A.R. Somnath Iyer, C.J.
1. In the Branch post office at Toppada Bagur in the District of Bangalore, the accused who is the appellant before me was the branch post master. He was convicted by the Sessions Judge of an offence of criminal breach of trust punishable under Section 409 of the Penal Code and of an offence of forgery punishable under Section 467 and sentenced him. to two years' rigorous imprisonment in respect of each of the two charges.
2. According to the prosecution case P. W. 8 Hussain Khan who is the brother-in-law of P. W. 7 Hayathbi remitted a sum of Rs. 50/- from Bombay to P. W. 7 by money order on May 6, 1965. P. W. 7 Hayatbi was a resident of Govindpur which was within the area of the branch post office at Toppada Bagur, and so, the money order was received for remittance in that post office.
3. P. W. 1 Mariyappa, it is not disputed went in search of P. W. 7 to pay the amount to her, but since she was not in Govindpur he brought back the money to the Post office and handed it over to the accused. But on May 13, 1965, according to the prosecution evidence, the accused told P. W. 1 that P. W. 7 had meanwhile visited the post office and had collected the amount, and so, asked P. W. 1 to affix his signature to the money order coupon to evidthe payment, and he did so. P. W. 2 Siddoji Rao, the mail carrier, and P. W. 3 who is a neighbour of the accused also gave evidence that they attested the finger impressions on the money order receipt which purported to be that of P. W. 7.
4. The prosecution evidence was to the effect that those two finger impressions whichEpurport to be those of P.W. 7 had been forged y the accused, and that he had misappropriated that sum of money, and that P. Ws. 1, 2 and 3 affixed their signatures and attestations respectively on the money order coupon in the belief that the accused had stated the truth when he told them that P. W. 7 had affixed her finger impressions on the money order receipt.
5. The prosecution also produced evidence that P. W. 7 wrote to P. W. 8 herbrother-in-law, complaining against the non-remittance of the amount and that thereuponP. W. 8 made a complaint to the post officein Bombay which in its turn made a reference to the Superintendent of Post Officesin Tumkur who deputed P. W. 9 K. R.Easwaran, the Inspector of Post Offices tomake an enquiry. P. W. 9 made the/com-plaint Exhibit P-11 to the Police which commenced the investigation which culminatedin the committal of the accused to the Courtof Session on charges of criminal breach oftrust and forgery. The first charge of criminal breach of trust stated that the accused had misappropriated a sum of Rs. 50/-which formed the subject-matter of theremittance by P. W. 8 from Bombay. Thesecond charge was that the money ordervoucher bearing No. 2563 which was a valuable security had been forged by the accused, and that be had in consequence committed an offence punishable under Section 467of the Penal Code.
6. The second charge did not however state which part of the money order voucher, as it was called bearing No. 2563 had been forged by the accused. But the endeavour by the prosecution was to prove that the two finger impressions appearing on that money order form, which is described in the charge as a voucher, had been forged by the accused who was able to persuade P. Ws. 1, 2 and 3 to affix their signatures and attestations thereto.
7. The evidence given by P. Ws. 1, 2 and 3 to the effect that the accused had stated to them that on the money order formthe complainant had affixed her finger impressions after she was paid the amount of the remittance only establishes that P. Ws. 1, 2 and 3,were informed by the accused that the money had been received by P. W. 7, But what happened according to the prosecution case was that the sum of Rs. 50/- remitted by P. W. 8 was not paid by the accused to P. W. 7 but had been misappropriated.
8. The offence of misappropriation would of course be established if it demonstrated by the prosecution that the finger impressions on the money order form were not that of P. W. 7, but that they had been forged. If, that, is established by the prosecution the offence of criminal breach of trust would stand established beyond reasonable doubt. But one surprising feature in the evidence given by P. W. 7 who was the payee of the remittance is that it was not elicited from her that she had not received the amount from the accused. All that was elicited from her was that she told the Inspector of Post Offices during the investigation that she had not not received the amount. She did not state before the Sessions Judge when she was examined that she had not received the amount from the accused. Although she did state in her examination in chief that the finger impressions on the money order form which are to be found at Exhibits P-1 and P-2 were not hers, she did not proceed to state that the accused had not paid her the sum oi Rs. 50/- or that she had not received the amount either from the accused or from any one else.
9. Now the money order form purports to contain the finger impressions of P. W. 7 in two places. One of them is marked Exhibit P-1 and the other is marked Exhibit P-2. Exhibit P-1 is the finger impression contained in that part of the money order form which is retained in the post office. Exhibit P-2 is contained in the other part of the money order form which is separated from the form and sent to the remitter.
10. The prosecution sought a comparison of the finger impression Exhibit P-1 with the admitted finger impressions of the accused, and the opinion of the finger impression expert was that the finger impression Exhibit P-1 was similar to the admitted finger impressions of the accused. On the basis of this opinion of the finger impression expert and on the basis of the evidence given by P. Ws. 1 to 3 and P. W. 7 the Sessions Judge recorded his finding that both the 'offences with which the- accused was charged had been proved.
11. But Mr. Shamanna appearing for the accused advanced the complaint that since the finger impression Exhibit P-2 was not got examined by the finger impression expert and since his opinion was not either sought or brought on the recordwith respect to the genuineness of that impression, there was failure on the part of the prosecution to prove that the finger impression Exhibit P-2 was not that of P. W. 7, and that therefore the charge of criminal breach of trust has to fail. He proceeded to submit that if the charge of criminal breach of trust has to fail in that way, the charge of forgery must also similarly fail.
12. It is somewhat surprising that the finger impression Exhibit P-2 was not sent to the finger impression expert for comparison, and Mr. Public Prosecutor appearing for the State was unable to assign any reason why the prosecution did not send it up for' com-parison. That part of the money order form which contains Exhibit P-2 is as material as the other part which contains the finger impression Exhibit P-1. It is so for the reason that that part of the money order form in which is contained Exhibit P-2. is sent to the remitter as acknowledgment by the payee of the receipt of the amount remitted by money order. Both the portions of the money order form arc acknowledgments made by the payee, one of which has to be retained in the postal department as part of its own record and the other delivered to the remitter for his own reference.
13. So, in order to sustain the charge of criminal breach of trust which involves the misappropriation of the amount remitted by money order, it is incumbent on the prosecution to prove that the payee who is P. W. 7 in the present case did not receive the amount which had been remitted by P. W. 8. If the finger impression Exhibit P-2 is that of P. W. 7, the necessary inference is that she did receive the amount sent by money order, and that she acknowledged the payment of that amount by the affix mint of her finger impression Exhibit P-2. This would necessarily be the conclusion to be drawn irrespective of the fact whether the finger impression Exhibit P-1 is that of P. VV. 7 or not. If one of the finger impressions is that of P. W. 7, unless she is able to explain why she affixed her finger impression to the money order form without having received the amount remitteer to her, the .story of the prosecution that there was a misappropriation of the amount should necessarily fall to the ground.
14. So it became the duty of the prosecution to prove that both the finger impressions on the money order form are not those of P. W. 7. But, for some unexplained reason what the prosecution proved was that only one of them was not hers, without proceeding to prove similarly that the other also was not hers. In the absence of any acceptable explanation for not sending up the finger impression Exh. P-2 to the finger impression expert for comparison, the prosecution invites the reproach that the opinion of the finger impression expert, if it had been sought, would have been adverse to the prosecution.
15. But Mr. Public Prosecutor maintained the argument that since P. W. 7 has denied that Exhibit P-2 was her finger in-pression, it became unnecessary for the prosecution to produce expert evidence about the genuineness of that finger impression. In presenting this argument the prosecution contradicts itself, since it did produce expert opinion about the genuineness of that finger Exhibit P-1 notwithstanding the evidence given by P. W. 7 that it was not hers. If the prosecution thought that it could depend exclusively upon the evidence given by P. W. 7, it becomes difficult to understand why it attempted to reinforce the evidence of P. W. 7 with the opinion of the expert with respect to Exhibit P-1 and why it did not seek similar reinforcement in respect of Exhibit P-2.
16. Moreover, the evidence of P. W, 7 makes it abundantly clear, that no weight at all could be attached to her repudiation of the finger impressions on Exhibits P-1 and P-2. Her evidence makes it clear that she was not in a position to state, as any one in her position would be unable to state, whether Exhibits P-1 and P-2 are her finger impressions or not. She is an illiterate person and so it was that she affixed her finger impressions, and a layman, even if he was a literate, would hardly find it possible to assert whether a finger impression is his or not even if he was a person with sufficient education.
17. Now, Exhibits P-5 and P-8 are the finger impressions admittedly affixed by P. W. 7 for comparison by the finger impression expert. When P. W. 7 was in the box she asserted in her examination-in-chief that she had not affixed her finger impressions to Exhibits P-1 and P-2. But in her cross examination she stated that she could not even say in which of the Exhibits P-5 to P-8 she had affixed her finger impressions, and, it is quite intelligible that she could not state .anything about that matter. In that situation, even otherwise, the most obvious thing which the prosecution should have done was to elicit the opinion of the finger impression expert with respect to the finger impression Exhibit P-2, but it did not.
18. The evidence of P. Ws. 1 to 3 upon which Mr. Public Prosecutor depended does not carry the case of the prosecution very far. All that they stated was that in the belief that the finger impressions Exhibits P-1 and P-2 were those of P. W. 7 they affixed their signatures on the money order form in two places. According to their evidence the accused told them that P. W. 7 had visited the post office and drawn the amount and had affixed her finger impressions. So it was that P. Ws. 1 to 3, according to their evidence even if it is believed, felt persuaded to affix their own signatures on the money order form. It is not necessary to discuss the evidence of these three witnesses furthersince even if their evidence is accepted in its entirety, the question whether P. W. 7 was the person who had affixed the thumb impressions which were on the money order form, would still remain to be investigated. And the only other evidence with respect to that matter is that given by P. W. 7 who, as already observed, gave no evidence that she did not receive the amount from the accused.
19. In a case h'ke this where there is a finger impression Exhibit P-2 which purports to be that of P. W. 7, the evidence given by P. W. 7 in repudiation of her finger impression is unsafe to act upon, especially since better evidence in the form. of the opinion of a finger impression expert would have clinched the issue, and, the prosecution by its failure to elicit that expert opinion in the case of Exhibit P-2 after having secured that opinion in the case of Exhibit P-1, has introduced into the prosecution case a very serious lacuna which weakens the charge of misappropriation and leaves it in a state of obscurity and serious doubt.
20. What I have said so far will lead to the conclusion that in the absence of proof that the finger impression Exhibit P-2 is not that of P. W. 7, the charge of criminal breach of trust which is the subject matter of the first charge must fail.
21. If the charge of criminal breach of trust fails, the charge of forgery, in the circumstances of the present case, must also fail.
22. According to the second charge which incorporates the charge of forgery, the offence of forgery was committed by the accused in the context of the offence of criminal breach of trust. Although the second charge did not specifically state which part of the money-order form or money-order voucher, as it is called, it is reasonably clear that the prosecution case was that the two finger impressions Exhibits P-1 and P-2 had been forged by the accused. The discussion so far made about the charge of criminal breach of trust demonstrates that the charge of forgery with respect to Exhibit P-2 is not established since the finger impression expert was not asked to pronounce on the genuineness of that finger impression and did not compare it with the other admitted finger impressions of P. W. 7. Moreover the Sessions Judge himself recorded no specific finding on the question whether Exhibit P-2 has been forged although he was clear in his mind that Exhibit P-1 had been forged by the accused. So the question for consideration is whether the Sessions Judge is right in thinking that the finger impression Exhibit P-1 had been forged.
23. The evidence of the finger impression expert P. W. 6, Narayanrao Shinde was that the finger impression Exhibit P-1was that of the accused and not that of P. W. 7. So it is clear that finger impression was not that of P. W. 7 but that it had been affixed by the accused on that part of the money-order form where Exhibit P-1 is to be found. But the question is whether such affix mint by the accused of his own finger impression in that way constitute an offence of forgery punishable under Section 467 of the Penal Code.
24. One of the essential ingredients of an offence under that Section is that there should be an offence of forgery, and that offence of forgery is committed only when there is the preparation of a false document within the meaning of that expression occurring in Sections 463 and 464 of the Penal Code. Section 464 consists of three parts and what is relevant for the present discussion is only the first part of that section since the second and the third have no application.
25. Now, that first part within which alone the present case can fall, makes it clear that a false document is prepared only when the person who is accused of the offence of forgery makes a false document dishonestly or fraudulently and with the intention of causing it to be believed that that document was made, signed, sealed or executed by someone who did not to his knowledge make, sign, seal or execute it.
26. So, in the case before me the accused could be said to have made a false document by the affix mint of his own finger impression Exhibit P-1 on the money-order form if it is proved by the prosecution that that affix mint was made dishonestly or fraudulently by him, with the intention of causing it to be believed that P. W. 7 has affixed that finger impression, although he knew that she had not. There cannot be the slightest doubt that the accused, when he affixed his own finger impression, knew that P. W. 7 had not affixed her finger impression, and that that is so, is more than obvious from the fact that the finger impression is his own and not that of P. W. 7. There could also similarly be no doubt that when he affixed his own finger impression in that way his intention was to cause it to be believed that P. W. 7 has affixed her finger impression. That being so, the other ingredient of which the first part of Section 464 speaks can be said to have been established.
27. But the principal and the more serious ingredient of that part of that section is that the prosecution should prove that the affix mint by the accused of his own finger impression was made dishonestly or fraudulently.
28. The first part of the Section 464 makes it clear that even if the prosecution proves that the accused had affixed his finger impression with the intention of generating the belief that that finger impressionhad in fact been affixed by the person whose finger impression it purports to be, the offence of the preparation of a false document which is ah essential ingredient of the offence of forgery, is not committed until it is established that that false document was prepared dishonestly or fraudulently.
29. The words 'dishonestly' and 'fraudulently' are respectively defined by Sees. 24 and 25 of .the Penal Code. Section 24 says that an act is done dishonestly when it is done with the intention of causing wrongful gain to one person and wrongful loss to another Section 25 says that a thing is done fraudulently if it is done with intent to defraud, but not otherwise.
30. For the purpose of this discussion it becomes relevant to recall that there has been a failure on the part of the prosecution to prove that there was an offence of criminal breach of trust which means that the offence of misappropriation is not proved. That being so, the affix mint of his own finger impression by the accused on the money-order. form cannot be said to be an act done dishonestly since the intention to cause wrongful gain to someone or wrongful loss to another stands completely excluded. That intention which would have been manifest had the accused misappropriated the sum of money remitted by money-order and had not paid it to P. W. 7, stands completely eliminated when it is not proved by the prosecution that the accused retained that sum of money without paying it to P. W. 7. If there is no wrongful loss either to the postal department or to P. W. 7 and there is no wrongful gain to the accused, the postulate that the accused affixed his finger impression dishonestly stands negatived.
31. Mr. Public Prosecutor who did not, and could not, maintain that there was any dishonest affix mint of his own finger impression by the accused by reason of the failure of the charge of criminal breach of trust, nevertheless asserted that the accused had acted fraudulently in affixing his own finger impression in that way. It was said1 that nothing was clearer than that the accused affixed his own finger impression on the money-order form with a clear intent to defraud, and that therefore his act was a fraudulent act within the meaning of Section 25 of the Penal Code.
32. It becomes difficult for him to sustain that assertion for the reason that, if the offence of criminal breach of trust is not proved by the prosecution, as in my opinion it has not been proved, and so the prosecution has failed to prove that the accused misappropriated the sum of money without paying it to P. W. 7, it could not be maintained that the prosecution has proved that the finger impression was affixed with intent to defraud. If it cannot be asserted by the prosecution that the sum of money remitted by P. W. 8 had not beenpaid to P. W. 7, we should proceed to investigate the charge of forgery on the basis that P. W. 7 had received the amount.
33. That being so, the charge of forgery could be sustained only if it is proved that the intention of the accused when he affixed the finger impression Exhibit P-2 was to defraud someone. I asked Mr. Public Prosecutor to tell me whom the accused intended to defraud or what kind of fraud the accused wished. to practice when he affixed his own finger impression Exhibit P-1 after the amount had been collected by P. W. 7. All that he was able to submit was the production of the belief in the minds of the authorities of the postal department that the finger impression Exhibit P-1 was that of P. W. 7.
34. But that is not the fraud of which , Section 25 speaks. That the generation of the belief that the finger impression Exhibit P-1 was that of P. W. 7, does not by itself constitute the preparation of a false document is what is more than manifest from the first part of Section 464 which speaks of the intention to do so as the second ingredient of the offence of the preparation of a false document. The first ingredient is the preparation of the document dishonestly or fraudulently and the second is the intention to generate that belief.
35. If the mere intention to generate the belief that the document is signed by another person, although to the knowledge of the accused it is not executed by him, is itself an offence of forgery, insistence upon the dishonest or fraudulent preparation of a false document would become unmeaning and purposeless. The intent to defraud of which Section 25 speaks is the intent to commit some act of cheating other than the intention to generate the belief of which the second portion of the first part of Section 464 speaks.
36. It seems to me on a proper interpretation of the words 'intent to defraud' occurring in the 25th Section of the Penal Code, that that intention is established only when the deception has as its aim some advantage or the likelihood of advantage to the person who causes the deceit or some kind of injury or the possibility of injury to another. It is only in that event that there would be an intent to defraud, otherwise not.
37. That, that is so, is clear from the elucidation made by Sir James Stephen in his History of Criminal Law of England in which he observed:--
'There is little danger in saying that whenever the words 'fraud' or 'intent to defraud' or 'fraudulently' occur in the definition of a crime two elements at least are essential to the commission of the crime, namely, first deceit or intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury, or an intentto expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy This intent I may add, is very seldom the only or the principal intention entertained by the fraudulent person whose principal object in every case 'is his own advantage. A practical conclusive test as to the fraudulent character of a deception for criminal purpose is this: did the author of the deceit derive any advantage from it which he could not have had if the truth had been known?'
This exposition of the law was accepted by the High Court of Bombay in Emperor v. Balakrishna Waman Kulkami, (1913) ILR 37 Bom 666 = (14 Cri LJ 518) and in effect by the High Courts of Allahabad and Madras in Narain Dat Tjwari v. Ruclra Dat Bhat : AIR1925All654 and Manika Asari v. Emperor, AIR 1915 Mad 826.
38. So tested, it cannot be said that there was the preparation of any false document in the present case. It cannot he said, having regard to the failure on the part of the prosecution to prove that P. W. 7 had not been paid the amount of the remittance, that the accused had the intention of securing any advantage to himself or that there was any possibility of any injury or the risk of injury to either the postal department or P. W. 7 of P. W. 8 or anyone else. It the finger impression on Exhibit P-2 is that of P. W. 7 the postal department is completely protect-ed against the claims of P. W. 7. P. W. 8 is similarly assured of his remittance having reached its proper destination and P. W. 7 would have received the amount remitted to her. It is this feature which completely eliminates the element of dishonesty or the intent to defraud, and so, the affix mint of his own finger impression by the accused on the money-order form does not constitute preparation of a false document, and if all ' the ingredients of the preparation of a false document do not exist, the offence of forgery cannot be said to have been established.
39. So I allow this appeal, set aside the convictions of the accused of the offences with which he was charged and also the sentences imposed on him. I acquit him ofthese offences.
40. Appeal allowed.