1. The accused has been convicted of an offence punishable under Sections 467 and 474 of the Indian Penal Code in the alternative, the forgery being alleged as consisting in certain alterations in Exhibit B made after its execution by second prosecution witness and accused, the result being the making of a false document, purporting to be a valuable security. Both learned Judges, before whom the appeal originally came, held that the alterations were so made by accused; and nothing now advanced leads me to dissent from this conclusion. The questions, to which the argument has been mainly directed before me, are: (1) whether the alterations were made dishonestly or fraudulently, (2) whether they could amount to forgery either of a document or a valuable security, if, as is alleged, they were made before the completion of the document and (3) whether the sentence is excessive.
2. One contention on the first of these questions, that accused made the alterations, intending to get second prosecution witness's consent to them before obtaining the other signatures, which, it is said, would make the document effective, can be dealt with shortly. For it was not put forward at the trial, or so far as I can judge, at the original hearing of the appeal. And the reason is clear. Accused then put forward the case, to which he adhered before me, that the alterations were made before second prosecution witness signed; and he adduced evidence in support of it, which, if believed, negatives the contention under consideration. So also, so far as it goes, does the evidence for the prosecution. In these circumstances I pass at once to the argument that the alterations were not made fraudulently or dishonestly, because they represented what accused in good faith believed to be the truth and intended to use to support what in good faith he claimed or might claim. That this defence is open to him is entailed by the decisions in Queen-Empress v. Syed Hussain I.L.R. (1885) All. 403, Queen-Empress v. Sheo Dyal I.L.R.(1885) All. 459, Queen v. Kishan Pershad (1870) 2 N.W.P.H.C.R. 202 and Manicka Asari v. Emperor (1915) M.W.N. 278. But, when, as is pointed out in the two last cited cases, the result is to exempt the accused from liability in respect of extremely reprehensible conduct, the facts must be scrutinised closely and the legitimacy of his claim or his good faith in its assertion must be established clearly. The question is one of fact and reference to the evidence is therefore necessary.
3. [His Lordship then dealt with the evidence and found that the additions to Exhibit B were made fraudulently and dishonestly and continued:]
4. The next question is whether accused's making of them amounted to forgery under Section 463 of the Indian Penal Code notwithstanding that they were made when Exhibit B was not completed and, it is alleged, was not to be legally effectual until all the persons specified in it had signed it. The result already reached is that Exhibit B was altered by accused dishonestly and fraudulently in a material part after its execution by himself and second prosecution witness; and therefore its character as a 'document' is the only further matter to be established. Certainly it fulfills the requirements of the definition of a 'document' in Section 29, since the matter expressed on the paper comprising it might be used, even apart from the additions under discussion, as evidence of the rights in the property, which second prosecution witness claimed or did not claim and which he had or had not agreed to transfer; and it cannot matter, for the present purpose whether it does or does not purport to be more. It will be a question how far completion is necessary, when the character of Exhibit B as a valuable security and the application of Section 467 are under discussion. But, if by completion is meant the taking of the steps necessary to make the document legally enforceable, as, it is contended, the signatures of accused's father and brothers would have made Exhibit B, it is clear from illustrations (j) and (k) to Section 464 that completion is not essential. In my opinion the evidence establishes all that Section 462 read with Section 29 requires Accused therefore is guilty at least of the offence punishable under Section 465.
5. Before entering on discussion of the further question whether he is guilty also of forgery of a valuable security, punishable under Section 467, the reason why no reference has so far been made to the English authorities, which have been relied on may be stated. It is that they relate to charges of forgery, amounting to felony, of various instruments specified in the Statute, 24 & 25 Vict., cap. 98, corresponding with the more serious charge next to be considered, not with that already dealt with It is no doubt true that the English definition of forgery, as 'the false making of any written instrument for the purpose of fraud and deceit', R. v. Parkes (1796) 2 Leach 775, is the same for both forgery at common law and under the Statute. But English procedure recognizes no principle similar to that provided in Section 238 of the Code of Criminal Procedure, vide The Queen v. Thomas (1837) 2 Mood. 141, and therefore it does not follow, and it does not appear, that the absence of completion in the cases otherwise in point, to which reference will be made, would have entailed an acquittal, if the indictment had been for a misdemeanour punishable at common law, an opinion to the contrary being in fact implied in the judgment of Stephen, J., in one of them, Reg. v. Harper (1881) 7.Q.B.D 78 and accordingly it is only in connexion with the question remaining for decision that it is necessary to refer to those cases or to the extract from Halsbury's Laws of England, which Sadasiva Ayyar, J., has adopted as expressing the law and, which, it may be added, occurs in the sub-section of that work dealing with forgery by statute.
6. The question is whether Exhibit B purported to be a valuable security, when the alterations were made and when, it was assumed for the defence, it had not been made effectual by the signatures of all the parties referred to in it; and with regard to the arguments from authority, which have been addressed to me, two observations may be offered. Firstly, my learned brother's application of the extract from the Laws of England above referred to (volume 9, page 721) is open to the objections that some words have (with all due deference) been misconstrued and others, which are material, have been omitted. For it begins with a statement relating to instruments, which, had they been genuine, would have been effectual, but are not so for want of compliance with some statutory direction and not on account of any patent defect; this is clearly beside the present point and the cases cited in connexion with it show that the defect contemplated is not one, which the accused could have made good--vide R. v. Donnelly (1835) 1 Mood. 438 and R. v. Moffatt (1787) 1 Leach 431. Then follows the portion directly in point 'an instrument, which after making or alteration still remains incomplete, cannot be an order' to pay, such as the statute contemplates. But this omits the words in the original, which show the nature of the incompleteness in question. They are after the word 'incomplete' the words 'and has no resemblance to a genuine instrument' and, as R. v. Rushworth (1816) R. & R. 317, the case referred to in the footnote, R. v. Pateman (1821) R. & R 455 and R. v. Burke (1822) R. & R. 406 show, they are meant to cover instruments which have not and never could acquire the form of any specified in the statute.
7. Secondly, as regards Regina v. Turpin (1849) 2 C. & K. 820 I fully appreciate the reluctance of Phillips, J., to interpret our Code with reference to the brief report of a single remote English authority; but I deal with it, since it has been made the foundation of a general argument. It was no doubt held in it that in the absence of proof that all the necessary signatures had been attached to a cheque before it was altered fraudulently, it must be treated as incomplete at the time of such alteration and could not be the subject matter of forgery. But reasons for doubting the correctness of this decision are give by the learned editor of Russell on Crimes (7th Edition, volume 2, 1634). And R. v. Kirkwood (1831) 1 Mood 304 and R. v. Dade (1831) 1 Mood. 307 show that forgery can be committed by a person who makes a part only of a forged instrument, if he intends that others shall complete it. In those cases there was no charge of conspiracy and it therefore does not seem material that the completion was intended to be effected by further forgery, and not, as here, by persons acting honestly. These decisions followed the decision in R. v. Bingley (1821) R. & R. 449 in which the trial Judge submitted the case as being that:
unless in such case all are principals, the law seems to reach only the party, who performs the last operation, and thereby makes the forged instrument complete (viz., in this case the party who added the signature, and in the case of a forged deed, who adds the seal), who may be one of the least active and the least guilty of those concerned;
and this appears to have been accepted by the Court, Again in R. v. Lee (1848) 3 Cox. 80 a case resembling R. v. Turpin (1849) 2 C. & K., 820 except that forged signatures, not alterations, were in question, the fact that the instrument, a cheque, was not effective, until the genuine signature of a clerk had been attached, was held immaterial; and, although the argument for the Crown was according to the report that this signature was necessary, not to complete the instrument, but as a guarantee for the genuineness of the other signatures, the defence contention disallowed in the short ruling of the judge was in accordance with the statement of facts that the clerk's signature was under the rules of the complainant society, by which its relations with its Bank were governed, essential, to the validity and therefore the completeness of its cheques. It is not necessary to refer in detail to other more recent cases, in which the completion of a document by signatures essential to its validity has been considered with reference to its liability to stamp duty and other matters unconnected with criminal responsibility. It is sufficient that no analogy with English law constrains me to hold generally that the stage, at which a document purports to be a valuable security, is that, at which all signatures, which it is intended to obtain or which are necessary, have been affixed. In the present case it is not necessary to insist on the broad view, which was taken in the cases of Bingley, Kirkwood and Dade and it is sufficient to adopt what may, it would appear, have been the principle underlying R. v. Lee (1848) 3 Cox. 80 and Reg. v. Harper (1881) 7 Q.B.D. 78 that the documents in question therein, negotiable instruments, were complete, when they bore any signature in virtue of which they would appear to the persons, to whom they might be offered, to be valuable securities, that is when they purported to do so, without reference to the knowledge of the ostensible parties to them that they were not so in fact.
8. To apply these observations to the present case, Exhibit B, as it stood after signature by prosecution second witness and delivery by him, purported to be an agreement by him in an ordinary form to sell in case the price stipulated for was paid within the date fixed and an agreement for the benefit of accused's minor son was executed simultaneously by the vendees; and there are also provisions regarding the subsequent management of the property for the minor's benefit, which also are to be included in that agreement. The result is that prosecution second witness promised to convey on receiving the payment and on the vendees executing the agreement. Exhibit B therefore imposed an obligation on prosecution second witness, but none at all on accused or his family by way of adherence to the arrangement or otherwise. For them accordingly it created only an option (that is, in the words of Section 30 a legal right) without reference to any condition or any obligation, to which their consent was necessary. Accused, however, contends that it did not create such a right, because there was a condition precedent, not appearing explicitly on its face, that his family should sign it. Such a condition is not in my opinion expressed or implied in its terms; and, the obligation imposed being only on prosecution second witness no reason for implying any such condition would suggest itself to any person, to whom it might be shown, to the possible purchasers for instance referred to by prosecution second witness in evidence or any Court, in which a suit might be instituted to compel registration or for specific performance; in fact to any one, except accused and his family. And that is sufficient to justify a finding that Exhibit B purported to be a valuable security.
9. In fact however it is not, as I understand the case, necessary to have recourse to this ground of decision, because I hold that Exhibit B not only purported to have, but had that character. It has been pointed out that its terms did not expressly or by necessary implication require the signatures of accused's family to make it operative against prosecution second witness; and I do not find any separate agreement proved to that effect. It is said that one was necessary in his interest, as immunity from any possible attacks on his title by accused's father and brothers was the consideration for his promise to sell. But nothing to that effect was expressed or put to him in cross-examination. There is no evidence that these persons ever made or contemplated such an attack. The evidence of defence fourth witness that prosecution second witness 'appeared to be a trustee' is supported by nothing definite and is not consistent with the conclusion of my learned brothers and myself as to the origin of his title. There was in view of the relationship between prosecution second witness and accused nothing improbable in Exhibit B being voluntary; and the fact that the former not only signed, but also delivered it without previous negotiation with the latter's family indicates that it was so. The direct evidence relied on is the statements of prosecution witnesses Nos. 1 and 3 that the document would not be complete until it had the signature of all five persons mentioned in it. But those statements did not necessarily mean that without them it would not be legally enforceable against prosecution second witness or more than that it was in fact accused's intention to obtain them In fact prosecution second witness deposed 'I heard no talk that Exhibit B should have effect only after all the parties signed;' and prosecution witnesses Nos. 1 and 3, who were present at the execution by prosecution second witness, the latter being his son, do not refer to any insistence by him on the necessity for further signatures, or to any conversation regarding it. In these circumstances I cannot find that the condition precedent relied on by accused was either expressed or implied in Exhibit B or established by independent evidence; and I therefore hold that Exhibit B was a valuable security when accused altered it.
10. The result is that accused's conviction of the offence punishable under Section 467 or Section 474 of the Indian Penal Code in the alternative is confirmed. As regards sentence both learned judges considered that the period of four years imposed by the lower Court was excessive and I agree with them. Having regard to the circumstances and in particular to the fact that the forgery was discovered before the accused could profit by it, he will suffer one year's rigorous imprisonment, the sentence being reduced and the appeal allowed to that extent.