SHEILA SEBASTIAN versus R. JAWAHARAJ & ANR. ETC. on 11 May 2018

[2018] 4 S.C.R. 439

SHEILA SEBASTIAN

v.

R. JAWAHARAJ & ANR. ETC.

(Criminal Appeal Nos. 359-360 of 2010)

MAY 11, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860 – ss.420, 464, 465 – Allegation of forgery– Prosecution case was that accused no.1, with the aid of imposterimpersonating as the owner of the property belonging to thecomplainant, created a Power of Attorney (PoA) in his name as ifhe was her agent and using the said PoA accused-respondent no.1attempted to transfer the property by executing a mortgage deed infavour of accused-respondent no.2 – Conviction by trial court,upheld by Sessions court – High Court set aside concurrent findingof courts below and ordered acquittal – On appeal, held: A chargeof forgery cannot be imposed on a person who is not the maker ofthe forged document – Explanation 2 to s.464 states that, forconstituting an offence under s.464 it is imperative that theaccused person is the maker of the false document – In the instantcase, there is no finding recorded by trial Court that the accused-respondents made any false document – It is the imposter who canbe said to have made the false document by committing forgery –The prosecution could not prove the offence of forgery byadducing reliable evidence – In such an event trial court as well asappellate court misguided themselves by convicting the accused –High Court rightly acquitted the accused.

Investigation – Botched up investigation – Miscarriage ofjustice – This case on hand is a classic example of poorprosecution and shabby investigation which resulted in acquittalof the accused – The Investigating Officer is expected to be diligentwhile discharging his duties – He has to be fair, transparent and hisonly endeavour should be to find out the truth – However, he hasnot even taken bare minimum care to find out the whereabouts ofthe imposter who executed the PoA – The evidence on record clearlyrevealed that PoA was not executed by the complainant and thebeneficiary is the accused, still the accused could not be convicted

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A– The latches in the lopsided investigation went to the root of thematter and fatal to the case of prosecution.

Dismissing the appeals, the Court

HELD: 1. Section 463 defines the offence of forgery, whileSection 464 substantiates the same by providing an answer as toBwhen a false document could be said to have been made for thepurpose of committing an offence of forgery under Section 463,IPC. Section 465 provides punishment for the commission of theoffence of forgery. In order to sustain a conviction underSection 465, first it has to be proved that forgery was committedCunder Section 463, implying that ingredients under Section 464should also be satisfied. Therefore unless and until ingredientsunder Section 463 are satisfied a person cannot be convictedunder Section 465 by solely relying on the ingredients of Section464, as the offence of forgery would remain incomplete.[Para 19][447-A-C]

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2. A charge of forgery cannot be imposed on a person whois not the maker of the same. Making of a document is differentthan causing it to be made. As Explanation 2 to Section 464 furtherclarifies that, for constituting an offence under Section 464 it isimperative that a false document is made and the accusedEperson is the maker of the same, otherwise the accused personis not liable for the offence of forgery. The definition of “falsedocument” is a part of the definition of “forgery”. Both must beread together. ‘Forgery’ and ‘Fraud’ are essentially matters ofevidence which could be proved as a fact by direct evidence orby inferences drawn from proved facts. In the case in hand, thereFis no finding recorded by the trial Court that the respondentshave made any false document or part of the document/record toexecute mortgage deed under the guise of that ‘false document’.Hence, neither respondent no.1 nor respondent no.2 can be heldas makers of the forged documents. [Paras 25, 26][449-E-H; 450-GA]

3. The imposter has not been found or investigated into bythe concerned officer. Nothing has been spilled on the relationshipbetween the imposter and respondent no.1. Strong suspicion,coincidence, grave doubt cannot take the place of proof. A duty H

is cast upon the courts to ensure that suspicion does not takeplace of the legal proof. In this case, the trial court as well as theappellate court carried away by the fact that accused is thebeneficiary or the executant of the mortgage deed, where theprosecution miserably failed to prove the first transaction i.e.PoA as a fraudulent and forged transaction. The evidence clearlyrevealed that PoA was not executed by the complainant and thebeneficiary is the accused, still the accused could not be convicted.The latches in the lopsided investigation goes to the root of thematter and fatal to the case of prosecution. If this is thecoordination between the prosecution and the investigatingagency, every criminal case tend to end up in acquittal. In theprocess, the common man will lose confidence on the criminaljustice delivery system, which is not a good symptom. It is theduty of the investigation, prosecution as well as the Courts toensure that full and material facts and evidence are brought onrecord, so that there is no scope for miscarriage of justice.[Paras 27, 28][450-C-E, G; 451-A]

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Md. Ibrahim and Ors. v. State of Bihar and Anr. (2009)8 SCC 751 : [2009] 9 SCR 845 ; Mir Nagvi Askari v.Central Bureau of Investigation (2009) 15 SCC 643 :[2009] 13 SCR 124 ; Latesh @ Dadu Baburao Karlekarv. The State of Maharashtra (2018) 3 SCC 66 – reliedon.

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Guru Bipin Singh v. Chongtham Manihar Singh &Another (1996) 11 SCC 622 : [1996] 7 Suppl. SCR611 – referred to.

Dickins v. Gill (1896) 2 QB 310 – referred to.

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 359-360 of 2010.

From the Judgment and Order dated 25.01.2008 of the MaduraiBench of the High Court at Madras in Crl. R. C. No. 523 of 2005 & Crl.R. C. No. 546 of 2005.

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R. Anand Padmanaban, Romil Pathak, Ananya Mukherjee, AkshayR.(for Pramod Dayal), Advs for the Appellant.

Sabarish Subramanian, Prabhu Rama Subramanian, Y. WilliamVinoth Kumar, V. G. Pragasam (for M/s. Legion of Lawyers), Advs forthe Respondents.

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The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. These criminal appeals are filed againstthe impugned order dated 25.01.2008, passed by the High Court ofJudicature at Madras, Madurai Bench in Criminal Revision Case Nos.523D& 546 of 2005, wherein the High Court has allowed the criminal revisionsand held that the conviction of accused respondents is not sustainableunder Section 465 of the Indian Penal Code, 1860 [hereinafter ‘IPC’].

2. The case of the prosecution giving rise to these appeals, inbrief, is that the complainant Mrs. Doris Victor (deceased mother of theappellant) was the owner of a plot in survey numbersE1777/1A,1778/1,1779/1 and 1779/2 in Valliyoor village. The complainantalleges that, accused no. 1, (R. Jawaharaj), with the aid of an imposterwho by impersonating as Mrs. Doris Victor created a Power of Attorney(hereinafter‘PoA’) in his name as if he was her agent. It was furtheralleged that, using the aforesaid PoA the accused no. 1, attempted toFtransfer the property of complainant by executing a mortgage deed infavour of accused no. 2, (Rajapandi) for a sum of Rs.50,000/-. Aftergetting the information about the aforesaid transaction, the owner of theproperty Mrs. Doris Victor gave a complaint to the police which wassubsequently registered as FIR dated 14.03.1998. After the completionof investigation, a final report was filed against the aforesaid accusedGunder Sections 420, 423 and 424,IPC. The complainant Mrs. Doris Victordied after filing the complaint.

3. The learned Judicial Magistrate framed charges against accusedno. 1 for the alleged offences punishable under Sections 420,423 and H

465,IPC and against the accused no. 2 for the offences under Sections424 and 465 read with 109,IPC. Both the accused were tried by thelearned Judicial Magistrate at Valliyoor in C.C. No: 62/1999, whereinaccused no. 1 was convicted under Section 465, IPC and was sentencedto 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 aperiod of 1 year and to pay a fine of Rs. 2,000/- for the offences underSection 465 read with Section 109, IPC vide order dated 12.03.2003.

4. Aggrieved by the same, the Respondents—Accused appealedbefore the Ld. Sessions Judge at Tirunelveli by way of Criminal AppealNos. 72 & 78 of 2003, which ended up in dismissal by upholding theorder of conviction.

5. Thereafter, the respondents approached the High Court ofMadras, Bench at Madurai, wherein the High Court acquitted the revisionpetitioners 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 observedthat, the requirement of Section 464, IPC is not satisfied in view of whathas been stated under Explanation 2 to Section 464. Further from theperusal of the Explanation, it is clear that to get attracted the offence offorgery, “making of a false document is essential. Hence perusing thegiven facts and circumstances before it, the High Court concluded that,as no case is made out under Section 464, IPC offence under Section420 of the IPC being a consequential one, equally cannot be sustained.

6. Dissatisfied with the judgment of the High Court setting asidethe concurrent findings of conviction recorded by the Courts below againstthe 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 failedto appreciate the material placed on record and acquitted the respondentsolely on the basis that their signatures are not found on the forgeddocument. According to the appellant,this is an erroneous interpretationof Section 464 of IPC which mandates that anyone who makes a falsedocument is guilty of forgery. The respondents allegedly created theforged power of attorney with the sole intention of grabbing the propertybelonging to Mrs. Doris Victor.

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8. Per contra, the ld. counsel for the respondents supported thejudgment of the High Court and the interpretation given by the HighCourt,how the offence under Section 464, IPC is attracted. Further hesubmits that the appellant has got back the property and the mortgagedeed has been cancelled by a competent civil court.

9. Before we proceed to deal with the merits of the case , itwould be appropriate to have a look at the Statements of certainprosecution witnesses for better appreciation of the dispute involved inthe case.

10. P.W. 1 (Narayanan Pillai), who is a document writer, statedCthat on 08.12.1997, both the accused accompanied a woman whoidentified herself as Mrs. Doris Victor and approached P.W.1 to executea Power of Attorney in favour of accused no1. After the said documentwas made by P.W. 1, two witnesses put their signatures along with P.W.1 himself. Later they registered the said document in the office of SubDRegistrar,Panangudi. One month thereafter, both the accused came tothe office of PW 1 for the execution of mortgage deed in respect of thesaid property for an amount of Rs. 50,000/-. PW 1 prepared the saiddocument which was then signed by accused no.1. The said deed wasregistered in the office of the Sub-Registrar, Valliyoor wherein both theaccused were present and accused no. 1 put his thumb impression onEthe said document.

11. PW 2(Irin Edward) was an acquaintance of Doris Victor, whowas informed by one Dhanaraj of Panangudi that the accused no.1 hasforged the Power of Attorney in respect of a property belonging to DorisVictor and attempted to alienate the same by executing and registering aFmortgage deed in favour of Rajapandi. After inspecting the requisiteofficial records, PW 2 informed to Doris Victor who was in Chennai,then both PW 2 & Doris Victor filed complaints against the accusedpersons.

G12. PW 3 (Ramasubramanian),who was assisting PW 1 duringthe occurrence of the said incident, is an acquaintance of the accusedand was not aware of the fact that the lady claiming to be Doris Victorwas genuine or not. The statement made by PW3 corroborates withthat of PW1.

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13. PW 4 (Ms. Latha) was the Sub Registrar when the accusedpersons came with the imposter for the registration of the Power ofAttorney. During the registration, along with the imposter, accused no. 2Rajapandi put his signature as a witness. The left hand thumb impressionof the imposter was maintained in the office of Sub Registrar. The originalPower of Attorney was received by the accused no. 1 Jawaharaj whoput his signature on the same.

14. PW 6 (Mr. Nagaraja) was working as Sub Registrar whenaccused no.1 executed the mortgage deed in favour of accused no.2and he put his signature in the capacity of being the agent of DorisVictor and registered the documents.

15. PW 7 (Mr. Ramu) is a Scientist in the Forensic Departmentwho has testified that there exist discrepancies between the disputedsignature 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 ofAttorney do not match with that of Doris Victor.

17. At this juncture, it is pertinent to have a look at the definitionof ‘forgery’ and the precedents on this aspect.

463. Forgery—Whoever makes any false documents [or falseelectronic 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 withproperty, or to enter into any express or implied contract, or withintent to commit fraud or that fraud may be committed, commitsforgery.

18. It would also be necessary to understand the scope of Section464, IPC in this context-

464. Making a false document.—A person is said to make afalse document or false electronic record—

First.—Who dishonestly or fraudulently—

(a) makes, signs, seals or executes a document or part of a document; A

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A(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, B

with the intention of causing it to be believed that such documentor part of document, electronic record or electronic signature wasmade, signed, sealed, executed, transmitted or affixed by or bythe authority of a person by whom or by whose authority he knowsthat it was not made, signed, sealed, executed or affixed; or C

Secondly.—Who without lawful authority, dishonestly orfraudulently, by cancellation or otherwise, alters a document oran electronic record in any material part thereof, after it has beenmade, executed or affixed with electronic signature either byhimself or by any other person, whether such person be living ordead at the time of such alteration; or D

Thirdly.—Who dishonestly or fraudulently causes any person tosign, seal, execute or alter a document or an electronic record orto affix his electronic signature on any electronic record knowingthat such person by reason of unsoundness of mind or intoxicationcannot, or that by reason of deception practised upon him, hedoes not know the contents of the document or electronic recordor the nature of the alteration.

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Explanation 1.—A man’s signature of his own name may amountto forgery.

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Explanation 2.—The making of a false document in the name ofa fictitious person, intending it to be believed that the documentwas made by a real person, or in the name of a deceased person,intending it to be believed that the document was made by theperson in his lifetime, may amount to forgery.

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Explanation 3.—For the purposes of this section, the expression“affixing electronic signature” shall have the meaning assigned toit in clause (d) of sub-section (1) of section 2 of the InformationTechnology Act, 2000.

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19. A close scrutiny of the aforesaid provisions makes it clearthat, Section 463 defines the offence of forgery, while Section 464substantiates the same by providing an answer as to when a falsedocument could be said to have been made for the purpose of committingan offence of forgery under Section 463, IPC. Therefore, we can safelydeduce that Section 464 defines one of the ingredients of forgery i.e.,making of a false document. Further, Section 465 provides punishmentfor the commission of the offence of forgery. In order to sustain aconviction under Section 465, first it has to be proved that forgery wascommitted under Section 463, implying that ingredients under Section464 should also be satisfied. Therefore unless and until ingredients underSection 463 are satisfied a person cannot be convicted under Section465 by solely relying on the ingredients of Section 464, as the offence offorgery would remain incomplete

20. The key to unfold the present dispute lies in understandingExplanation 2 as given in Section 464 of IPC. As Collin J., puts it preciselyin Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possessionand making of fictitious stamp wherein he stated that “to make”, in itselfinvolves conscious act on the part of the maker. Therefore, an offenceof 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 ofBihar 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 someoneelse or authorised by someone else; or

(ii) he altered or tampered a document; or

(iii) he obtained a document by practicing deception, or froma person not in control of his senses.”

22. In Md. Ibrahim (supra), this Court had the occasion toexamine forgery of a document purporting to be a valuable security(Section 467, IPC) and using of forged document as genuine (Section471, IPC). While considering the basic ingredients of both the offences,thisCourt observed that to attract the offence of forgery as defined underSection 463, IPC depends upon creation of a document as defined underSection 464, IPC. It is further observed that mere execution of a sale A

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Adeed by claiming that property being sold was executant’s property, didnot amount to commission of offences punishable under Sections 467and 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 executingBa sale deed claiming that the property conveyed is his property,and a person executing a sale deed by impersonating the owneror falsely claiming to be authorised or empowered by the owner,to execute the deed on owner’s behalf. When a person executesa document conveying a property describing it as his, there areCtwo possibilities. The first is that he bona fide believes that theproperty actually belongs to him. The second is that he may bedishonestly or fraudulently claiming it to be his even though heknows that it is not his property. But to fall under first category of`false documents’, it is not sufficient that a document has beenmade or executed dishonestly or fraudulently. There is a furtherDrequirement that it should have been made with the intention ofcausing it to be believed that such document was made or executedby, or by the authority of a person, by whom or by whose authorityhe knows that it was not made or executed.

When a document is executed by a person claiming a propertywhich is not his, he is not claiming that he is someone else nor ishe claiming that he is authorised by someone else. Therefore,execution of such document (purporting to convey some propertyof which he is not the owner) is not execution of a false documentas defined under Section 464 of the Code. If what is executed isnot a false document, there is no forgery. If there is no forgery,then neither Section 467 nor Section 471 of the Code areattracted.”

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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:

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“A person is said to make a false document or record if he satisfiesone of the three conditions as noticed hereinbefore and providedfor under the said section. The first condition being that thedocument has been falsified with the intention of causing it to be believed that such document has been made by a person, by whomthe person falsifying the document knows that it was not made.Clearly the documents in question in the present case, even if itbe assumed to have been made dishonestly or fraudulently, hadnot been made with the intention of causing it to be believed thatthey were made by or under the authority of someone else.

The second criteria of the section deals with a case where aperson without lawful authority alters a document after it has beenmade. There has been no allegation of alteration of the voucher inquestion after they have been made. Therefore, in our opinion thesecond criteria of the said section is also not applicable to thepresent case.

The third and final condition of Section 464 deals with adocument, signed by a person who due to his mental capacitydoes not know the contents of the documents which were madei.e. because of intoxication or unsoundness of mind, etc. Such isalso not the case before us. Indisputably therefore the accusedbefore us could not have been convicted with the making of afalse 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 personwho is not the maker of the same. As held in plethora of cases, makingof a document is different than causing it to be made. As Explanation 2to Section 464 further clarifies that, for constituting an offence underSection 464 it is imperative that a false document is made and the accusedperson is the maker of the same, otherwise the accused person is notliable 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’ areessentially matters of evidence which could be proved as a fact by directevidence or by inferences drawn from proved facts. In the case in hand,there is no finding recorded by the trial Court that the respondents havemade any false document or part of the document/record to executemortgage deed under the guise of that ‘false document’. Hence, neitherrespondent no.1 nor respondent no.2 can be held as makers of the forged AB

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Adocuments. It is the imposter who can be said to have made the falsedocument by committing forgery. In such an event the trial court as wellas appellate court misguided themselves by convicting the accused.Therefore, the High Court has rightly acquitted the accused based onthe settled legal position and we find no reason to interfere with thesame.B

27. A reasonable doubt has already been thoroughly explained inthe case of Latesh @ Dadu Baburao Karlekar Versus The State ofMaharashtra, (2018) 3 SCC 66 wherein ‘reasonable doubt’ has beenenunciated by this Court as “a mean between excessive caution andexcessive indifference to a doubt, further it has been elaboratedCthat reasonable doubt must be a practical one and not an abstracttheoretical hypothesis.” In this case at hand, the imposter has not beenfound or investigated into by the concerned officer. Nothing has beenspilled on the relationship between the imposter and respondent no.1.Law is well settled with regard to the fact that however strong theDsuspicion may be, it cannot take the place of proof. Strong suspicion,coincidence, grave doubt cannot take the place of proof.Always a dutyis cast upon the Courts to ensure that suspicion does not take place ofthe legal proof.In this case, the trial Court as well as the appellate Courtcarried away by the fact that accused is the beneficiary or the executantof the mortgage deed, where the prosecution miserably failed to proveEthe first transaction i.e PoA as a fraudulent and forged transaction. Thestandard of proof in a criminal trial is proof beyond reasonable doubtbecause the right to personal liberty of a citizen can never be takenaway by the standard of preponderance of probability.

28. This case on hand is a classic example of poor prosecutionFand shabby investigation which resulted inthe acquittal of the accused.The Investigating Officer is expected to be diligent while discharging hisduties. He has to be fair, transparent and his only endeavour should be tofind out the truth. The Investigating Officer has not even taken bareminimum care to find out the whereabouts of the imposter who executedGthe PoA. The evidence on record clearly reveals that PoA was notexecuted by the complainant and the beneficiary is the accused, still theaccused could not be convicted. The latches in the lopsided investigationgoes to the root of the matter and fatal to the case of prosecution. If thisis the coordination between the prosecution and the investigatingagency,every criminal case tend to end up in acquittal.In the process,H

the common man will lose confidence on the criminal justice deliverysystem, 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 factsand evidence are brought on record, so that there is no scope formiscarriage of justice.

29. Although we acknowledge the appellant’s plight who hassuffered due to alleged acts of forgery, but we are not able to appreciatethe appellant’scontentions as a penal statute cannot be expanded byusing implications. Section 464 of the IPC makes it clear that only theone who makes a false document can be held liable under the aforesaidprovision. It must be borne in mind that, where there exists no ambiguity,there lies no scope for interpretation. The contentions of the appellantare contrary to the provision and contrary to the settled law.Theprosecution could not succeed to prove the offence of forgery by adducingcogent and reliable evidence.Apart from that, it is not as though theappellant is remediless. She has a common law remedy of instituting asuit challenging the validity and binding nature of the mortgage deed andit is brought to our notice that already the competent Civil Court hascancelled the mortgage deed and the appellant got back the property.

30. In light of the above discussion, we find no reason to interferewith the order passed by the High Court, resultantly appeals standdismissed being devoid of merits.

Devika Gujral

Appeals dismissed.

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