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TMI Blog2018 (5) TMI 2148X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation of penal statute i.e., referring to Rule of interpretation wherein natural inferences are preferred, it is observed 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. 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 prosecution could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e framed charges against Accused No. 1 for the alleged offences punishable Under Sections 420, 423 and 465, Indian Penal Code and against the Accused No. 2 for the offences Under Sections 424 and 465 read with 109, Indian Penal Code. 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, Indian Penal Code 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, Indian Penal Code 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rar, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuine (Section 471, Indian Penal Code). While considering the basic ingredients of both the offences, this Court observed that to attract the offence of forgery as defined Under Section 463, Indian Penal Code depends upon creation of a document as defined Under Section 464, Indian Penal Code. 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, Indian Penal Code 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 ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Indian Penal Code 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 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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