In order to sustain a
conviction under Section 465, first it has to be proved
that forgery was committed under Section 463, implying
that ingredients under Section 464 should also be
satisfied. Therefore unless and untill 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
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of
IPC. As Collin J., puts it precisely in Dickins v. Gill,
(1896) 2 QB 310, a case dealing with the possession and
making of fictitious stamp wherein he stated that “to
make”, in itself involves conscious act on the part of the
maker. Therefore, an offence of forgery cannot lie against
a person who has not created it or signed it.
Keeping in view the strict interpretation of
penal statute i.e., referring to rule of interpretation
wherein natural inferences are preferred, we observe that
a charge of forgery cannot be imposed on a person who is
not the maker of the same. As held in plethora of cases,
making of a document is different than causing it to be
made. As Explanation 2 to Section 464 further clarifies
that, for constituting an offence under Section 464 it is
imperative that a false document is made and the
accused person is the maker of the same, otherwise the
accused person is not liable for the offence of forgery.
26. The definition of “false document” is a part of
the definition of “forgery”. Both must be read together.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 359-360 OF 2010
SHEILA SEBASTIAN V R. JAWAHARAJ & ANR.
Dated:May 11, 2018.
Citation:(2018)7 SCC 581
1 These criminal appeals are filed against the
impugned order dated 25.01.2008, passed by the High Court
of Judicature at Madras, Madurai Bench in Criminal Revision
Case Nos.523 & 546 of 2005, wherein the High Court has
allowed the criminal revisions and held that the conviction of
accused respondents is not sustainable under Section 465 of
the Indian Penal Code, 1860 [hereinafter ‘IPC’].
2. The case of the prosecution giving rise to these
appeals, in brief, is that the complainant Mrs. Doris
Victor (deceased mother of the appellant) was the owner
of a plot insurvey numbers 1777/1A, 1778/1, 1779/1
and 1779/2 in Valliyoor village. The complainant alleges
that, accused no. 1, (R. Jawaharaj), with the aid of an
imposter who by impersonating as Mrs. Doris Victor
created a Power of Attorney (hereinafter ‘PoA’) in his
name as if he was her agent. It was further alleged that,
using the aforesaid PoA the accused no. 1, attempted to
transfer the property of complainant by executing a
mortgage deed in favour of accused no. 2, (Rajapandi) for
a sum of Rs.50,000/-. After getting the information about
the aforesaid transaction, the owner of the property Mrs.
Doris Victor gave a complaint to the police which was
subsequently registered as FIR dated 14.03.1998. After
the completion of investigation, a final report was filed
against the aforesaid accused under Sections 420, 423
and 424, IPC. The complainant Mrs. Doris Victor died
after filing the complaint.
3. The learned Judicial Magistrate framed
charges against accused no. 1 for the alleged offences
punishable under Sections 420,423 and 465, IPC and
against the accused no. 2 for the offences under Sections
424 and 465 read with 109, IPC. Both the accused were
tried by the learned Judicial Magistrate at Valliyoor in
C.C. No: 62/1999, wherein accused no. 1 was convicted
under Section 465, IPC and was sentenced to undergo 2
years of simple imprisonment and to pay a fine of Rs.
5,000/- and accused no. 2 was sentenced to undergo
simple imprisonment for a period of 1 year and to pay a
fine of Rs. 2,000/- for the offences under Section 465
read with Section 109, IPC vide order dated 12.03.2003.
4. Aggrieved by the same, the Respondents—
Accused appealed before the Ld. Sessions Judge at
Tirunelveli by way of Criminal Appeal Nos. 72 & 78 of
2003, which ended up in dismissal by upholding the
order of conviction.
5. Thereafter, the respondents approached the
High Court of Madras, Bench at Madurai, wherein the
High Court acquitted the revision petitioners by setting
aside the concurrent findings of the courts below. The
High Court, basing on the decision in Guru Bipin Singh
v. Chongtham Manihar Singh & Another, 1996 (11)
SCC 622 observed that, the requirement of Section 464,
IPC is not satisfied in view of what has been stated under
3Explanation 2 to Section 464. Further from the perusal of
the Explanation, it is clear that to get attracted the
offence of forgery, “making of a false document is
essential. Hence perusing the given facts and
circumstances before it, the High Court concluded that,
as no case is made out under Section 464, IPC offence
under Section 420 of the IPC being a consequential one,
equally cannot be sustained.
6. Dissatisfied with the judgment of the High
Court setting aside the concurrent findings of conviction
recorded by the Courts below against the respondents,
the appellant (daughter of the deceased Doris Victor) filed
the present appeal before this Court.
7. The counsel for the appellant submits that, the
High Court failed to appreciate the material placed on
record and acquitted the respondent solely on the basis
that their signatures are not found on the forged
document. According to the appellant, this is an
erroneous interpretation of Section 464 of IPC which
mandates that anyone who makes a false document is
guilty of forgery. The respondents allegedly created the
4forged power of attorney with the sole intention of
grabbing the property belonging to Mrs. Doris Victor.
8. Per contra, the ld. counsel for the respondents
supported the judgment of the High Court and the
interpretation given by the High Court, how the offence
under Section 464, IPC is attracted. Further he submits
that the appellant has got back the property and the
mortgage deed has been cancelled by a competent civil
court.
9. Before we proceed to deal with the merits of
the case , it would be appropriate to have a look at the
Statements of certain prosecution witnesses for better
appreciation of the dispute involved in the case.
10. P.W. 1 (Narayanan Pillai), who is a document
writer, stated that on 08.12.1997, both the accused
accompanied a woman who identified herself as Mrs.
Doris Victor and approached P.W.1 to execute a Power of
Attorney in favour of accused no1. After the said
document was made by P.W. 1, two witnesses put their
signatures along with P.W. 1 himself. Later they
5registered the said document in the office of Sub
Registrar, Panangudi. One month thereafter, both the
accused came to the office of PW 1 for the execution of
mortgage deed in respect of the said property for an
amount of Rs. 50,000/-. PW 1 prepared the said
document which was then signed by accused no.1. The
said deed was registered in the office of the
Sub-Registrar, Valliyoor wherein both the accused were
present and accused no. 1 put his thumb impression on
the said document.
11. PW 2 (Irin Edward) was an acquaintance of
Doris Victor, who was informed by one Dhanaraj of
Panangudi that the accused no.1 has forged the Power of
Attorney in respect of a property belonging to Doris Victor
and attempted to alienate the same by executing and
registering a mortgage deed in favour of Rajapandi. After
inspecting the requisite official records, PW 2 informed
to Doris Victor who was in Chennai, then both PW 2 &
Doris Victor filed complaints against the accused
persons.
612. PW 3 (Ramasubramanian), who was assisting
PW 1 during the occurrence of the said incident, is an
acquaintance of the accused and was not aware of the
fact that the lady claiming to be Doris Victor was genuine
or not. The statement made by PW3 corroborates with
that of PW1.
13. PW 4 (Ms. Latha) was the Sub Registrar when
the accused persons came with the imposter for the
registration of the Power of Attorney. During the
registration, along with the imposter, accused no. 2
Rajapandi put his signature as a witness. The left hand
thumb impression of the imposter was maintained in the
office of Sub Registrar. The original Power of Attorney
was received by the accused no. 1 Jawaharaj who put his
signature on the same.
14. PW 6 (Mr. Nagaraja) was working as Sub
Registrar when accused no.1 executed the mortgage deed
in favour of accused no.2 and he put his signature in the
capacity of being the agent of Doris Victor and registered
the documents.
715. PW 7 (Mr. Ramu) is a Scientist in the Forensic
Department who has testified that there exist
discrepancies between the disputed signature of the
imposter and the original signature of Doris Victor.
16. PW 8 (Mr. Albonse Xavier), a finger print
recording inspector, has testified that the fingerprints
present on the alleged forged Power of Attorney do not
match with that of Doris Victor.
17. At this juncture, it is pertinent to have a look
at the definition of ‘forgery’ and the precedents on this
aspect.
463. Forgery—Whoever makes any false
documents [or false electronic record] or part of a
document [or electronic record,] with intent to cause
damage or injury, to the public or to 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 intent to commit fraud or
that fraud may be committed, commits forgery.
18. It would also be necessary to understand the
scope of Section 464, IPC in this context-
464. Making a false document.—A person is said
to make a false document or false electronic record
—
8First.—Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or
part of a document;
(b) makes or transmits any electronic record or
part of any electronic record;
(c) affixes any electronic signature on any
electronic record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that
such document or part of document, electronic
record or electronic signature was made, signed,
sealed, executed, transmitted or affixed by or by the
authority of a person by whom or by whose
authority he knows that it was not made, signed,
sealed, executed or affixed; or
Secondly.—Who without lawful authority,
dishonestly or fraudulently, by cancellation or
otherwise, alters a document or an electronic record
in any material part thereof, after it has been made,
executed or affixed with electronic signature either
by himself or by any other person, whether such
person be living or dead at the time of such
alteration; or
Thirdly.—Who dishonestly or fraudulently causes
any person to sign, seal, execute or alter a
document or an electronic record or to affix his
electronic signature on any electronic record
knowing that such person by reason of
unsoundness of mind or intoxication cannot, or that
by reason of deception practised upon him, he does
not know the contents of the document or electronic
record or the nature of the alteration.
9Explanation 1.—A man’s signature of his own name
may amount to forgery.
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.
Explanation 3.—For the purposes of this section,
the expression “affixing electronic signature” shall
have the meaning assigned to it in clause (d) of
sub-section (1) of section 2 of the Information
Technology Act, 2000.
19. A close scrutiny of the aforesaid provisions
makes it clear that, Section 463 defines the offence of
forgery, while Section 464 substantiates the same by
providing an answer as to when a false document could
be said to have been made for the purpose of committing
an offence of forgery under Section 463, IPC. Therefore,
we can safely deduce that Section 464 defines one of the
ingredients of forgery i.e., making of a false document.
Further, Section 465 provides punishment for the
commission of the offence of forgery. In order to sustain a
conviction under Section 465, first it has to be proved
that forgery was committed under Section 463, implying
that ingredients under Section 464 should also be
satisfied. Therefore unless and untill 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
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of
IPC. As Collin J., puts it precisely in Dickins v. Gill,
(1896) 2 QB 310, a case dealing with the possession and
making of fictitious stamp wherein he stated that “to
make”, in itself involves conscious act on the part of the
maker. Therefore, an offence of forgery cannot lie against
a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and
Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751
that-
“a person is said to have made a `false document', if
(i) he made or executed a document claiming to be
someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
11(iii) he obtained a document by practicing
deception, or from a person not in control of his
senses.”
22. In Md. Ibrahim (supra), this Court had the
occasion to examine forgery of a document purporting to
be a valuable security (Section 467, IPC) and using of
forged document as genuine (Section 471, IPC). While
considering the basic ingredients of both the offences,this
Court observed that to attract the offence of forgery as
defined under Section 463, IPC depends upon creation of
a document as defined under Section 464, IPC. It is
further observed that mere execution of a sale deed by
claiming that property being sold was executant's
property, did not amount to commission of offences
punishable under Sections 467 and 471, IPC even if title
of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed
that:
“There is a fundamental difference between a
person executing a sale deed claiming that the
property conveyed is his property, and a person
executing a sale deed by impersonating the owner
or falsely claiming to be authorised or empowered
by the owner, to execute the deed on owner's behalf.
When a person executes a document conveying a
property describing it as his, there are two
possibilities. The first is that he bona fide believes
that the property actually belongs to him. The
second is that he may be dishonestly or
fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under
first category of `false documents', it is not sufficient
that a document has been made or executed
dishonestly or fraudulently. There is a further
requirement that it should have been made with the
intention of causing it to be believed that such
document was made or executed by, or by the
authority of a person, by whom or by whose
authority he knows that it was not made or
executed.
When a document is executed by a person
claiming a property which is not his, he is not
claiming that he is someone else nor is he claiming
that he is authorised by someone else. Therefore,
execution of such document (purporting to convey
some property of which he is not the owner) is not
execution of a false document as defined under
Section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no
forgery, then neither Section 467 nor Section 471 of
the Code are attracted."
24. In Mir Nagvi Askari vs. Central Bureau of
Investigation, (2009) 15 SCC 643, this Court, after
analysing the facts of that case, came to observe as
follows:
“A person is said to make a false document or
record if he satisfies one of the three conditions as
noticed hereinbefore and provided for under the
said section. The first condition being that the
document has been falsified with the intention of
causing it to be believed that such document has
been made by a person, by whom the person
falsifying the document knows that it was not made.
Clearly the documents in question in the present
case, even if it be assumed to have been made
dishonestly or fraudulently, had not been made
with the intention of causing it to be believed that
they were made by or under the authority of
someone else.
The second criteria of the section deals with a
case where a person without lawful authority alters
a document after it has been made. There has been
no allegation of alteration of the voucher in question
after they have been made. Therefore, in our opinion
the second criteria of the said section is also not
applicable to the present case.
The third and final condition of Section 464
deals with a document, signed by a person who due
to his mental capacity does not know the contents
of the documents which were made i.e. because of
intoxication or unsoundness of mind, etc. Such is
also not the case before us. Indisputably therefore
the accused before us could not have been
convicted with the making of a false document.
25. Keeping in view the strict interpretation of
penal statute i.e., referring to rule of interpretation
wherein natural inferences are preferred, we observe that
a charge of forgery cannot be imposed on a person who is
not the maker of the same. As held in plethora of cases,
making of a document is different than causing it to be
made. As Explanation 2 to Section 464 further clarifies
that, for constituting an offence under Section 464 it is
imperative that a false document is made and the
accused person is the maker of the same, otherwise the
accused person is not liable for the offence of forgery.
26. The definition of “false document” is a part of
the definition of “forgery”. Both must be read together.
‘Forgery’ and ‘Fraud’ are essentially matters of evidence
which could be proved as a fact by direct evidence or by
inferences drawn from proved facts. In the case in hand,
there is no finding recorded by the trial Court that the
respondents have made any false document or part of the
document/record to execute mortgage deed under the
guise of that ‘false document’. Hence, neither respondent
no.1 nor respondent no.2 can be held as makers of the
forged documents. It is the imposter who can be said to
have made the false document by committing forgery. In
such an event the trial court as well as appellate court
misguided themselves by convicting the accused.
Therefore, the High Court has rightly acquitted the
accused based on the settled legal position and we find
no reason to interfere with the same.
1527. A reasonable doubt has already been
thoroughly explained in the case of Latesh @ Dadu
Baburao Karlekar Versus The State of Maharashtra,
(2018) 3 SCC 66 wherein ‘reasonable doubt’ has been
enunciated by this Court as “a mean between excessive
caution and excessive indifference to a doubt, further
it has been elaborated that reasonable doubt must be a
practical one and not an abstract theoretical hypothesis.”
In this case at hand, the imposter has not been found or
investigated into by the concerned officer. Nothing has
been spilled on the relationship between the imposter
and respondent no.1. Law is well settled with regard to
the fact that however strong the suspicion may be, it
cannot take the place of proof. Strong suspicion,
coincidence, grave doubt cannot take the place of proof.
Always a duty is cast upon the Courts to ensure that
suspicion does not take place of the legal proof. In this
case, the trial Court as well as the appellate Court
carried away by the fact that accused is the beneficiary or
the executant of the mortgage deed, where the
prosecution miserably failed to prove the first transaction
16i.e PoA as a fraudulent and forged transaction. The
standard of proof in a criminal trial is proof beyond
reasonable doubt because the right to personal liberty of
a citizen can never be taken away by the standard of
preponderance of probability.
28. This case on hand is a classic example of poor
prosecution and shabby investigation which resulted in
the acquittal of the accused. The Investigating Officer is
expected to be diligent while discharging his duties. He
has to be fair, transparent and his only endeavour
should be to find out the truth. The Investigating Officer
has not even taken bare minimum care to find out the
whereabouts of the imposter who executed the PoA. The
evidence on record clearly reveals that PoA was not
executed by the complainant and the beneficiary is the
accused, still the accused could not be convicted. The
latches in the lopsided investigation goes to the root of
the matter and fatal to the case of prosecution. If this is
the coordination between the prosecution and the
investigating agency, every criminal case tend to end up
in acquittal. In the process, the common man will lose
confidence on the criminal justice delivery system, which
is not a good symptom. It is the duty of the investigation,
prosecution as well as the Courts to ensure that full and
material facts and evidence are brought on record, so
that there is no scope for miscarriage of justice.
29. Although we acknowledge the appellant’s
plight who has suffered due to alleged acts of forgery, but
we are not able to appreciate the appellant’s contentions
as a penal statute cannot be expanded by using
implications. Section 464 of the IPC makes it clear that
only the one who makes a false document can be held
liable under the aforesaid provision. It must be borne in
mind that, where there exists no ambiguity, there lies no
scope for interpretation. The contentions of the appellant
are contrary to the provision and contrary to the settled
law. The prosecution could not succeed to prove the
offence of forgery by adducing cogent and reliable
evidence. Apart from that, it is not as though the
appellant is remediless. She has a common law remedy
of instituting a suit challenging the validity and binding
nature of the mortgage deed and it is brought to our
notice that already the competent Civil Court has
cancelled the mortgage deed and the appellant got back
the property.
30. In light of the above discussion, we find no
reason to interfere with the order passed by the High
Court, resultantly appeals stand dismissed being devoid
of merits.
………………………J.
(N. V. Ramana)
………………………J.
(S. Abdul Nazeer)
New Delhi,
May 11, 2018.
Print Page
conviction under Section 465, first it has to be proved
that forgery was committed under Section 463, implying
that ingredients under Section 464 should also be
satisfied. Therefore unless and untill 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
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of
IPC. As Collin J., puts it precisely in Dickins v. Gill,
(1896) 2 QB 310, a case dealing with the possession and
making of fictitious stamp wherein he stated that “to
make”, in itself involves conscious act on the part of the
maker. Therefore, an offence of forgery cannot lie against
a person who has not created it or signed it.
Keeping in view the strict interpretation of
penal statute i.e., referring to rule of interpretation
wherein natural inferences are preferred, we observe that
a charge of forgery cannot be imposed on a person who is
not the maker of the same. As held in plethora of cases,
making of a document is different than causing it to be
made. As Explanation 2 to Section 464 further clarifies
that, for constituting an offence under Section 464 it is
imperative that a false document is made and the
accused person is the maker of the same, otherwise the
accused person is not liable for the offence of forgery.
26. The definition of “false document” is a part of
the definition of “forgery”. Both must be read together.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 359-360 OF 2010
SHEILA SEBASTIAN V R. JAWAHARAJ & ANR.
Dated:May 11, 2018.
Citation:(2018)7 SCC 581
1 These criminal appeals are filed against the
impugned order dated 25.01.2008, passed by the High Court
of Judicature at Madras, Madurai Bench in Criminal Revision
Case Nos.523 & 546 of 2005, wherein the High Court has
allowed the criminal revisions and held that the conviction of
accused respondents is not sustainable under Section 465 of
the Indian Penal Code, 1860 [hereinafter ‘IPC’].
2. The case of the prosecution giving rise to these
appeals, in brief, is that the complainant Mrs. Doris
Victor (deceased mother of the appellant) was the owner
of a plot insurvey numbers 1777/1A, 1778/1, 1779/1
and 1779/2 in Valliyoor village. The complainant alleges
that, accused no. 1, (R. Jawaharaj), with the aid of an
imposter who by impersonating as Mrs. Doris Victor
created a Power of Attorney (hereinafter ‘PoA’) in his
name as if he was her agent. It was further alleged that,
using the aforesaid PoA the accused no. 1, attempted to
transfer the property of complainant by executing a
mortgage deed in favour of accused no. 2, (Rajapandi) for
a sum of Rs.50,000/-. After getting the information about
the aforesaid transaction, the owner of the property Mrs.
Doris Victor gave a complaint to the police which was
subsequently registered as FIR dated 14.03.1998. After
the completion of investigation, a final report was filed
against the aforesaid accused under Sections 420, 423
and 424, IPC. The complainant Mrs. Doris Victor died
after filing the complaint.
3. The learned Judicial Magistrate framed
charges against accused no. 1 for the alleged offences
punishable under Sections 420,423 and 465, IPC and
against the accused no. 2 for the offences under Sections
424 and 465 read with 109, IPC. Both the accused were
tried by the learned Judicial Magistrate at Valliyoor in
C.C. No: 62/1999, wherein accused no. 1 was convicted
under Section 465, IPC and was sentenced to undergo 2
years of simple imprisonment and to pay a fine of Rs.
5,000/- and accused no. 2 was sentenced to undergo
simple imprisonment for a period of 1 year and to pay a
fine of Rs. 2,000/- for the offences under Section 465
read with Section 109, IPC vide order dated 12.03.2003.
4. Aggrieved by the same, the Respondents—
Accused appealed before the Ld. Sessions Judge at
Tirunelveli by way of Criminal Appeal Nos. 72 & 78 of
2003, which ended up in dismissal by upholding the
order of conviction.
5. Thereafter, the respondents approached the
High Court of Madras, Bench at Madurai, wherein the
High Court acquitted the revision petitioners by setting
aside the concurrent findings of the courts below. The
High Court, basing on the decision in Guru Bipin Singh
v. Chongtham Manihar Singh & Another, 1996 (11)
SCC 622 observed that, the requirement of Section 464,
IPC is not satisfied in view of what has been stated under
3Explanation 2 to Section 464. Further from the perusal of
the Explanation, it is clear that to get attracted the
offence of forgery, “making of a false document is
essential. Hence perusing the given facts and
circumstances before it, the High Court concluded that,
as no case is made out under Section 464, IPC offence
under Section 420 of the IPC being a consequential one,
equally cannot be sustained.
6. Dissatisfied with the judgment of the High
Court setting aside the concurrent findings of conviction
recorded by the Courts below against the respondents,
the appellant (daughter of the deceased Doris Victor) filed
the present appeal before this Court.
7. The counsel for the appellant submits that, the
High Court failed to appreciate the material placed on
record and acquitted the respondent solely on the basis
that their signatures are not found on the forged
document. According to the appellant, this is an
erroneous interpretation of Section 464 of IPC which
mandates that anyone who makes a false document is
guilty of forgery. The respondents allegedly created the
4forged power of attorney with the sole intention of
grabbing the property belonging to Mrs. Doris Victor.
8. Per contra, the ld. counsel for the respondents
supported the judgment of the High Court and the
interpretation given by the High Court, how the offence
under Section 464, IPC is attracted. Further he submits
that the appellant has got back the property and the
mortgage deed has been cancelled by a competent civil
court.
9. Before we proceed to deal with the merits of
the case , it would be appropriate to have a look at the
Statements of certain prosecution witnesses for better
appreciation of the dispute involved in the case.
10. P.W. 1 (Narayanan Pillai), who is a document
writer, stated that on 08.12.1997, both the accused
accompanied a woman who identified herself as Mrs.
Doris Victor and approached P.W.1 to execute a Power of
Attorney in favour of accused no1. After the said
document was made by P.W. 1, two witnesses put their
signatures along with P.W. 1 himself. Later they
5registered the said document in the office of Sub
Registrar, Panangudi. One month thereafter, both the
accused came to the office of PW 1 for the execution of
mortgage deed in respect of the said property for an
amount of Rs. 50,000/-. PW 1 prepared the said
document which was then signed by accused no.1. The
said deed was registered in the office of the
Sub-Registrar, Valliyoor wherein both the accused were
present and accused no. 1 put his thumb impression on
the said document.
11. PW 2 (Irin Edward) was an acquaintance of
Doris Victor, who was informed by one Dhanaraj of
Panangudi that the accused no.1 has forged the Power of
Attorney in respect of a property belonging to Doris Victor
and attempted to alienate the same by executing and
registering a mortgage deed in favour of Rajapandi. After
inspecting the requisite official records, PW 2 informed
to Doris Victor who was in Chennai, then both PW 2 &
Doris Victor filed complaints against the accused
persons.
612. PW 3 (Ramasubramanian), who was assisting
PW 1 during the occurrence of the said incident, is an
acquaintance of the accused and was not aware of the
fact that the lady claiming to be Doris Victor was genuine
or not. The statement made by PW3 corroborates with
that of PW1.
13. PW 4 (Ms. Latha) was the Sub Registrar when
the accused persons came with the imposter for the
registration of the Power of Attorney. During the
registration, along with the imposter, accused no. 2
Rajapandi put his signature as a witness. The left hand
thumb impression of the imposter was maintained in the
office of Sub Registrar. The original Power of Attorney
was received by the accused no. 1 Jawaharaj who put his
signature on the same.
14. PW 6 (Mr. Nagaraja) was working as Sub
Registrar when accused no.1 executed the mortgage deed
in favour of accused no.2 and he put his signature in the
capacity of being the agent of Doris Victor and registered
the documents.
715. PW 7 (Mr. Ramu) is a Scientist in the Forensic
Department who has testified that there exist
discrepancies between the disputed signature of the
imposter and the original signature of Doris Victor.
16. PW 8 (Mr. Albonse Xavier), a finger print
recording inspector, has testified that the fingerprints
present on the alleged forged Power of Attorney do not
match with that of Doris Victor.
17. At this juncture, it is pertinent to have a look
at the definition of ‘forgery’ and the precedents on this
aspect.
463. Forgery—Whoever makes any false
documents [or false electronic record] or part of a
document [or electronic record,] with intent to cause
damage or injury, to the public or to 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 intent to commit fraud or
that fraud may be committed, commits forgery.
18. It would also be necessary to understand the
scope of Section 464, IPC in this context-
464. Making a false document.—A person is said
to make a false document or false electronic record
—
8First.—Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or
part of a document;
(b) makes or transmits any electronic record or
part of any electronic record;
(c) affixes any electronic signature on any
electronic record;
(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that
such document or part of document, electronic
record or electronic signature was made, signed,
sealed, executed, transmitted or affixed by or by the
authority of a person by whom or by whose
authority he knows that it was not made, signed,
sealed, executed or affixed; or
Secondly.—Who without lawful authority,
dishonestly or fraudulently, by cancellation or
otherwise, alters a document or an electronic record
in any material part thereof, after it has been made,
executed or affixed with electronic signature either
by himself or by any other person, whether such
person be living or dead at the time of such
alteration; or
Thirdly.—Who dishonestly or fraudulently causes
any person to sign, seal, execute or alter a
document or an electronic record or to affix his
electronic signature on any electronic record
knowing that such person by reason of
unsoundness of mind or intoxication cannot, or that
by reason of deception practised upon him, he does
not know the contents of the document or electronic
record or the nature of the alteration.
9Explanation 1.—A man’s signature of his own name
may amount to forgery.
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.
Explanation 3.—For the purposes of this section,
the expression “affixing electronic signature” shall
have the meaning assigned to it in clause (d) of
sub-section (1) of section 2 of the Information
Technology Act, 2000.
19. A close scrutiny of the aforesaid provisions
makes it clear that, Section 463 defines the offence of
forgery, while Section 464 substantiates the same by
providing an answer as to when a false document could
be said to have been made for the purpose of committing
an offence of forgery under Section 463, IPC. Therefore,
we can safely deduce that Section 464 defines one of the
ingredients of forgery i.e., making of a false document.
Further, Section 465 provides punishment for the
commission of the offence of forgery. In order to sustain a
conviction under Section 465, first it has to be proved
that forgery was committed under Section 463, implying
that ingredients under Section 464 should also be
satisfied. Therefore unless and untill 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
20. The key to unfold the present dispute lies in
understanding Explanation 2 as given in Section 464 of
IPC. As Collin J., puts it precisely in Dickins v. Gill,
(1896) 2 QB 310, a case dealing with the possession and
making of fictitious stamp wherein he stated that “to
make”, in itself involves conscious act on the part of the
maker. Therefore, an offence of forgery cannot lie against
a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and
Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751
that-
“a person is said to have made a `false document', if
(i) he made or executed a document claiming to be
someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
11(iii) he obtained a document by practicing
deception, or from a person not in control of his
senses.”
22. In Md. Ibrahim (supra), this Court had the
occasion to examine forgery of a document purporting to
be a valuable security (Section 467, IPC) and using of
forged document as genuine (Section 471, IPC). While
considering the basic ingredients of both the offences,this
Court observed that to attract the offence of forgery as
defined under Section 463, IPC depends upon creation of
a document as defined under Section 464, IPC. It is
further observed that mere execution of a sale deed by
claiming that property being sold was executant's
property, did not amount to commission of offences
punishable under Sections 467 and 471, IPC even if title
of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed
that:
“There is a fundamental difference between a
person executing a sale deed claiming that the
property conveyed is his property, and a person
executing a sale deed by impersonating the owner
or falsely claiming to be authorised or empowered
by the owner, to execute the deed on owner's behalf.
When a person executes a document conveying a
property describing it as his, there are two
possibilities. The first is that he bona fide believes
that the property actually belongs to him. The
second is that he may be dishonestly or
fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under
first category of `false documents', it is not sufficient
that a document has been made or executed
dishonestly or fraudulently. There is a further
requirement that it should have been made with the
intention of causing it to be believed that such
document was made or executed by, or by the
authority of a person, by whom or by whose
authority he knows that it was not made or
executed.
When a document is executed by a person
claiming a property which is not his, he is not
claiming that he is someone else nor is he claiming
that he is authorised by someone else. Therefore,
execution of such document (purporting to convey
some property of which he is not the owner) is not
execution of a false document as defined under
Section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no
forgery, then neither Section 467 nor Section 471 of
the Code are attracted."
24. In Mir Nagvi Askari vs. Central Bureau of
Investigation, (2009) 15 SCC 643, this Court, after
analysing the facts of that case, came to observe as
follows:
“A person is said to make a false document or
record if he satisfies one of the three conditions as
noticed hereinbefore and provided for under the
said section. The first condition being that the
document has been falsified with the intention of
causing it to be believed that such document has
been made by a person, by whom the person
falsifying the document knows that it was not made.
Clearly the documents in question in the present
case, even if it be assumed to have been made
dishonestly or fraudulently, had not been made
with the intention of causing it to be believed that
they were made by or under the authority of
someone else.
The second criteria of the section deals with a
case where a person without lawful authority alters
a document after it has been made. There has been
no allegation of alteration of the voucher in question
after they have been made. Therefore, in our opinion
the second criteria of the said section is also not
applicable to the present case.
The third and final condition of Section 464
deals with a document, signed by a person who due
to his mental capacity does not know the contents
of the documents which were made i.e. because of
intoxication or unsoundness of mind, etc. Such is
also not the case before us. Indisputably therefore
the accused before us could not have been
convicted with the making of a false document.
25. Keeping in view the strict interpretation of
penal statute i.e., referring to rule of interpretation
wherein natural inferences are preferred, we observe that
a charge of forgery cannot be imposed on a person who is
not the maker of the same. As held in plethora of cases,
making of a document is different than causing it to be
made. As Explanation 2 to Section 464 further clarifies
that, for constituting an offence under Section 464 it is
imperative that a false document is made and the
accused person is the maker of the same, otherwise the
accused person is not liable for the offence of forgery.
26. The definition of “false document” is a part of
the definition of “forgery”. Both must be read together.
‘Forgery’ and ‘Fraud’ are essentially matters of evidence
which could be proved as a fact by direct evidence or by
inferences drawn from proved facts. In the case in hand,
there is no finding recorded by the trial Court that the
respondents have made any false document or part of the
document/record to execute mortgage deed under the
guise of that ‘false document’. Hence, neither respondent
no.1 nor respondent no.2 can be held as makers of the
forged documents. It is the imposter who can be said to
have made the false document by committing forgery. In
such an event the trial court as well as appellate court
misguided themselves by convicting the accused.
Therefore, the High Court has rightly acquitted the
accused based on the settled legal position and we find
no reason to interfere with the same.
1527. A reasonable doubt has already been
thoroughly explained in the case of Latesh @ Dadu
Baburao Karlekar Versus The State of Maharashtra,
(2018) 3 SCC 66 wherein ‘reasonable doubt’ has been
enunciated by this Court as “a mean between excessive
caution and excessive indifference to a doubt, further
it has been elaborated that reasonable doubt must be a
practical one and not an abstract theoretical hypothesis.”
In this case at hand, the imposter has not been found or
investigated into by the concerned officer. Nothing has
been spilled on the relationship between the imposter
and respondent no.1. Law is well settled with regard to
the fact that however strong the suspicion may be, it
cannot take the place of proof. Strong suspicion,
coincidence, grave doubt cannot take the place of proof.
Always a duty is cast upon the Courts to ensure that
suspicion does not take place of the legal proof. In this
case, the trial Court as well as the appellate Court
carried away by the fact that accused is the beneficiary or
the executant of the mortgage deed, where the
prosecution miserably failed to prove the first transaction
16i.e PoA as a fraudulent and forged transaction. The
standard of proof in a criminal trial is proof beyond
reasonable doubt because the right to personal liberty of
a citizen can never be taken away by the standard of
preponderance of probability.
28. This case on hand is a classic example of poor
prosecution and shabby investigation which resulted in
the acquittal of the accused. The Investigating Officer is
expected to be diligent while discharging his duties. He
has to be fair, transparent and his only endeavour
should be to find out the truth. The Investigating Officer
has not even taken bare minimum care to find out the
whereabouts of the imposter who executed the PoA. The
evidence on record clearly reveals that PoA was not
executed by the complainant and the beneficiary is the
accused, still the accused could not be convicted. The
latches in the lopsided investigation goes to the root of
the matter and fatal to the case of prosecution. If this is
the coordination between the prosecution and the
investigating agency, every criminal case tend to end up
in acquittal. In the process, the common man will lose
confidence on the criminal justice delivery system, which
is not a good symptom. It is the duty of the investigation,
prosecution as well as the Courts to ensure that full and
material facts and evidence are brought on record, so
that there is no scope for miscarriage of justice.
29. Although we acknowledge the appellant’s
plight who has suffered due to alleged acts of forgery, but
we are not able to appreciate the appellant’s contentions
as a penal statute cannot be expanded by using
implications. Section 464 of the IPC makes it clear that
only the one who makes a false document can be held
liable under the aforesaid provision. It must be borne in
mind that, where there exists no ambiguity, there lies no
scope for interpretation. The contentions of the appellant
are contrary to the provision and contrary to the settled
law. The prosecution could not succeed to prove the
offence of forgery by adducing cogent and reliable
evidence. Apart from that, it is not as though the
appellant is remediless. She has a common law remedy
of instituting a suit challenging the validity and binding
nature of the mortgage deed and it is brought to our
notice that already the competent Civil Court has
cancelled the mortgage deed and the appellant got back
the property.
30. In light of the above discussion, we find no
reason to interfere with the order passed by the High
Court, resultantly appeals stand dismissed being devoid
of merits.
………………………J.
(N. V. Ramana)
………………………J.
(S. Abdul Nazeer)
New Delhi,
May 11, 2018.
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