Penal Code, 1860 – ss.420, 464, 465 – Allegation of forgery – Prosecution case was that accused no.1, with the aid of imposter impersonating as the owner of the property belonging to the complainant, created a Power of Attorney (PoA) in his name as if he was her agent and using the said PoA accused-respondent no.1 attempted to transfer the property by executing a mortgage deed in favour of accused-respondent no.2 – Conviction by trial court, upheld by Sessions court – High Court set aside concurrent finding of courts below and ordered acquittal – On appeal, held: A charge of forgery cannot be imposed on a person who is not the maker of the forged document – Explanation 2 to s.464 states that, for constituting an offence under s.464 it is imperative that the accused person is the maker of the false document – In the instant case, there is no finding recorded by trial Court that the accusedrespondents made any false document – It is the imposter who can be said to have made the false document by committing forgery – The prosecution could not prove the offence of forgery by adducing reliable evidence – In such an event trial court as well as appellate court misguided themselves by convicting the accused – High Court rightly acquitted the accused.
Investigation – Botched up investigation – Miscarriage of justice – This case on hand is a classic example of poor prosecution and shabby investigation which resulted in 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 – However, he has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA – The evidence on record clearly revealed 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 went to the root of the matter and fatal to the case of prosecution.
Dismissing the appeals, the Court
HELD: 1. 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. 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 until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete. [Para 19][447-A-C]
2. A charge of forgery cannot be imposed on a person who is not the maker of the same. 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. 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. [Paras 25, 26][449-E-H; 450A]
3. 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. Strong suspicion, coincidence, grave doubt cannot take the place of proof. 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 i.e. PoA as a fraudulent and forged transaction. The evidence clearly revealed 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. [Paras 27, 28][450-C-E, G; 451-A]
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 Karlekar v. The State of Maharashtra (2018) 3 SCC 66 – relied on.
Guru Bipin Singh v. Chongtham Manihar Singh & Another (1996) 11 SCC 622 : [1996] 7 Suppl. SCR
611 – referred to.
Dickins v. Gill (1896) 2 QB 310 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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