Sheila Sebastian vs R.Jawaharaj

SHEILA SEBASTIAN …APPELLANT(S) VERSUS R. JAWAHARAJ & ANR. ETC. …RESPONDENT(S)

JUDGMENT

N.V. RAMANA, J.

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 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

2 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 3 Explanation 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 4 forged 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

5 registered 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.

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12. 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.

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15. 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 —

8 First.—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.

9 Explanation 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

10 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

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(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

12 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 13 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 14 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.

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27. 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

16 i.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

17 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

18 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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