S.K. Agarwal, J.

1. This revision petition under Section 397/401 Criminal Procedure Code, 1973 (for short, the Code) is directed against the order dated 13.3.1986 passed by the court of Chief Metropolitan Magistrate, Delhi discharging accused (respondents) for the offences under section 467/468 read with 471 IPC and only framing charge under section 120-B read with 420 IPC and under section 420 IPC in the case RC No. I/85/CIU/II.

2. Facts, in brief, are as follows: - On 1.3.1985 Delhi Special Police Establishment, New Delhi registered above-noted case against accused Rajinder Sethia (hereafter, A-1), an Indian national based at U.K. and Managing Director of Esal (Commodities) Ltd. London (for short, Esal), on the allegations that during the period 1982-84, he entered into criminal conspiracy with his own employees and certain officials of Punjab National Bank and Central Bank of India and other Institutions based at U.K. with the object to defraud those banks/institutions to the tune of millions of pound sterlings and dishonestly induced the institutions to extend loans, in respect of his alleged contracts with the Nigerian National Supply Corporation and other African bodies, which did not have sufficient foreign exchange reserves. It is also alleged that financial condition of Esal was also in bad shape and they required huge funds in order to reduce the outstanding amounts payable to the bank. On 1.3.1985, A-1 was arrested at Hotel Mourya Sheraton, New Delhi and some documents, including forged passport, were recovered from the room where he was staying. On interrogation, he disclosed that in conspiracy with Amarjit Singh (hereafter, A-2), then General Manager of Punjab National Bank, London Branch (for short, PNB), he submitted false bills of exchange on his in-house companies at Hong Kong and obtained an advance of US$ 7.649 million and a further loan of US$ 2.351 million from PNB against these bills. A-2 was arrested on 16.3.1985 from a Guest House in Sunder Nagar, New Delhi and some incriminating documents were also recovered from his possession.

3. Investigations revealed that on 7.12.1983, A-1 obtained credit of US$7.649 million from PNB on the basis of four forged bills of exchange dated 5.12.1983 for US$ 10.4 million drawn on M/s. Al globe Trading Ltd., Hong Kong (hereafter, Al globe), knowing or having reason to believe that these bills and the supporting documents were false and forged and that no sugar was shipped by the vessel Golden Venture as reflected in the bills. A-2, in pursuance of the conspiracy with A-1, dishonestly credited a sum of US$ 7.649 million against said foreign bills for collection keeping a cash margin of 25% having reason to believe that the bills and its supporting documents were false and forged. Esal was further given a loan of US$ 2.351 million on the same day thus making a total of US$10.0 million. After crediting this amount, outstanding dues of Esal payable to PNB were reduced from US$ 33,261,831.35 to US$ 23,258,591.35. These four bills of exchange were forwarded by PNB to Hong Kong and Shanghai Banking Corporation (for short, HK Bank) along with the shipping documents for collection only on 13.12.1983, which were accepted by the drawee Al globe. However, only one bill was honoured and remaining three were kept pending and they asked for change of payment dates to June 1984. On 3.1.1984, HK Bank informed PNB, London, through telex, that three bill Nos. 419/83, 420/83 and 421/83 were not acceptable to the drawee, which was forwarded to Esal. It was later on found that original bills of lading showing shipment of sugar by vessel Golden Venture were replaced by bills of lading of the ships Elani and Summer Sun.

4. On 6.1.1984, Esal forwarded four fresh bills of exchange of the earlier amount, drawn on M/s. Bright Planet Enterprises, Hong Kong (for short, Bright Planet) in lieu of their previous bills of exchange stating that earlier those were erroneously drawn on Al globe. Esal further stated that old drawee has been informed to handover the documents to the new drawees, if the same are in their possession. On 10.1.1984, these fresh bills of exchange were forwarded by PNB to HK Bank through an ante-dated forwarding schedule. It was dated as 13.12.1983 instead of 10.1.1984. Investigations further revealed that Bright Planet came into existence only on 9.12.1983 whereas the bills of exchange were dated 5.12.1983 and on this date Bright Planet was not in existence. Mr. Mohd. Tariq Khokar (PW-9), an officer of Esal, in his statement under section 161 Cr.P.C., has stated that in their Bill Book/Export Book, no entry with regard to these bills exists and that no such deal was ever entered into by Esal.

5. Learned trial court vide impugned judgment and order dated 13.3.1986 framed charge against A-1 and A-2 for the offence(s) under section 420 read with section 120-B IPC; and for the substantive offence under section 420 IPC. It was held that on the basis of false and forged bills of exchange, A-1 obtained credit to the tune of US $ 7.649 million and loan of US $ 2.351 million and cheated PNB to the tune of US$ 10 million. Learned trial court rejected the contention that there was no delivery of the property within the meaning of section 420 IPC and held that credit in Esals account amounts to delivery of the property.

6. Learned trial court also held that prima facie there was collusion between Rajinder Sethia, Chairman of Esal group and directors of Al globe and Bright Planet. The directors of the latter two companies, who at the relevant time dealt with the bills of exchange and accepted them, prima facie were also involved in the conspiracy. It was held that Fahin Nasim, one of the directors of Esal, who had signed the bills of exchange on behalf of Esal, should be arrayed as an accused as documents were passed on to the bank under his signatures. Learned trial court took cognizance against directors of Al globe and Bright Planet under section 190(1)(b) Cr.P.C. for the offences under section 120-B IPC read with section 420 IPC and the substantive offence under section 420 IPC; CBI was directed to collect their names and to file supplementary charge sheet so that they could be summoned.

7. It may be noted here that forged bills of lading, which were submitted in support of the bills of exchange, and the relevant bank vouchers, on the basis of which loan was sanctioned by A-2, could not be recovered during investigations. Learned trial court held that in the absence of bills of lading on record, it cannot be presumed that those were forged documents. It was also held that as drawee companies were in existence and that official of Esal, who signed the invoices/bills of exchange which were submitted in the bank, had the authority to do the needful, therefore, bills of exchange cannot be presumed to be forged documents as defined under section 464 IPC. On this reasoning, the accused were not charged for the offences under sections 467/468/471 IPC read with section 120-B and also substantive offences under these sections. CBI has challenged this part of the order. I have heard learned counsel for the parties and have been taken through the record. Mr. Amarjit Singh (A-2), appeared in-person, and argued the matter at length.

8. Law governing the powers of the court, while considering the question of framing the charge is well settled by several authoritative pronouncements. At the stage of framing charge, the court is required to consider statements of witnesses recorded during investigation, and documents filed along with charge sheet, with a view to find out whether a prima facie case for trial has been made out or not. If the material collected during investigations gives rise only to a suspicion, it may not be enough, but if it gives rise to a grave suspicion which has not been explained, it would be enough to frame the charge. At this stage, court has the limited power to sift and weigh the evidence, but a roving inquiry is not permissible. It would be useful to recall the principles laid down by the Supreme Court in Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4 [LQ/SC/1978/327] . It was held: -

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [Emphasis supplied]

9. The question which first arises for consideration is whether the four bills of exchange dated 5.12.1983 drawn by Esal in favour of Bright Planet are forged documents, as admittedly Bright Planet came into existence only on 9.12.1983. Learned counsel for the CBI argued that the four bills of exchange dated 5.12.1983 for US$ 10.4 million were drawn on Bright Planet which did not exist on 5.12.1983, therefore, these are forged documents within the meaning of section 464 IPC. Learned counsel for the respondents argued that bills can be drawn on a company which the drawer know that it was in the process of being brought into existence and will certainly come into existence by the time bills were presented for acceptance in Hong Kong. It was also argued that the bills were earlier issued in the name of Al globe on 5.12.1983, since new bills were in substitution of the earlier bills, they were made of that date. Ante-dating by itself does not constitute an offence of forgery, unless it is done with the fraudulent or dishonest purpose. Learned counsel argued that both the drawees, Al globe and Bright Planet, were in-house companies of Esal and from the point of view of PNB, date on which the bills were drawn was totally irrelevant. Learned counsel lastly argued that this mode of forgery is neither mentioned in the charge sheet nor the trial court had taken note of it and a new case cannot be permitted to be set up in the revisional court.

10. The offence of forgery is defined in sections 463 and 464 IPC. The two have to be read together for deciding whether a person has committed the offence or not. Forgery, as defined in section 463 IPC, is making of a false document with an 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 an intent to commit fraud. To constitute offence of forgery, it is necessary to prove that: (1) the document or part of the document is false; (2) it was made dishonestly or fraudulently in one of the three modes specified in section 464; and (3) it was made with intent

(a) to cause damage or injury to the public, or any person; or (b) to support any claim or title; or (c) to cause any person to part with property; or (d) to cause any person to enter into an express or implied contract; or (e) to commit fraud or that fraud may be committed. Under section 463 IPC, making of a false document with any of the intents mentioned therein is forgery. Section 464 states when a person is said to have made a false document. Three modes are specified in section 464 for making a false document. This section is wide enough to cover cases where the document is altered or made dishonestly or fraudulently. There are seventeen illustrations and three explanations appended to this section. For the purpose of this case, It would be enough to refer to explanation No.2 and illustration under the same. It reads:-

Explanation 2. -- The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. The illustration to this explanation reads:-

A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. A commits forgery.

11. To recall the facts at the risk of repetition, on 7.12.1983, A-1 forwarded to PNB four bills of exchange dated 5.12.1983 for US$ 10.4 million drawn on Al globe. One bill was accepted by the drawee and remaining three bills were not honoured stating that due dates were not acceptable to them. The collecting bank informed PNB about the dishonouring of the bills on 3.1.1984 and the information was passed on to Esal the same day. In the letter dated 6.1.1984 written by Esal to PNB, it was stated that bills of exchange were erroneously drawn in favour of Al globe and four bills dated 5.12.1983 drawn on Bright Planet were forwarded to PNB. There is enough documentary and oral evidence collected during investigations to prima facie show that no sugar, as reflected in the bills, was shipped. The argument of learned counsel for the respondents that the company was in the process of making and it was likely to come into existence is irrelevant. The prosecution case is that sugar, as reflected in the bills of exchange, was never shipped. The ship(s) was/were not at the port shown in bills of lading and did not have the capacity to carry sugar shown to be loaded on them. Prosecution case is that goods were initially shown to have been shipped through vessel Golden Venture and the documents were accepted by Al globe. Thereafter, fresh bills of exchange were forwarded to Bright Planet. This company was incorporated with a meagre paid up capital of HK$ 200 only. What happened to earlier bills is not known. None of these bills were paid. These were kept pending for more than one year till investigations began and documents were retrieved; only then bills of lading were found to be substituted and it was found that goods were shown to have been sent through ships Elani and Summer Sun instead of Golden Venture. If the PNB had known that drawee is a non-existing company or that transaction reflected in the bills of exchange was not genuine, credit of US$ 7.649 million could not be given. In the facts at hand, it is prima facie clear that on 5.12.1983, Bright Planet was not in existence and four bills of exchange were dishonestly drawn in the name of fictitious person. If these bills were drawn on a subsequent date, then these were ante-dated. In both the situations, these would be false documents within the meaning of section 464 IPC and findings to the contrary by learned trial court are not sustainable.

12. Learned counsel for the CBI also argued that fresh set of bills of exchange in the name of Bright Planet were submitted to PNB only on 6.1.1984. These were sent for collection to the HK Bank on 10.1.1984, but through the ante-dated forwarding schedule. The forwarding schedule was dated 13.12.1983 instead of 10.1.1984. Mr. S.N. Banerjee (PW-1) and Mr. J.K. Jain (PW-2) have stated that it could not have been done. Amarjit Singh (A-2), referring to the statement of PW-3, argued that the forwarding schedule was ante-dated by this witness under the instructions from Mr. J.K. Jain (PW-2). The new forwarding schedule bearing the earlier date and the same numbers was sent to avoid confusion.

13. I have considered the rival contentions. We are still at the charge stage. The charge can be framed even when the material collected during investigations gives rise to a grave suspicion. As noted above, PW-1 and 2 have stated that the bank forwarding schedule sent on 10.1.1984 was ante-dated as 13.12.1983 showing the name of the drawee as Bright Planet, which fact came to the notice of the bank only on 6.1.1984. One fails to understand as to when one bill of exchange was accepted by Al globe, how the bank could accept four bills of exchange in the name of the new drawee Bright Planet. Other incriminating circumstances appearing against Amarjit Singh (A-2) are: (i) A-2, as General Manager of PNB, London, had issued specific instructions on 27.5.1983 directing the bank staff that no facility even within the existing sanctioned limit was to be permitted without his written permission in the account of Esal and other in-house companies of Sethias; these all accounts of Esal were being personally monitored and supervised by him; (ii) A-2 did not keep duplicate copies of the documents which were forwarded for collection, including the bills of lading in the bank; (iii) the bank did not have any control over the goods as per the bills of exchange; (iv) benefit of insurance of the goods was not available to the bank; and (v) A-2 rushed through the transaction by giving credit of US$ 7.649 million and a further loan of US$ 2.351 million on the day when the documents were submitted i.e. 7.12.1983. The documents, however, were forwarded for collection after 6 days i.e. only on 13.12.1983. Prosecution case is that, this was done in violation of the instructions contained in the Foreign Exchange Book of PNB. The documents should have been examined more meticulously to rule out the fraud and forgery, but for the complicity of A-2, it would not have been possible for Esal to obtain credit of the said amount. These incriminating circumstances, when collectively viewed, are enough for the purpose of framing the charge of forgery.

14. Learned counsel for the CBI next argued that learned trial court declined to frame the charge against the accused persons in respect of the bills of lading on the ground that bills of lading were not recovered during investigations. It was argued that original bills of lading were either with M/s. Al globe or M/s. Bright Planet. Learned trial court has taken cognizance against their directors. There is enough material to indicate that vessel Golden Venture, Elani and Summer Sun were neither at the port shown in the bills of lading on the date when the sugar was claimed to have been loaded on them; nor they had the capacity to carry sugar shown to be loaded on them. The copies of forged documents happened to be with the accused persons and there is every possibility that originals were destroyed by them with an intent to save from the offences. Learned counsel argued that, in these circumstances, prosecution is entitled to lead secondary evidence to prove offence of forgery in respect of bills of lading. There is merit in this submission. Section 65 of the Indian Evidence Act, 1872 provides when secondary evidence relating to the documents can be given. It reads: -

65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases

(a) (b) xxx xxx xxx

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

15. There is enough material to prima facie show that bills of lading were not genuine and there is every possibility of the same having been destroyed by the accused. Prosecution would be entitled to prove the same through the secondary evidence. In view of the above, finding of the learned trial court that no charge under section 467/468/471 IPC can be framed for forging the bills of lading because those were not recovered is not sustainable.

16. For the foregoing reasons, revision petition is allowed. The impugned order dated 13.3.1983 discharging the accused persons for the offences under section 467/468 read with section 471 IPC is set aside. Learned trial court is directed to frame additional charge under the above-noted sections against the accused persons and proceed with the trial as expeditiously as possible, preferably on day-to-day basis. Any observation made herein would not affect merits of the case during trial.

17. Petition stands disposed of.