2ND AMITY NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2022

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2ND AMITY NATIONAL TRIAL ADVOCACY

MOOT COURT COMPETITION,2022

IN THE COURT OF SESSIONS JUDGE AT TIZ HAZARI, NEW DELHI

C.C. NO.

STATE (NCT OF DELHI)

(PROSECUTION)

V.

ABHINAV SINGH
(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTIONS 376, 466, 420, 406
OF THE INDIANA PENAL CODE, 1860

UPON SUBMISSION TO THE HON’BLE SESSION COURT

MEMORIAL ON BEHALF OF THE DEFENCE

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TABLE OF CONTENTS

Index of Authorities 3-4

• Table of Cases 3
• Books 4
• Websites 4
• Statutes 4
Statement of Jurisdiction 5
Statement of Facts 6-7
Statement of Issues 8
Summary of Arguments 9-10
Arguments Advanced 11-25
Issue-I: Whether Abhinav is liable for the rape of Soumya u/s 376? 11-15
Issue-II: Whether Abhinav is liable for Forgery u/s 420, 463, 464, 466? 16-21
Issue-III: Whether Mr. Abhinav has defrauded Miss Soumya under section 406 of 21-25
IPC while getting the house registered in his own name?
Prayer 26
List of Witnesses 27

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INDEX OF AUTHORITIES

Table of Cases:

1. Anu Gill v. State and another, 2001 V AD (Delhi) 411

2. Binod Kumar &Ors v. State Of Bihar &Anr, (2014) 10 SCC 663
3. Chaina Ram v. State of Rajasthan and ors., S.B. Criminal Miscellaneous (Petition) No.
3338/2016
4. Chelloor Mankkal Narayan v. State of Travancore, AIR 1953 SC 478 : 1954 Cr LJ 102
5. Deelip Singh v. the State of Bihar, 2005 1 SCC 88
6. Deepak Gulati v. the State of Haryana, (2013) 7 SCC 675
7. Deochand Durlabhji Jogi v. Madanlal Gopikisan Sharma, (1968) 70 BOMLR 280
8. Dhruvram Murlidhar Sonar v. State of Maharashtra and Ors., S.L.P (Criminal) No.
6538 of 2018
9. Md. Ibrahim and Ors. v. State of Bihar and Anr., (2009) 8 SCC 751
10. Indian Oil Corporation v. NEPC India Ltd. and Ors. 2006 (2) SCC 11905
11. Jaswantrai Manilal Akhaney v. the State of Bombay, AIR 1956 SC 575
12. Mahadeo Prasad v. State of West Bengal, AIR 1954 SC 724
13. Mir. Nagvi Akari v. CBI,(2009) 15 SCC 643
14. Mohan v. State of Maharashtra, Criminal Appeal No.198 of 2019
15. Mohd. Ali alias Guddu v. State of Uttar Pradesh, (2015) 7 SCC 272
16. Onkar Nath Mishra v. State (NCT of Delhi), (2008)2 SCC 561
17. Kanumukkala Krishnamurthy v. State of A.P., AIR 1965 SC 333
18. Pramod Suryabhan Pawar v. State of Maharashtra and Another, (2019) 9 SCC 608
19. Ranjit Hazarika v. State of Assam,(1998) 8 SCC 635
20. Ram Jas v. the State of U.P., (1970)2 SCC 740
21. Rajesh Bajaj v. State NCT of Delhi, AIR 1999 SC 1216
22. R. Venkatkrishnan v. CBI, (2009) 11 SCC 737
23. RK Dalmia v. Delhi Administration, AIR1962 SC 1821
24. R.S. Nayak v. A. R. Antulay and anr., (1986) 2 SCC 716
25. S.W. Palantikar v. State of Bihar, 2002 44 ACC 168 SC
26. Salimbhai Hamidbhai Menon v. Nitesh Kumar Maganbhai Patel and Ors., AIR 2021
SC 4109

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27. Sheila Sebastian v. R. Jawaharaj, AIR 2018 SC 2434

28. Sonu @ Subhash Kumar v. State of Uttar Pradesh and Another, AIR 2021 SC 1405
29. Sushil Suri v. Central Bureau of Investigation, AIR 2011 SC 1713
30. State v. Parasram, AIR 1965 Raj 9
31. State Of Gujarat v. Jaswantlal Nathalal, AIR 1968 SC 700
32. State of UP v. Ranjit Singh, AIR 1999 SC 1201
33. The Queen v. Lock, (1872) LR 2 CCR 10, 11
34. Vimla v. Delhi Administration, AIR 1963 SC 1572
35. Yedla Srinivasa Rao v. the State of A.P.,(2006)11 SCC 615
36. Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158

STATUTES

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indiana Evidence Act, 1872 (Act 18 of 1872)
3. The Indiana Penal Code, 1860 (Act 45 of 1860)

BOOKS

1. Ratanlal and Dhirajlal, The Indian Penal Code, 33 (2011)

2. P.S.A. Pillai, Criminal Law, 13 (2017)
3. K D Gaur, Criminal Law: Cases and Materials, 6 (2009)
4. Gupta and Dighe, Criminal Manual, 7 (2007)
5. [Link], Criminal Procedure, 5(2011)
6. Harris, Criminal Law, 22(2000)
7. I, III, IV Nelson R. A. Indian Penal Code, 10 (2008)
8. Hill, McGraw, Criminal Investigation, 4(2004)
9. BatukLal, The Law of Evidence, 18(2010)
10. Ratanlal and Dhirajlal, The Law of Evidence, 22 (2006)

WEBSITES

1. [Link]
2. [Link]
3. [Link]

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STATEMENT OF JURISDICTION

The Hon’ble Court have the jurisdiction to try the instant matter under Sec. 177 r/w Sec. 209
of the Code of Criminal Procedure, 19731.

Section 177:
‘[Link] place of inquiry and trial-
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.’

r/w Section 209:

‘[Link] of case to Court of Session when the offence is triable exclusively by
it- When, in a case instituted on a police report or otherwise, the accused appears or is
brought before the Magistrate and it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall-
(a) Commit the case to the Court of Session;
(b) Subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
(c) Send to that Court the record of the case and the documents and articles, if any, which are
to be produced in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.’

The Counsels for the Defence most respectfully submit to this jurisdiction of the
Hon’ble Sessions Court.

1
The Code of Criminal Procedure, No. 2 of 1974

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STATEMENT OF FACTS

The Beginning

Mr. Abhinav Singh (Accused) aged 27 years, an Engineer in Delhi, and Ms. Soumya Garg
(Prosecutrix) aged 26 years, a Banker from Mumbai, met on a social media platform in the
May of 2020. They started chatting with each other, formed a romantic relationship, and even
met a few times.

The Start of a live-in relationship

Till January 2021, Soumya was transferred to Delhi. Even though initially reluctant for a live-
in due to hesitation of getting physical, Soumya decided to live with Abhinav on being
assured of marriage as may be feasible for both considering their job prospects and approval
from family members. The two rented a 1-BHK flat in SS Colony, Nangloi in New Delhi. To
get an apartment,Abhinavproduced allegedmarriage certificate that presented the two as a
couple, to satisfy the norms of the housing society of not renting the apartments to bachelors.

The genesis of cracks in the foundation of the relationship

Soon after, the two started fighting over a variety of petty issues. The major reason for these
constant fights was that Soumya was unhappy with the kind of locality they were living in as
according to her it was not up to their standards and unsafe at night, along with Abhinav
always dogging the question of marriage. Soon, Abhinav bought a new flat in Aloft
Residency, Punjabi West, NewDelhifrom his own earnings, passive sources, and home loans
in his name and both shifted there in February 2022. Even then, their relationship did not
improve and fights continued. Despite repeated requests from Soumya, Abhinav refused to
transfer the new residence in her name despite Soumya emphasizing the fact that she too is
repaying the home [Link] would constantly allege that Abhinav has fooled her into a
live-in relationship and had no intention of marrying her despite establishing a physical
relationship on basis of the same.

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The unfateful day

On the morning of April 30, 2022, Soumya, in a shabby condition (hit on the head, sleeves
torn) reached the Punjabi West Bagh police station to lodge a complaint against Abhinav
under sections 376, 420, 406 and466 of Indiana Penal Code. The police began an
investigation on the matter and records the statement of all possible witnesses.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER ABHINAV IS LIABLE FOR THE RAPE OF SOUMYA UNDER

SECTION 376 OF IPC?

ISSUE 2

WHETHER ABHINAV IS LIABLE FOR FORGERY U/S 420, 463, 464 AND 466 OF
IPC?

ISSUE 3

WHETHER MR. ABHINAV HAS DEFRAUDED MISS SOUMYA UNDER SECTION

406 OF IPC WHILE GETTING HOUSE REGISTERED IN HIS OWN NAME?

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SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER ABHINAV IS LIABLE FOR THE RAPE OF SOUMYA UNDER

SECTION 376 OF IPC?

It is humbly submitted before this Hon’ble Court that the accused is not guilty of the offence
of rape of Ms. Soumya under Section 376 of The Indiana Penal Code, 1860 as the physical
relationship between the parties had clearly developed with the consent of the prosecutrix. In
the instant case, the prosecution has too many holes and grey areas and it would be
unreasonable to base the conviction on the testimony of the prosecutrix which is not
corroborated. The Counsel humbly asserts that the accused is not at all guilty of the offence
of rape under Section 376 of IPC.

ISSUE 2

WHETHER ABHINAV IS LIABLE FOR FORGERY UNDER SECTIONS 420, 463,

464,AND 466 OF IPC?

It is humbly submitted before the Hon’ble Court that the accused is not guilty of the offence
of forgery under Section 466 of the Indiana Penal Code and is not guilty of the offence of
cheating under Section 420 of the Indiana Penal Code as well. The accused had no part in
forging the marriage certificate and no connection between him and the alleged document can
be deduced as the same was never used by him. Consequently, the accused did not
dishonestly induce the Housing Society to deliver the property. The Counsel humbly submits
that it would not be justified in convicting the accused for the offence under Section 466 and
420 of IPC as the act was never committed by the accused.

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ISSUE 3

WHETHER MR. ABHINAV HAS DEFRAUDED MISS SOUMYA UNDER SECTION

406 OF IPC WHILE GETTING HOUSE REGISTERD IN HIS OWN NAME?

It is humbly submitted before the Hon’ble Court that the accused is not guilty of the offence
of criminal breach of trust under the Section 406 of IPC as in the instant case, no entrustment
regarding any property existed between the prosecutrix and the accused, and the accused did
not dishonestly misappropriate or convert to his own use any property of the prosecutrix.
Therefore, the prerequisites of Section 405 are not satisfied. Hence, it is submitted that
accused is not liable of the offence under Section 406 of IPC.

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ARGUMENTS ADVANCED

ISSUE 1
WHETHER ABHINAV IS LIABLE FOR THE RAPE OF SOUMYA UNDER
SECTION 376?

It is humbly submitted before this Hon’ble Court that Mr Abhinav (hereinafter referred to as
the “accused”), is not guilty of the offence of rape of Ms. Soumya (hereinafter referred to as
the “prosecutrix") under Section 376 of Indiana Penal Code (hereinafter referred to as
“IPC”).[1.1] Consequently, the consent given by the prosecutrix is not a consent procured by
misconception of fact as defined under Section 90 of IPC.[1.2] Additionally,in the instant
case, the presumption of Section 114-A of the Indiana Evidence Act, 1872 is clearly
rebuttable.[1.3]

[1.1]. THE ACCUSED HAS NOT COMMITTED THE RAPE OF THE

PROSECUTRIXUNDER SECTION 376 OF IPC.
The offence of rape in its simplest form is ‘the ravishment of a woman, without her consent,
by force, fear, or fraud, or as ‘the carnal knowledge of a woman by force against her will. The
accused in the instant case has not committed the rape of the prosecutrix because to constitute
the offence of rape under Section 375 of IPC, the following conditions must necessarily be
satisfied:
(i) There was sexual intercourse [A] and;
(ii) The intercourse was without consent [B].

[A]. THERE WAS SEXUAL INTERCOURSE BETWEEN THE ACCUSED AND THE
PROSECUTRIX.
It is an established fact that is neither denied by the prosecution nor the defence in the present
case that the accused and prosecutrix had formed a physical relationship with each other since
January 2021 when they came into a live-in relationship. It is also not disputed that both the
parties were deeply in love and mutually came to the aforesaid conclusion.
Therefore, the existence of a physical relationship between the accused and the prosecutrix is
an established fact in the instant case.

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[B]. THE SEXUAL INTERCOURSE WAS WITH THE CONSENT OF THE

PROSECUTRIX.
The Counsel humbly submits before this Hon’ble Court that the sexual relationship between
both the parties i.e., the accused and the prosecutrix was indeed a consensual one. In his
statement, accused stated that it was a matter of joy for both when the prosecutrix moved to
Delhi and they mutually decided that they were ready for a physical relationship. He loved
her a lot and decided to marry her when he will become more stable in terms of his career and
family dynamics. This statement is also supported by the statement of DW2 that the accused
had told him that he loves Ms Soumya, wanted to marry her, and for the same purpose
introducedtheprosecutrixto him during the house-warming party.
Therefore, the Counsel submits that the physical relationship between the parties had clearly
developed with the consent of the prosecutrix, as there was neither a case of any resistance
nor had she raised any complaint anywhere at any time even though she had been living with
the accused for several months2.

[1.2]. CONSENT OF THE PROSECUTRIX WAS NOT VITIATED BY A

MISCONCEPTION OF FACT ARISING OUT OF A PROMISE TO MARRY.
“Consent” means an active will in the mind of a person to permit the doing of the act
complained of, and knowledge of what is to be done, or of the nature of the act that is being
done, is essential to consent to an act.3 The concept and dimensions of 'consent' in the
context of Section 375 IPC has been interpreted considering different angles. Though Indiana
Penal Code does not define 'consent' in positive terms, what cannot be regarded as 'consent'
under the Code is explained by Section 90, which states that “consent is no consent if it is
given: firstly, under fear of injury or secondly, under a misconception of fact and the accused
have knowledge or has reason to believe that the consent was given by the prosecutrix under
the fear of injury or misconception of fact”.
To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a
promise to marry, two instances must be proved, namely4:
• The promise of marriage must have been a false promise, given in bad faith and with
no intention of being adhered to at the time it was given; and

2
Chaina Ram v. State of Rajasthan and ors., S.B. Criminal Miscellaneous (Petition) No. 3338/2016
3
The Queen v. Lock, (1872) LR 2 CCR 10, 11
4
Pramod Suryabhan Pawar v. State of Maharashtra and anr., Criminal Appeal No. 1165 of 2019

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• The false promise itself must be of immediate relevance or bear a direct nexus to the
woman’s decision to engage in the sexual act.
However, when we delve into the provisions of Section 90, various landmark judgments5 laid
down by the Hon’ble Supreme Court and other Hon’ble High Courts, we conclude that a 3-
part test needs to be satisfied to bring the consent under misconception within the ambit of
“no consent” under Section 90 of IPC, which is as follows:
Firstly -Is it a case of passive submission in the face of psychological pressure exerted or
allurements made by the accused or was it a conscious decision on the part of the prosecutrix
knowing fully the nature and consequences of the act she was asked to indulge in?
Secondly -Whether the tacit consent given by the prosecutrix was the result of a
misconception created in her mind as to the intention of the accused to marry her?
Thirdly -The allied questionis whether the promise to marry, if made by the accused, was
false to his knowledge and belief from the very inception and it was never intended to be
acted upon by him?
The Counsel humbly submits that the consent of the prosecutrix in the instant case was not
obtained under any allurement or deception on the pretext of marriage and the promise of
marriage was not a misconception of fact at all. The accused loved the prosecutrix a lot and
from its very inception, wanted to marry her. This can also be inferred by the statements of
DW2 and DW3 that the accused was very much in love and bought the flat in Punjabi Bagh
West for the prosecutrix’s convenience and to assure her of his dedication. He also took the
loan under his name so that the prosecutrix wouldn’t be intimidated by the burden of such a
colossal sum. Thus, concluding the fact that he had every intention to marry her.
Specifically, in the context of a promise to marry, there is a distinction between a false
promise given on the understanding by the maker that it is false and will be broken, and the
breach of a promise which is made in good faith but subsequently not fulfilled, for which the
maker is prima facie accountable for damages and suits under civil law6.
The accused had no intention to not fulfil his promise and no evidence proves conclusively
that he never intended to marry her. Perhaps he wanted to but was not able to gather enough
financial input to fulfil his wish of marrying with full pomp and show, and even if he

5
Deelip Singh v. State of Bihar, 2005 1 SCC 88; Dhruvram Murlidhar Sonar v. State of Maharashtra and ors.,
(Special Leave Petition No. 6538 of 2018)
6
Supra 4

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subsequently did come to the decision to not marry the prosecutrix, it would have been a
mere breach of promise and not a false promise7.
Further contention raised by the defence is that the prosecutrix agreed to have sexual
intercourse on account of her love and passion for the accusedand permitted him liberties
which, if at all, are permitted only to a person with whom one is in deep love8, and not on the
account of any misrepresentation. The prosecutrix is an adult individual who made a
reasonable choice after carefully evaluating the various alternatives and possible
consequences arising out of her actions and inactions and thus, consented to such action of
forming a physical relationship.
The Counsel humbly asserts that it cannot be denied that rape causes the greatest distress and
humiliation to victim but at the same time a false allegation of rape can cause equal distress,
humiliation, and damage to the accused as well. Hence, the accused must also be protected
against the possibility of such false implications.

[1.3]. THE PRESUMPTION UNDER SECTION 114-A OF THE INDIANA

EVIDENCE ACT, 1872.
Section 114-A of the Indiana Evidence Act lays down that there will be a presumption of
absence of consent in certain instances of rape cases. Consensual sex on the false promise of
marriage to the prosecutrix amounts to consent on the misconception of facts under Section
90 of IPC and gives rise to a presumption under Section 114-A of the Evidence Act. Section
114-A states that in cases where9:
I. It is a proven fact that there has been intercourse;
II. The question is whether it was with or without consent;
III. The woman states before the court in her evidence that she had not
consented.

However, while it is mandatory to draw the presumption in view of the use of the expression
"shall presume", the presumption can be rebutted. What is provided is presumption and not
conclusive proof of the fact10. Thus, a clear presumption is raised in favour of the prosecution
but no similar presumption concerning rape is visualized as the presumption under Section

7
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
8
Gopal Oyan v. State Of Madhya Pradesh, [Link].C. No.37322/2021
9
Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615
10
Mohan v. State of Maharashtra, Criminal Appeal No.198 of 2019

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114-A which is extremely restricted in its applicability and at the same time cannot be
universally and mechanically applied to the facts of every case of sexual assault which comes
before the Court. Therefore, if proved otherwise by the accused, it would lead to the
conclusion that was never intended by the said Section.
So far as allegations of rape are concerned, the evidence of a prosecutrix must be examined
as that of an injured witness but it can never be presumed that her statement should, without
exception, be taken as the gospel truth.11 It is required to ascertain the existence of such direct
or circumstantial evidence as would lend assurance to the testimony of the prosecutrix.12 The
statement of the prosecutrix, therefore, is required to be assessed by considering the entirety
of evidence that may come before the Court.
The Counsel humbly submits that in the instant case, the prosecution has too many holes and
grey areas and it would be unsafe to base the conviction on the testimony of the prosecutrix
which is not corroborated13. Enough doubt is created about the veracity of the prosecutrix's
version and the benefit of the doubt must go to the accused as even if a sexual relationship
between two willing partners does not culminate in marriage, still the same will not amount
to rape, in the absence of any factor that vitiates the consent for sex14. A subsequent refusal to
marry or a failure to lead the relationship into a marriage is no factor that is sufficient to
constitute rape even if the partners had indulged in a physical relationship15.
In the light of the contentions, the Counsel on behalf of the accused humbly submits that the
instant case is the result of a lover’s quarrel and it should not be labelled as rape as the
reputation of the accused is also at stake and an allegation of this gravity could destroy
innocent lives.
Therefore, the Counsel humbly submits that charge under Section 376 of IPC against the
accused is not made and the Hon’ble Court would be justified in doing the same.

ISSUE 2
WHETHER ABHINAV IS LIABLE FOR FORGERY U/S 420, 463, 464 AND 466 OF
IPC?

11
Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635
12
Mohd. Ali alias Guddu v. State of Uttar Pradesh, (2015) 7 SCC 272
13
Supra 10
14
Pramod Suryabhan Pawar v. State of Maharashtra and Another, (2019) 9 SCC 608
15
Sonu @ Subhash Kumar v. State of Uttar Pradesh and Another, AIR 2021 SC 1405

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It is humbly contended before the Hon’ble Court that the accused is not guilty of the offence
of forgery under Section 466 of IPC [2.1]. Simultaneously, the accused is not guilty of the
offence of cheating under Section 420 of IPC as well [2.2].

[2.1]. THE ACCUSED IS NOT GUILTY OF FORGERY U/S 466 OF IPC.

The offence of “Forgery” as provided under Section 466 of IPC is the more aggravated form
of forgery, which has been defined under Section 463 of IPC. As per Section 466 of IPC, the
following three essential elements of forgery need to be fulfilled to constitute the offence:
[A]. The forgery committed must be in respect of one of the documents prescribed under
Section 466 of IPC.
[B]. It must be the forgery as defined under Section 463 of IPC.
[C]. It must be made in such a fraudulent or dishonest manner as defined under Section
464 of IPC.

However, none of the essential elements have been fulfilled in the given case.

[A]. THE ESSENTIAL INGREDIENTS OF SECTION 466 OF IPC ARE NOT FULFILLED
IN THE GIVEN CASE.

As aforementioned, the offence of “Forgery” under Section 466 of IPC is the more
aggravated form of forgery, however, forgery in this section is limited to certain documents
provided in the section itself, namely16-

• A register of birth, baptism, marriage, or burial, or a register kept by a public servant as

such; or
• A certificate or document purporting to be made by a public servant in his official
capacity; or
• An authority to institute or defend a suit, or to take any proceedings therein, or to confess
judgment; or
• A power of attorney.

However, the counsel for defence do not deny that marriage certificate is not a record of
marriage but the other essential elements required to attract the penal liability for the offence

16
State v. Parasram, AIR 1965 Raj 9

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of forgery under Section 466 of IPC are not fulfilled in the given case in respect of the
alleged marriage certificate.

[B]. NO FORGERY AS DEFINED UNDER THE SECTION 463 OF IPC HAS BEEN
COMMITTED.

The making of a “false document” with any of the criminal intents as specified in Section 463
of IPC is what constitutes the offence of “forgery”. According to Section 463 of IPC,
whoever makes a false document or electronic record or part of them, with a criminal
intention to use it as genuine to17-
• cause damage or harm to: (i) the public, (ii) any person, (iii) to support any claim or
title, or
• or to cause any person to part with property, or
• entering a contract, or
• to commit fraud,

commits the offence of forgery under this section.

The Counsel humbly submits that in the instant case, the accused did not forge the marriage
certificate and none of the requirements of Section 463 are fulfilled in the given case. In few
judgements it is quoted that, “the concept of fair trial entails familiar triangulation of interests
of the accused, the victim and the society and it is in the community that acts through the
State and prosecuting agencies.”18
In order to sustain a conviction for offence of forgery, first it has to be proved that forgery
was committed under section 463 and that ingredients under Section 464 should also be
satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person
cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as
the offence of forgery would remain incomplete.

[C]. THE ALLEGED MARRIAGE CERTIFICATE WAS NOT MADE BY THE ACCUSED
IN ANY SUCH FRAUDULENT OR DISHONEST MANNER AS PRESCRIBED UNDER
THE SECTION 464 OF IPC.

17
Sushil Suri v. Central Bureau of Investigation, AIR 2011 SC 1713; State of UP v. Ranjit Singh, AIR 1999 SC
1201
18
Salimbhai Hamidbhai Menon v. Nitesh Kumar Maganbhai Patel and Ors., AIR 2021 SC 4109; Zahira
Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158

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When a document is prepared with the intention to deceive an individual and employing
deceit, an unfair advantage is obtained by one person or an unfair loss is caused to the other
person, i.e., benefit or advantage to the deceiver, but no corresponding loss to the deceived,19
then it is said to be a fraud.20
In the landmark judgment of Sheila Sebastian v. R. Jawaharaj,21 Hon’ble Apex Court held
that Section 464 of IPC states how the forgery of the documents occurs and provides
exclusively that the individual who makes a false document solely can be held liable under
this provision.
Section 464 of IPC precisely provides that to constitute forgery, the false document must
either be legally capable of attaining the fraud thus intended or it must appear as a true
document, possessing some legal validity22. Under this section, what is essential is that the
accused person must make a document with the intention of making it to be believed that it
was signed by or by the authority of someone else, while he knows that it was not so made or
authorized by that person.23
In Mir Nagvi Askari vs. Central Bureau of Investigation24, this Court, after analysing the
facts of that case, came to observe that in order to constitute the offence of forgery under this
section, the document must be-
a) false in fact;
b) it must have been made fraudulently and dishonestly25; i.e.
• it is made or executed by the accused, claiming to be someone else or authorized`
by someone else; or
• it is altered or tampered; or
• it is obtained by practising deception, or from a person not in control of his senses.
c) the forged document must be made with one of the intents specified in Section 463 of
IPC26.

However, if we delve meticulously into the contents of the marriage certificate in the instant
case, the Counsel humbly seeks to bring the attention of the Hon’ble Court to the fact that the

19
Vimla v. Delhi Administration, AIR 1963 SC 1572
20
State of UP v. Ranjit Singh, AIR 1999 SC 1201
21
Sheila Sebastian v. R. Jawaharaj, AIR 2018 SC 2434
22
Badan Singh, (1922) 3 Lah. 373
23
Re: Venkatasuryanarasimha Rao v. Unknown, AIR 1955 Andhra 82
24
Mir. Nagvi Akari v. CBI, (2009) 15 SCC 643
25
Md. Ibrahim and Ors. v. State of Bihar and Anr., (2009) 8 SCC 751
26
Daniel Hailey Walcot v. State, AIR 1968 Mad 349

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marriage certificate was issued on25th of February, 2021 with the address of the current
residence of the accused and the prosecutrixi.e., B-12, Aloft Residency, Punjabi Bagh West,
New Delhi which he bought approximately a year after such issuance date. A valid link as to
why Mr. Abhinav would forge a marriage certificate for an apartment which he bought
approximately a year after such issuance date cannot be logically associated as the accused
was not even financially capable of buying an apartment at that time and got a promotion
around December 2021. After submitting to the insistence of the prosecutrix, the accused
decided to invest his savings into purchasing a new home viewing his future with her.
In the light of the aforesaid argument, the Counsel humbly submits that no benefit on the part
of the accused could be ascertained using the alleged marriage certificate and therefore, the
said document cannot be attributed to the accused, by virtue of which the accused is not
guilty of the offence of forgery under section 463, 464 and 466 of IPC.

[2.2]. THE ACCUSED IS NOT GUILTY OF CHEATING U/S 420 OF IPC AS WELL.
Cheating as an offence is also made punishable under Section 420 of IPC, which is the
aggravated form of Section 417 that provides the punishment for simple cheating. Under
Section 420 of IPC, the following essentials are required to be fulfilled:
Firstly, there must be cheating.
Secondly, the accused must:
i. dishonestly induce the person deceived to deliver any property to any person; or
ii. make, alter, or destroy any valuable security; or
iii. or anything which is signed or sealed and capable of being converted into a valuable
security;
in whole or in part.
The defence humbly submits that the accused is not guilty of the offence of cheating as the
prerequisites of the offence of cheating as per Section 415 of IPC are not fulfilled in the
present case [A]. Consequently, the accused did not dishonestly induce the Housing Society
to deliver the property i.e., conferring the apartment on rent as well [B] going on to fulfil
none of the essentials of Section 420 of IPC.
A. THE PREREQUISITES OF CHEATING AS PER SECTION 415 OF IPC ARE NOT
FULFILLED.

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The first essential ingredient of Section 420 of IPC i.e., the offence of “cheating” has been
defined in Section 415 of IPC. It is committed in order to gain profit or an advantage from
another person by using some deceitful means. The person who deceives another knows for a
fact that it would place the other person in an unfair situation.
Under Section 415 of IPC, cheating can be committed in either of the two ways:

• Where, by practicing deception the accused fraudulently or dishonestly induces that

person to deliver any property to any person or to consent that any person shall retain
any property; or
• Where, by deception practiced upon a person the accused intentionally induces a
person to do or omit to do anything which he would not do or omit if he were not so
deceived, and the act or omission causes or is likely to cause damage or harm to that
person in body, mind, reputation, or property27.

It must also be established that the intention to deceive was in existence at the time when the
inducement was offered28.

In the instant case, the accused had no intention at all to deceive the Housing Society and did
not commit the offence of cheating because as established earlier, the accused, by the time of
the issuance of such alleged marriage certificate, would not be aware of his Aloft Residency
and had no reason whatsoever to produce the said document on basis of such a prediction.29
Conclusively, there is the absence of ‘mens rea’ on the part of the accused as the offence in
consideration was never committed by him, and no scope of any wrongful gain on his part or
wrongful loss on the part of the Housing Society can be attributed based on the same.

The Counsel humbly submits that in the instant case, the accused is not guilty of the offence
of cheating as the essential elements of the offence of cheating as per Section 415 of IPC are
not fulfilled.

B. THE ACCUSED DID NOT INDUCE THE HOUSING SOCIETY TO CONFER THE
APARTMENT ON RENT TO HIM DISHONESTLY.

27
R.S. Nayak v. A. R. Antulay and anr., (1986) 2 SCC 716; Kanumukkala Krishnamurthy v. State of A.P., AIR
1965 SC 333; Ram Jas v. State of U.P., (1970)2 SCC 740; Rajesh Bajaj v. State NCT of Delhi, AIR 1999 SC
1216
28
Mahadeo Prasad v. State of W.B, AIR 1954 SC 724
29
Supra 18

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The Counsel humbly proffers that, in the present case, the accused ipso facto did not cheat30
the housing society (as established earlier), nor did he represent himself and the prosecutrix
to be married through the alleged marriage certificate and took advantage of the same31. Also,
no delivery of property can be identified as the renting of the apartment was realized through
fraud or by practicing any sort of deception or inducement on the part of the accused through
the alleged marriage certificate as the same in itself suffers from certain inconsistencies.32

Therefore, the Counsel humbly submits that the Trial Court would not be justified in
convicting the accused for the offences u/s 466 and 420 of IPC as the act was never
committed by the accused, and no essential conditions to constitute the said offences are
fulfilled in the present case and the same has been duly justified by the defence in this issue.

ISSUE 3

WHETHER MR. ABHINAV HAS DEFRAUDED MISS SOUMYA UNDER SECTION

406 OF IPC WHILE GETTING HOUSE REGISTERED IN HIS OWN NAME?

The Counsel on behalf of the Prosecutrix humbly submits before the Hon’ble Court that the
accused is not guilty of the offence of criminal breach of trust under Section 406 of IPC.

The Hon’ble Delhi High Court held in the case of Anu Gill v. State and another33Section
406 of IPC provides punishment for the offence of criminal breach of trust while Section 405
of IPC defines the said offence and Section 405 of IPC states that the term “criminal breach
of trust” would, inter alia, mean using or disposing of the property by a person who is
entrusted with or has otherwise dominion over the property and closely corresponds to the
offence of embezzlement under the English law. The ownership or beneficial interest in the
property in respect of which criminal breach of trust is committed must be in some person
other than the accused and the latter must hold it on account of some person or in some way
for his benefit.34

30
Salimbhai Hamidbhai Menon v. Nitesh Kumar Maganbhai Patel and Ors., AIR 2021 SC 4109
31
Ashwinbhai Hirabhai Patel v. State of Gujarat, Misc. No. 18419 of 2018
32
Supra 21
33
Anu Gill v. State and another, 2001 V AD (Delhi) 411
34
Chelloor Mankkal Narayan v. State of Travancore, AIR 1953 SC 478

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To constitute the offence provided under Section 406 of IPC, the following essentials must
necessarily be fulfilled35:

I. A person must be entrusted with property or any dominion over that property; and
II. The person entrusted
a) Dishonestly misappropriates the property or converts to his own use that property;
or
b) Dishonestly uses or disposes of that property or wilfully suffers any other person to
do so in violation-
• of any direction of law prescribing the mode in which such trust is to be discharged;
or
• of any legal contract made touching the discharge of such trust.

It is engrossing that this offence consists of any one of four positive acts, namely,
misappropriation, conversion, use or disposal of property.

The Counsel for the Defence humbly asserts in the instant case that there existed no
entrustment between the prosecutrix and the accused regarding any property[3.1], and the
accused did not dishonestly misappropriate or convert to his own use any property of the
prosecutrix [3.2]. Therefore, no prerequisite of the offence of criminal breach of trust has
been satisfied and the accused is not liable for the same.

[3.1]. NO ENTRUSTMENT EXISTED BETWEEN THE PROSECUTRIX AND THE

ACCUSED REGARDING ANY PROPERTY.

For the application of Section 405 of IPC, there must be entrustment of property. The term
“entrustment” in its most general significance carries with it the implication that the person
handing over any property or on whose behalf that property is handed over to another,
continues to be its owner and does not imply the conferring of any proprietary right at all36.

Further, the person handing over property must have confidence in the person taking the
property so as to create a fiduciary relationship.37Additionally, the word “property” is not
restricted to movable property in this Section of IPC.38

35
Supra 33
36
Lord Sumner in Lake v. Simmons, (1927) AC 487
37
State of Gujarat v. Jaswantlal Nathalal, AIR 1968 SC 700

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The Counsel humbly proffers that the accused is not liable for the offence of criminal breach
of trust in the instant case as there was no entrustment which existed between the prosecutrix
and the accused regarding any property39. The accused, inter alia, bought the apartment in
Aloft Residency with his own hard-earned money under his name and took a loan under his
name for the same. The prosecutrix did not invest even a single penny in buying the
apartment nor in furnishing it. Instead he was the one to turn down the offer of joint home
loan as per the statement of the prosecutrix herself.

Also, so far as the issue of the prosecutrix contributing to the household expenditure is
related, the Counsel humbly seeks to draw the attention of the Court to the fact that the
accused and the prosecutrix were in a live-in relationship. It is unsurprisingly common for
couples in a relationship of this nature to contribute to household expenditures, which can
occasionally lead to either party spending more than the other. This is a case of sharing
expenses and there is no entrustment at all within the meaning of that expression, as used in
Section 405 of the Indian Penal Code.40 The issue of the accused buying the house and the
matter regarding who bore the household expenditure are profoundly different and must not
be treated as similar. An act of breach of trust involves a civil wrong in respect of which the
person wronged may seek his redress for damages in a civil court but only a breach of trust
with mens rea gives rise to criminal prosecution.41Further, no mens rea on the part of the
accused can be detected in the present case.

In the light of the aforementioned arguments, no case of criminal breach of trust is made out
and the essential ingredients of Sections 405 of IPC are missing42, hence, it has been
established that there was no entrustment of property by the prosecutrix in the hands of the
accused43.

[3.2]. ACCUSED DID NOT DISHONESTLY MISAPPROPRIATE OR CONVERT ANY

PROPERTY OF THE PROSECUTRIX TO HIS OWN USE.

Section 405 of IPC is very broad in its approach and dishonest intention is the essence of this
offence. It provides that a person commits a criminal breach of trust if he dishonestly

38
RK Dalmia v. Delhi Administration, AIR 1962 SC 1821
39
Emperor v. John Mclver, AIR 1936 Mad 353
40
Deochand Durlabhji Jogi v. Madanlal Gopikisan Sharma, (1968) 70 BOMLR 280
41
S.W. Palantikar v. State of Bihar, 2002 44 ACC 168 SC
42
Binod Kumar & Ors v. State of Bihar & Anr, (2014) 10 SCC 663
43
Indian Oil Corporation v. NEPC India Ltd. and Ors., 2006 (2) SCC 11905

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misappropriates or converts to his own use the property entrusted to him.44 The person will be
convicted only when it is shown that he misappropriated it or converted the same to his own
use or was a party to criminal breach of trust committed in respect of that property by any
other person.45 Dishonest intention is one of the essential ingredients of the offence of
criminal misappropriation and also of the offence of the criminal breach of trust.

The crucial word used in Section 405 IPC is dishonestly and therefore, it implies the
existence of mens rea, that is to say, a guilty mind. It is also essential to examine one of the
most essential ingredients of the offence of criminal breach of trust i.e., guilty intention or
'mens rea' on the part of that person who deceives another, to secure the conviction of a
person46.

It is an established fact that the accused bought the apartment in Aloft Residency with his
own earnings and took a loan to meet his needs. The prosecutrix did not invest even a single
penny in either buying the apartment or furnishing it. It has also been established in the point
that there was no entrustment regarding any property between the prosecutrix and the accused
as both the parties were in a live-in relationship and a mere sharing of expenditure by the
prosecutrix does not create an entrustment as conceived of by that section and failing which
there can be no misappropriation or conversion.47

Hence, it is humbly submitted that there was no entrustment of property between the
prosecutrix and the accused, the issue of criminal misappropriation48conversion to his
usedoes not arise.49 The ingredients of Section 405 of the Indian Penal Code are not present
at all in this case.50

Therefore, in the light of the above arguments, the evidence presented and the statement of
witnesses annexed herein, it is humbly submitted before the Hon’ble Trial Court, the accused
is not liable for the offence provided under Section 406 of IPC as the elements constituting
offence punishable under Section 405 IPC have not been established beyond reasonable

44
R. Venkatkrishnan v. CBI, (2009) 11 SCC 737
45
State of Rajasthan v. Kesar Singh, 1969 Cr. LJ 1595
46
Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575
47
Supra 42
48
Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561
49
Prof R K Vijayasarathy & Anr. v. Sudha Seetharam & Anr, Criminal Appeal No. 238 of 2019 Special Leave
Petition (crl) No. 1434 of 2018
50
Supra 42

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doubt and therefore, the Hon’ble Session Court would be justified in acquitting him of such
charges.

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PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, may
this Hon’ble Court be pleased to:

1. Acquit Mr Abhinav Singh of the offence of rape under section 376, cheating under
section 420, forgery under section 466, and criminal breach of trust under section 406
of Indiana Penal Code, 1860.
AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity, and Good Conscience.

All of which are most humbly and respectfully submitted.

Place: New Delhi S/d ____________________

Date: COUNSEL FOR DEFENCE

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LIST OF WITNESSES

1. Abhinav Singh (Accused) – Defence Witness 1 (DW1)

2. Aman(Friend of Abhinav) – Defence Witness 2 (DW2)
3. Rahul (Friend of Abhinav) – Defence Witness 3 (DW3)

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