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Motisinh Gambhirsinh Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 468 of 1960
Judge
Reported inAIR1961Guj117; 1961CriLJ76; (1961)2GLR481
ActsEvidence Act, 1872 - Sections 157; Indian Penal Code (IPC), 1860 - Sections 464 and 467
AppellantMotisinh Gambhirsinh
RespondentThe State
Appellant Advocate H.P. Mehta, Adv.
Respondent Advocate H.M. Choksi, Adv.
DispositionAppeal allowed
Cases ReferredAmbar Ali v. Empero
Excerpt:
.....467 of indian penal code, 1860 - person merely attested forged signature on document of receipt - false attestation does not satisfy requirements of section 464 - person cannot be convicted for forgery. - - 7. i hold that there is no merit in the first contention, but i hold that the other contentions are well founded and allow the appeal for the following reasons. dwarkadas, the revenue clerk, has deposed that receipts like ex. empero air1929cal539 ,and contends that if a person falsely pate his name down as an attesting witness to the signature of somebody who he knows has never signed at all, he is guilty of forgery just as well as the scribe. it was observed as follows in that case :i certainly think, though it may be not without some room for argument, that if person falsely..........case that without paying the amount of rs. 0-10-0 to himbhai manorbhai the appellant prepared a false document purporting to be a receipt by hirabhai manorbhai for rs. 0-10-0 and sent it to the taluka office. it was also the case of the prosecution that hirabhai manorbhai had died in 1950. it was also the prosecution case that the receipt was attested by the appellant in column 5. he was therefore charged with having forged a document purporting to be a valuable security, namely the receipt for rs. 0-10-0 purporting to have been signed by one hirabhai manorbhai of sinor (who was then dead) and attested by him with intent to commit fraud and to cause damage to the son of the deceased and to the government. 3. at the trial, the prosecution relied on ex. 11, the alleged document.....
Judgment:

V.B. Raju, J.

1. This is an appeal against the judgment of the leaned Additional Sessions Judge, Baroda, in Sessions Case No. 26 of 1960, convicting the appellant under Section 467, I. P. Code, and sentencing him to rigorous imprisonment for six months.

2. The prosecution case was that the appellant, who was a Talati in charge of Manjrol Saja in Sinor Taluka, was entrusted with certain amount of money in 1956 for distribution to cotton growers within his range of three villages. One of these persons was one Hirabhai Manorbhai, and the amount payable to him was Rs. 0-10-0. It is the prosecution case that without paying the amount of Rs. 0-10-0 to Himbhai Manorbhai the appellant prepared a false document purporting to be a receipt by Hirabhai Manorbhai for Rs. 0-10-0 and sent it to the Taluka Office. It was also the case of the prosecution that Hirabhai Manorbhai had died in 1950. It was also the prosecution case that the receipt was attested by the appellant in column 5. He was therefore charged with having forged a document purporting to be a valuable security, namely the receipt for Rs. 0-10-0 purporting to have been signed by one Hirabhai Manorbhai of Sinor (who was then dead) and attested by him with intent to commit fraud and to cause damage to the son of the deceased and to the Government.

3. At the trial, the prosecution relied on Ex. 11, the alleged document purporting to be a receipt, which consisted of various entries. It consisted of 5 columns. In the first three columns were entered the serial number, name of the person and the amount paid. The fourth column was meant for the signature of receiver. The fifth column contained certain initials. The prosecution relied mainly on the evidence of the complainant, who is a Circle Inspector, of, Dwarkadas, of the revenue clerk in 1956 and of the Mahalkari Anantrao (Ex. 15).

4. The accused in his examination at the trial stated that in the list the signature of Hirabhai Manorbhai had not been taken in his presence and that he did not attest it.

He also admitted that the attestation opposite the signature of Hirabhai Manorbhai in Ex, 12, which is the entry at serial No. 37, was in his hand-writing.

5. On this evidence, the learned Sessions Judge held that the appellant had made a false statement purporting to be a valuable security with intent to cause damage to any person or to the public or with intent to commit fraud. Thereupon, he convicted the appellant as stated above.

6. In appeal, it is contended by the learned counsel for the appellant that the attestation is not against entry No. 37 rejating to Hirabhai Manorbhai that item 37 is 14th item in column 2, whereas the signature in column 4 is item No. 16, and attestation is item No. 15. It is therefore contended that the attestation alleged to be that of the appellant did not really purport to attest the alleged signature of Hirabhai Manorbhai. It is also contended that. Ex. 11, the document on which the prosecution relied, is not the original document, but only an office copy kept in the Mahalkari's office. According to the learned counsel, the original document was sent to the Mahalkari's office who in turn forwarded it to the Accountant General as required, by the rules. It is therefore contended that Ex. 11 is not the original document but a copy. Finally, it is contended that the appellant did not make any false document within the meaning of Section 464, Indian Penal Code.

7. I hold that there is no merit in the first contention, but I hold that the other contentions are well founded and allow the appeal for the following reasons.

8. As regards the first contention, Dwarkadas (Ex. 9) has deposed that entries in columns 1 to 3 of Ex. 11 are in the handwriting of the accused. The first three columns of entry No. 37 are also in the handwriting of the accused. He stated that he cannot say in whose handwriting the signature in column 4 of entry No. 37 is. The attestation isin the handwriting of the accused.

That the attestation against the signature of Hirabhai Manorbhai in Ex. 12 is that of the accused is proved by the evidence of Dwarkadas and admitted by the accused in his examination at the Sessions trial.

9. As regards the second contention, the prosecution relied on the document, Ex. 11, and alleged that it is a document forged by the accused. It is for the prosecution to show what this document is. Unfortunately, the prosecution has not led any evidence to show how this document came to be produced in Court. Dwarkadas, the revenue clerk, has deposed that receipts like Ex. 11 have to remain with the revenue clerk. The originals go to the Accountant General and a copy is kept in the office. He also deposed that the accused did not produce Ex. 11 in October 1956, although Ex. 11 bears the month October 1956. He does not recollect if the accused produced it in October 1956 or not. He does not remember exactly when the accused produced the list of Ex. 11. According to him it was produced most probably after he left, which was in April 1957. He also denied that he had produced Ex. U in the inquiry. Therefore it is clear that Ex-11 was not produced by the accused before Dwarkadas left nor was Ex. 11 produced by Dwarkadas in this inquiry. The Mahalkari (Ex. 15)0 has deposed as follows :

'The Talati had to take the signatures of payees in the list prepared for that purpose. He had to produce the list after full payment to the Taluka office. The original list is sent to the Treasury and the copy is kept in the Taluka office. In the course of my inquiry I did not see the original list Ex. 11, but I saw the office copy.'

He also deposed that he inquired as to where the original list of signatures was and he learnt that the original was in the treasury. This witness therefore does not prove how Ex. 11 came to the Court. The complainant Bansilal (Ex. 5) has merely deposed that after the inquiry he got papers for lodging the complaint and accordingly he lodged the complaint (Ex. 6). In the cross-examination he has stated that ha had no personal knowledge with regard to this transaction. The learned Government Pleader wanted to rely upon the complaint produced by this witness. When the complainant admits that he has no personal knowledge regarding this transaction, his complaint being his previous statement cannot be admitted in evidence. A complaint can only be used under Section 157 of the Evidence Act to corroborate the evidence of the complainant. A witness can depose to facts within his personal knowledge and unless he gives substantial evidence of the facts within his personal knowledge his evidence cannot be corroborated. In the absence of substantive evidence of this witness as this witness has no personal knowledge, his complaint cannot be used for corroboration. We cannot, therefore, look at the complaint lodged by him. He has also not deposed that he had produced any document in the Court along with his complaint It is clear from the evidence of the Revenue clerk Dwarkadas and the Mahalkari that the original must have been sent to the treasury. The Mahalkari had only seen the office copy and not the original. The Mahalkari has deposed that he inquired about the document and he learnt that the original was in the treasury. In such circumstances, the prosecution should have called for the document from the office o the Accountant General or from the treasury, and there is no evidence of any such efforts having been made. If Ex, 11 is an office copy as admitted by the Mahalkari in his evidence, no forgery can be committed in respect of a copy unless the forgery amounts to the making of a false copy. The charge against the appellant is not of making a false copy. On this ground, the conviction of the appellant must be set aside.

9a. On another ground also, the conviction must be set aside, because before there can be conviction for forgery, a false document must have been made as defined in Section 464, I. P. Code. In the present case, the first part of Section 464, I. P. Code is applicable. That part reads as follows ;

'A person is said to make a false document -- who dishonestly or fraudulently makes, Signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, Signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed.'

In this case, admittedly it is not the prosecution ease that the appellant made the signature in the 4th column of Ex. 12 in Ex. 11. There is no evidence to prove that the signature in column 4 was made by the appellant. This is conceded by the learned Government Pleader. The appellant did not therefore make the whole of tile document. Columns 1, 2 and 3 were not false. The prosecution relied only on the entry in column 5, i.e. the initials as being a false document. According to the prosecution, the initials of the accused in column 5 of Ex. 12 in Ex. 11 amount to an attestation of the entry Ex. 11, which purports to be a receipt by deceased Hirabhai. Assuming that the initials of the accused in column 5 amount to an attestation of the signature in column 4, they amount to a statement that the signature in column 4 is the signature of Hirabhai Manorbhai. If the signature in column 4 is not of Hirabhai Manorbhai, the attestation in column 5 would mean that the appellant made a false statement stating that the signature in column 4 is that of Hirabhai Manorbhai. That would amount to making a false statement and would not amount to making a false document. Even if the accused has made a part of the document, namely column 5 of Ex 12 that part in fact was made or executed by the person by whom it purports to be executed, namely the accused and therefore accused cannot be said to have made a false document. Including in a document, certain false recitals or particulars is not forgery. The mere making of a false statement in a document would not come within Section 464, I. P. Code and would not amount to forgery. Here we are dealing with a receipt which the law does not require to be attested. It is not necessary to consider In this case whether falsely attesting a document which the law requires to be attested would amount to forgery.

10. The learned Government Pleader, however, relies on Ambar Ali v. Empero : AIR1929Cal539 , and contends that if a person falsely pate his name down as an attesting witness to the signature of somebody who he knows has never signed at all, he is guilty of forgery just as well as the scribe. If we look at the judgment in that case, which is given by Rankin, C. J. and Buckland, J., of the Calcutta High Court, we find that the learned Judges themselves felt that there was some room for argument on this point. It was observed as follows in that case :

'I certainly think, though it may be not without some room for argument, that if person falsely puts his name down as an attesting witness to the signature of somebody who he knows has never signed at all he is guilty of forgery just as well as the scribe. There may be room for argument.'

The learned Judges were dealing with a case in which accused were not charged under Section 467, and they observed that the accused should have been charged under Section 467 also. The learned Judges did not therefore decide any question, which arose before them as to whether in such a case a person would be guilty of forgery. They merely made some observations. In any case with great respect to the learned Judges of the Calcutta High Court, for the reasons given above, I hold that a person who merely attests a forged signature on a document of receipt cannot be convicted o forgery. In the case of a person who merely attests a document, we have to see if the requirements of Section 484, I. P. Code, relating to 'part of a document' are satisfied. In the case of a charge of forgery relating to a part of a document it must be proved (1) that the accused made, signed, sealed or executed that part of the document, (2) that part of the document was not mads, signed, sealed or executed by or by the authority of the person by whom or by whose authority it purports to have been made, signed, sealed or executed, (3) that the accused had knowledge of (2), (4) that the accused had the intention of causing it to be believed that that part of the document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows it was not made, signed, sealed or executed, and (5) that there was dishonesty or fraud on the part of accused. Of the above ingredients, the second, third and fourth ingredients would be absent in the case of attestation by a person who admits having made the attestation, because the attestation is in fact by a person by whom it purports to be. Before an attestation can amount to forgery, one of tile essential requirements is that it must be made or signed by a person by whom it does not purport to be made or signed.

11. In this connection, the learned Government Pleader relies on Explanation 2 to Section 464, I. P. Code, which reads as follows :

'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.'

The Explanation explains that the making of a false statement amounts to forgery even if the false document made is in the name of a fictitious person. It provides that for making a false document ft it not necessary that the person in whose name the false document was made must be alive or must be a real person, and it is immaterial whether that person is a fictitious person or a deceased person. Explanation 2 does not otherwise widen the scope of Section 434. We have to look at the main part of Section 464 to see if attestation amounts to making a false statement. I have already shown that mere false attestation does not satisfy the requirements of Section 464. Learned counsel for both sides have assumed that the putting of initials in column 5 amounts to attestation. I need net consider this question, as I am setting aside the conviction on other grounds.

12. I, therefore, hold that in this case the accused has not committed the offence of forgery. It is not necessary to consider whether any other offence has been committed by the appellant and whether that offence amounts to a cheating, as the original document has not been produced and according to prosecution witnesses Ex. 11 is a copy. The conviction of the appellant under Section 467, I. P. Code, and the sentence passed upon him under that section are, therefore, set aside. Bail bond to be cancelled.


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