Can a person who caused a forged document to be made charged with forgery?

Supreme Court upholds decision of the High Court acquitting the accused person of forgery and cheating.The decision of the Supreme Court in Sheila Sebastian Vs. R. Jawaharaj decided on 11/05/2018. Decision by bench of J. N. V. Ramana & J. S. Abdul Nazeer. The decision was authored by Justice N. V. Ramana.

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.

464. Making a false document. 
A person is said to make a false document or false electronic record—
First —Who dishonestly or fradulently—(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 342 [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 342 [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.]

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.

465. Punishment for forgery.—Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Forgery is one of the most confused provisions in the Indian Penal Code. There have been several cases where the forgery has indeed happened but the prosecution is unable to prove it in accordance with law, mainly because of the misinterpretation of the decision. We shall be seeing one such case in this post.

Brief Facts
The complainant, Mrs. Doris Victor, is the owner of a property. Accused No. 1, R. Jawahar, had with the aid of another person (hereinafter referred to as imposter) created a Power of Attorney (POA) in favour of Accused No. 1. Using this Power of Attorney, the first person had attempted to transfer the property by executing a mortgage in favour of Accused No. 2, Rajapandi. Coming to know of this, the complainant gave a police complaint and a case was registered under Section 420, 423 and 424 IPC against A1 and A2.

Imposter not added as an accused
It is important to note here that the imposter, the person who had not been added as an accused. Even the identity of the imposter was not known.

Proceedings at Magistrate and Sessions Court
The learned Judicial Magistrate framed charges against accused no.1 for 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 resulting in convicting accused no. 1 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. Aggrieved by the same, the Respondents— Accused appealed before the Ld. Sessions Judge which ended up in dismissal by upholding the order of conviction.

Acquittal by High Court
The High Court acquitted A1 based on the decision in Guru Bipin Singh v. Chongtham Manihar Singh & Another, 1996 (11) SCC 622. The HC held that forgery is not made out and that the cheating being consequential is also not made out.

Supreme Court affirms view of the High Court
Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, it was observed by the Hon’ble Supreme Court that a charge of forgery cannot be imposed on a person who is not the maker of the false document. 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.

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 accused no.1 nor accused 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, it was held that the High Court has rightly acquitted the accused based on the settled legal position.


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