IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 359-360 OF 2010   

SHEILA SEBASTIAN …APPELLANT(S) VERSUS

R. JAWAHARAJ & ANR. ETC.        …RESPONDENT(S)

J U D G M E N T   

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

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Reportable

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

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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

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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

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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

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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 —

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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.

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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

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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

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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

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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

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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

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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

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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

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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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