa, Anand Nagar, Sikar, District Sikar (Raj.) ----Petitioner Versus 1. State of Rajasthan, through P.P. ----Respondent 2. Satyanarayan Gupta son of Shri Jagdish Prasad Gupta, aged 52 years, Resident of E-467, Vaishali Nagar, Jaipur J.T.O. Telecommunication Department, Indra Nagar, Jhunjhunu District Jhunjhunu (Raj.) ----Complainant/Respondent For Petitioner(s) : Mr. Ripu Daman Singh Naruka For Respondent(s) : Mr. Jitendra Singh Rathore, PP with Ms. Neha Goyal JUSTICE ANOOP KUMAR DHAND Order 17/04/2026 1. By way of filing the instant criminal misc. petition, a challenge has been made to the impugned order dated 21.08.2010 passed by the Chief Judicial Magistrate, Jhunjhunu in the proceedings arising out of the FIR No.45/2003 & Final Report No.31/2003 registered with Police Station Kotwali, District Jhunjhunu, by which cognizance has been taken against the petitioner along-with co-accused Kanhaiya Lal Swami for the offences under Sections 420, 406 and 120B IPC. Aggrieved by the aforesaid, the petitioner submitted a revision petition before the court of Sessions Judge, Jhunjhunu, however, the same was also rejected vide impugned order dated 27.08.2016. Hence, aggrieved (2 of 7) [CRLMP-4890/2016] by both the aforesaid orders, the petitioner has approached this Court by way of filing the instant criminal misc. petition. 2. Learned counsel for the petitioner submits that as per the allegations levelled by the Department of Telecommunication i.e. Bharat Sanchar Nigam Limited (BSNL), a telephone connection bearing No.7239981 was obtained by the co-accused Kanhaiya Lal Swami by way of filing an application before BSNL and STD facility was made available on the aforesaid telephone connection. Learned counsel submits that after using the services for a considerable time, when the outstanding amount came to Rs.1 Lakh, the co-accused Kanhaiya Lal’s telephone connection was discontinued by the Department looking to the fact that telephone facilities charges were not deposited by him. Hence, he has committed the offence of cheating and criminal breach of trust with the Department and the same has been reported by the Department to the concerned police authority. 3. Learned counsel for the petitioner submits that on the basis of the aforesaid report, an FIR No.45/2003 was registered with Police Station Kotwali, Jhunjhunu against the co-accused Kanhaiya Lal for the offences under Section 406 IPC. After investigation, the police submitted Final Report (Negative) before the concerned Court, against which the Department submitted a protest petition, whereby cognizance has been taken against the petitioner along- with co-accused Kanhaiya Lal Swami. The reasons for taking cognizance against the petitioner is that the petitioner has attested the application form submitted by the co-accused Kanhaiya Lal Swami for getting the aforesaid telephone connection. Learned counsel submits that this is the precise (3 of 7) [CRLMP-4890/2016] allegation against the petitioner and on the basis of the same, cognizance has been taken against him. 4. No one has appeared on behalf of the complainant- respondent to oppose the petition. 5. Heard and considered the submissions made at the Bar and perused the material available on the record. 6. The issue before this Court is “whether an attesting witness of the application form for getting telephone connection is responsible for any offence under Sections 420 and 406 IPC?” 7. Admittedly, the petitioner is an attesting witness of the application form submitted by the co-accused Kanhaiya Lal for getting telephone connection. According to Black’s Law Dictionary- “An attesting witness is a person who signs a document to certify that he personally knows the creator (executant of the document) signing it. He simply certifies the document’s authenticity.” 8. The Hon’ble Supreme Court in the matter of M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons reported in (1969) 1 SCC 573 while considering the definition of the word “attested” as provided under Section 3 of the Transfer of Property Act has held that to attest is to bear witness to a fact and if a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. 9. In the matter of Banga Chandra Dhur Biswas Vs. Jagat Kishore Acharjya Chowdhuri reported in AIR 1916 PC 110, the Privy Council has held that attestation by itself would neither create estoppel nor imply consent. It proves no more than that (4 of 7) [CRLMP-4890/2016] the signature of an executing party has been attached to a document in the presence of a witness. 10. Similarly, in the matter of Pandurang Krishnaji Vs. M. Tukaram reported in AIR 1922 PC 20, it has been held by the Privy Council that attestation of a deed by itself estops a man from denying nothing whatsoever expecting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication, any knowledge of the contents of the document and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. 11. The Lahore High Court (in pre-independence era) in the matter of L. Suraj Bhan v. Hafiz Abdul Khaliq reported in AIR 1944 Lah 1 has held that recitals in a deed do not bind the attesting witnesses, for, an attestation pure and simple is not enough to fix, the attestator with a knowledge of the contents of the deed. 12. In the instant case, cognizance under Sections 420 & 406 IPC has been taken against the petitioner, who is an attesting witness of an application form submitted by the co-accused for getting telephone connection. 13. Section 420 IPC prescribes the punishment for cheating and dishonestly inducing delivery of property, which states as under:- “420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or 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, shall be punished with imprisonment of (5 of 7) [CRLMP-4890/2016] either description for a term which may extend to seven years, and shall also be liable to fine.” 14. Section 415 IPC defines cheating which states as under:- “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”. Explanation. A dishonest concealment of facts is a deception within the meaning of this section.” 15. The aforesaid provision which defines cheating requires- (1) deception of any person; (2) (a) fraudulently or dishonestly inducing that person (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or commission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 16. Section 405 IPC defines Criminal breach of trust, which states as under:- “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.” (6 of 7) [CRLMP-4890/2016] 17. Similarly, Section 406 IPC prescribes punishment for criminal breach of trust. Section 406 IPC is reproduced as under:- “Section 406-Punishment for criminal breach of trust.— Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 18. In the instant case, the ingredients of both the offences punishable under Sections 406 and 420 IPC are missing. No prima facie case is made out to take cognizance against the petitioner for the above stated offences. 19. This Court finds no prima facie case to proceed against the petitioner, as the ingredients of Sections 420, 406 and 120B IPC are missing and the petitioner has not committed any offence whatsoever, by simply attesting the application form, submitted by the co-accused for obtaining telephone connection, when the co- accused has failed to pay the outstanding dues of the telephonic facilities availed by him. 20. This Court further finds that the petitioner has not committed any kind of fraudulent act for which he is liable to be prosecuted under Section 406, 420 read with Section 120B IPC. No prima facie case is made out against him for prosecuting him for the above stated offences. 21. In view of the reasons stated above, this Court finds no good reason to continue with the proceedings against the petitioner as the same tantamounts to abuse of the process of law. Hence, the impugned order dated 21.08.2010 passed by the Chief Judicial Magistrate, Jhunjhunu taking cognizance qua the petitioner stands quashed and set-aside qua the petitioner. (7 of 7) [CRLMP-4890/2016] 22. As a consequence thereof, the subsequent order dated 27.08.2016 passed by the learned Sessions Judge, Jhunjhunu on the Revision Petition No.120/2014 submitted by the petitioiner also stands quashed and set-aside. 23. Accordingly, the instant criminal misc. petition stands allowed. Stay application as well as all pending applications, if any, stand disposed of. (ANOOP KUMAR DHAND),J Karan/48