Sadasiva Aiyar, J.
1. The appellant has been convicted of the offence of forgery of a valuable security under Section 107 of the Indian Panel Code or in the alternative of being in possession of a valuable security knowing it to be forged and intending to use it as genuine under Section 474 of the Indian Penal Code.
2. The facts are complicated and they may be shortly stated thus:
(a) The appellant, G.S. Ramasami Iyer, is the son-in-law of prosecution 2nd witness, Vengappa Aiyar. Prosecution 2nd witness's daughter, accused's first wife, died in 1910, leaving a minor male child Narayanasami. During her lifetime, the accused's family consisting of the accused, his father and his two brothers became involved in debts and all their lands in the Ganapathi Agraharam and Manalur villages were brought to sale in Court auction by their creditors. They were purchased in the name of one Aiyyasami Aiyar, the benamidar of the accused's father-in-law, Vengappa Aiyar (prosecution 2nd witness), and the said benami purchaser afterwards gave a release in favour of prosecution 2nd witnsss. It cannot be said on the facts that the accused's father-in-law made the purchase as benamidar of the members of the accused's family in 1908, but there can be no doubt that there was some understanding between the accused and his father-in-law that the properties should come back to the accused or his family on prosecution 2nd witness being recouped all the expenses he incurred in making the purchase in Court auction and which he might incur in discharging the mortgage and other debts due by the accused's family.
(b) As I said, all this took place about the year 1908. The accused's marriage with his first wife took place about the year 1897. Prosecution 2nd witness's son, prosecution 3rd witness, says 'accused did not live in our family after his marriage, but sometimes with us and sometimes with his own family.... There was no ill-feeling between accused and his father about his living with us. Accused managed the auctioned lands while he lived in our family. In 1912, Ramaswami Aiyar, Sub-Inspector of Police, came to hold an inquiry. Then some of the lands were under cultivation, we and accused were cultivating them.' Prosecution 5th witness himself says that the accused lived in prosecution 2nd witness's family till his wife died and that when accused was in his (prosecution 2nd witness's) family, he was managing the lands mentioned in Exhibit B (Exhibit B being the document alleged to have been altered by forgery). Mr. G.S. Ramachandra Aiyar, a Vakil of this High Court of fourteen years' standing, is accused's sister's husband. He says as defence 4th witness: 'Till 1905, accused was living in his own family house. After that he lived both in prosecution 2nd witness's family and in his own family house. There was a quarrel between accused and his father as accused wanted to have all the family properties for himself. During the negotiations of Exhibit III, prosecution 2nd witness said he originally sought the lands at the auction for the benefit of accused's family. He gave me to understand that the enjoyment was with the accused. While accused's wife lived, prosecution 2nd witness and he were on good terms. Prosecution 2nd witness in 1912 appeared to be a trustee, the beneficiary being accused's family and prosecution 2nd witness had to be reimbursed in a sum of about Rs. 12,000. I understood the accused had the benefit of the produce of the lands.' It is admitted that in the negotiations which led to the writing of Exhibit B in 1912, prosecution 2nd witness agreed to convey the lands for Rs. 12,000 to the accused's family though the lands, etc., were worth Rs. 30,000, He has in February 1917 given up the lands, etc., agreeing to receive Rs. 19,000 (see Exhibit IV).
(c) The accused's minor son has always been living with his maternal grandfather. After accused's first wife's death in 1910 the feelings between the father-in-law and the son-in-law became estranged and in respect of the properties which had been purchased in Court auction by prosecution 2nd witness but which were allowed to be enjoyed by the accused, Criminal and possession cases were instituted between the parties beginning in November 910 (see Exhibit V). Both sides being respectably connected, relations intervend in 1912. On 25th July 1912 an agreement was drawn up as between accused and his father-in-law, Vengappa Aiyar. That agreement fell through and then the parties went before Mr. G.S. Ramachandra Aiyar, High Court Vakil, already referred to (defence 4th witness), in August 1912. He made a settlement which was signed in his presence by prosecution 2nd witness, by the accused, by the accused's father and by the accused's two brothers. (I might add here that the accused's first wife left a daughter who was married to prosecution 2nd witness's son's son). Exhibit III is to the effect that on payment of Rs. 12,000 to the father-in-law (Vengappa Aiyar) Vengappa Aiyar should convey half the lands to his deceased daughter's son, that is, accused's son, Narayanaswami, and the other half to the other members of the accused's family after 400 gulies were given away to accused's mother.
(d) Even this agreement seems to have fallen through and then we come to the disputed document Exhibit B, dated 11th December 1912, in which the accused's mother's name which appears in Exhibit III is left out and the Rs. 12,000 mentioned in Exhibit III is increased to Rs. 12,250 by the addition of Rs. 250 for interest between the date3 of Exhibits III and B.
(e) This document, Exhibit B, begins by calling itself an agreement between the accused's father-in law, Vengappa Aiyar, on the one hand, and four persons, namely, accused's father, accused and accused's two brothers, on the other hand. It is wholly in accused's handwriting. Prosecution 1st witness himself says: 'the document is not complete unless accused's father and brothers sign' (the signatures of accused's father-in-law and accused alone now appear in the document). Prosecution 3rd witness says: 'It was arranged that every one of the five parties should sign the agreement, Exhibit B, before it was complete.' Thus the prosecution witnesses themselves admit that the document was to have no legal effect till the five signed. The accused was entrusted with the duty of persuading his father and two brothers to sign and until their signatures were put in, it was to have no legal effect (see also Exhibit IV, wherein paragraph No. 11 Exhibit B is admitted by everybody interested to be an incomplete document, void and of no effect).
(f) Prosecution 1st witness says 'on the night of the 12th December' (the day after the writing of Exhibit B) 'I was sitting with accused's father, leaving the document on a table. The accused took me out of the house and told me that some jewels, etc., of his family were with Vengappa Aiyar, prosecution 2nd witness, that they should be given to him and that the document should undertake to deliver these to him, failing which his father and brothers could not sign.' Prosecution 2nd witness, the father-in-law, says: 'I can't say if accused's name was cut on his vessels. I do not know if accused's family had such vessels. I gave my daughter to the accused as I thought he was rich. None of his jewels, vessels, etc., came to my house when he fell into financial trouble. Accused's wife died in my house. She was wearing jewels then. I did not take possession of them. I don't know if the document was read out to accused's father and brothers or if they approved. When Exhibit B was being written accused was making suggestions, I don't know what.' Prosecution 3rd witness, the son of prosecution 2nd witness, is more frank than his father and says: 'My elder sister,' that is accused's wife, had jewels worth Rs. 1,600. She died in my house. We brought her there because the accused's family were in financial straits. But he went on to say that when his sister died, she wore jewels worth only Rs. 100 and that the other jewels had been sold without her mentioning the fact to them. Prosecution 5th witness says: 'Objections were raised about vessels and jewels during the negotiations. Tirukkalavur Subbier, defence 5th witness, was present then. I forget if prosecution 2nd witness denied possession of the jewels and vessels. I have seen her (accused's wife) wear jewels as a rich man's daughter does.' Then Tirukkalavur Subbier, a respectable independent gentleman, says: 'Accused and prosecution 2nd witness spoke about vessels and jewels of the family. Prosecution 2nd witness consented to return them. Prosecution 1st witness was then present. Prosecution 2nd witness touched accused on the head and said he would not deceive him. There was talk that accused's brothers and father should sign to complete the document. After it was written, accused read it. It is Exhibit B. All disputed matters were dealt with in it. There was a provision regarding the return of the vessels, etc. Prosecution 1st witness and accused had each brought a draft. I heard both read.' Defence 6th witness says: 'Accused was arrested for a decree debt. His wife wore jewels of over Rs. 2,000. When he become straitened in circumstances he removed his moveables to Kallur,' that is, prosecution 2nd witness's village, accused's village being Ganapathy Agraharam. 'His wife died there and her jewels were there.' It seems to me clear that the accused and his father wanted that a provision should be made in Exhibit B for the return of the wife's jewels and of the accused's vessels which had been saved (from attachment by the creditors of 1st accused's family) through their removal to prosecution 2nd witness's house.
3. In the paper Exhibit B, as it now stands, it is admitted on both sides that after the body of the document was written by the accused, there have bean short sentences or clauses added in four or five places in accused's writing. One added sentence at the end of the 2nd paragraph provides that the accused's family should lose their present enjoyment of the lands to be sold to them by prosecution 2nd witness if they failed to pay Rs. 12,250 within 13th April 1913. This addition, if assented to by the accused's father-in law, prosecution 2nd witness, who is one of the executants of the agreement, will imply an admission by him that the lands are in accused's possession. At the end of the 3rd paragraph, an addition Was made that vessels, jewels and articles remaining with prosecution 2nd witness should be returned. In another portion, (a few lines before the list of the property to be given over to accused's mother) the accused inserted words, again indicating that the lands were then being enjoyed by accused's father, accused, etc. One word 'pairil' in the 1st paragraph alleged to be an addition by the prosecution after the body was written was denied by the accused to be an addition and I am satisfied on looking at the document that it could not be an addition, for without that word, there would be an inexplicable interval between the words written before and after it. As regards the other admitted additions, they relate to the enjoyment of the lands by the accused's family notwithstanding their absolute ownership in prosecution 2nd witness (which is fully admitted in the document) and to the return of jewels, vessels, etc., (value not mentioned) by prosecution 2nd witness. The prosecution alleged that these additions were made after the accused and his father-in-law and the two attesting witnesses had signed the document, while the accused says that, though he added them after he first wrote the body, he entered them before he and his father in-law and the attesting witnesses signed it. The material questions for decision, therefore, are, (1) whether the alterations about the enjoyment of the lands, and the return of the vessels and jewels were in the document Exhibit B before prosecution 2nd witness signed it; (2) whether such alterations were made dishonestly and fraudulently by the accused, if they were put in by him after his father-in-law signed it and without his knowledge or consent; (3) assuming again that the alterations were subsequently made without prosecutions 2nd witness's knowledge or consents whether Exhibit B thereby became a forged document.
4. I attach very little weight to the omission in the draft A of these additional provisions found in Exhibit B, because several other sentences which are not in A are included in the body of B in its admittedly unaltered state, that is, in the body of B, even excluding the clauses in dispute.
5. There can be no question that the principal prosecution witnesses are not wholly reliable. Prosecution 1st witness, nephew of prosecution 2nd witness, though living in Kallur, pretends not to have discussed with his uncle, prosecution 2nd witness, about the genuineness of the alterations in Exhibit B or about the possession of the property and not to 'remember' that Rs. 200 were fixed for interest on the Rs. 12,000. He was very angry with the accused for having taken the document from the table where it had been left by him and he brought a theft case against the accused which was thrown out. The accused's father-in-law, prosecution 2nd witness, is also an enemy of the accused and he had Civil and Criminal litigation (about the possession of the lands) with the accused. He admits: My objection to the interlineations is not that they injure me, but because I had not agreed to them. I cannot say how I am injured by them. Prosecution 3rd witness who is able to say that some portions of Exhibit B are sub sequent additions said: 'There was no mention of payment of 50 halamn to prosecution 2nd witness on account of accused. I forget if there is such a provision in Exhibit B. Accused made suggestions when Exhibit B was being written, I cannot give details of them.' Though thus the evidence of prosecution witnesses Nos. 1 to 3 is of little value, I think the Sessions Judge's view that the principal alterations about the possession of lands and return of jewels and vessels were made after prosecution 2nd witness and the attestors signed it can be supported on the evidence of prosecution 4th and 5th witnesses who are the two attestor?, notwithstanding that the evidence of defence 5th witness Tirukalavur Subbier tends to the contrary conclusion. Except, therefore, as regards the alleged addition of the word 'pairil' I would concur with the finding of the learned Sessions Judge that the other additions were made by the accused subsequent to the signing of the document by prosecution 2nd witness, by the accused and by the attestors.
6. Coming to the second point, I am of opinion on the evidence that the additions have not been shown to have been made with any dishonest or fraudulent purpose. The accused seems to have been in possession of the lands to be sold by prosecution 2nd witness. Prosecution 2nd witness seems also to have been in possession of some jewels and vessels belonging to the accused's family. Accused honestly thought that the signatures of his father and his brothers could not be obtained without mention being made in the document of these matters, and he might have further honestly believed that he could persuade his father-in-law, though he had already signed the document, to agree to these subsequent alterations. Even if this further assumption is untenable, dishonest or fraudulent intent does not follow. The making of a false receipt in order to support a true state of facts was held not to be forgery in Ram Prasad Maity v. Emperor 12 C.W.N. 1113 : 8 CRI.L.J. 317 : 8 Cri. L.J. 418. In Emperor v. Surendra Nath Ghosh 7 Ind. Cas. 629 : 12 Cri.L.J. 277 : 14 C.W.N. 1076 : 11 CrI. L.J. 505 : 88 C. the addition of a name to the list of attesting witnesses of a kabu-liyat was held not to be a forgery if there is no fraudulent or dishonest intention. In Manika Asari v. Emperor 28 Ind. Cas. 102 : M.W.N. 278 : 16 CrI. L.J 246, decided by Sir William Ayling, J., the conclusion is thus stated in the head-note: 'Where the accused altered a document without the authority of the executants after its execution and it was proved that the alteration was made to prevent other people from setting up a claim to property which was admittedly in the possession of the accused, the object cannot be said to be dishonest and the man is not guilty of forgery under Section 46 A of the Indian Penal Code. An intent to defraud implies something more than mere deceit. The advantage intended to be secured must be something to which the party perpetrating the deceit is not entitled either legally or equitably. There can be no intention to defraud where no wrongful result was intended or could have arisen from the act of the accused. A man cannot be convicted of forgery where his intention has been merely to secure something to which he was legally entitled.' (I would add, 'or to which he thought bona file he was legally entitled.') In Queen v. Kishen Pershad 2 N.W.P.H.C.R. 202 it was held that the prosecution, in order to establish that a title has been asserted with a fraudulent or dishonest intent, must show that the accused had no reasonable ground for asserting the title. The conviction for forgery of the accused was set aside in that case on the ground that the prosecution had not proved such intent. In Guddappa, In re 1 Weir 542 it was held that the making of a document untrue in certain particulars is not forgery, if it is not shown that it was made fraudulently or dishonestly and that mere intention to deceive is not sufficient. A similar view was held in Queen-Empress v. Sheo Dayal 7 A. 459. A.W.N (1885) 85 : 4 Ind. Dec. 720 with reference to receipts manufactured to support actual payments.
7. I shall now deal with the third contention. It is clear that no legal right or liability can at all be based upon Exhibit B, (a) either in its unaltered state before the additions in dispute were made; or (o) in its altered state after the additions in dispute. In R. v. Turpin 2 Car & K. 820 Baron Platt says: 'I think that this prosecution must fail. Until the signatures of a majority of the Parish Officers were attached to this cheque, it was an incomplete instrument and the altering it' (as regards the amount) when incomplete, is, therefore, no forgery. The prisoner must be 'acquitted.' The oases in Siwsami Chetti v. Sevugan Chetti 25 M. 889 : 12 M.L.J. 17, Amirtham Pillai v. Nanjah Gounden 23 Ind. Cas. 464 : 26 M.H.J. 257 : 15 M.L.T. 205 : (1914) M.W.N. 250 : 1 L.W. 243, and hethiri Menon v. Gopalan Nair 80 Ind. Cas. 713 : 2 L.W. 714. 29 M.L.J. 291, (1915) M.W.N. 586, 18 M.L.T. 220, 39 M. 597, and the evidence on the side of the prosecution itself which I have already set out show that neither in its altered state nor in its unaltered state could any legal right or liability be created or be purported to be created under this document, because it is not signed by three of the five intended executants, nor does it purport to be signed by them. And as Halsbury, Volume 9, paragraph 1417, puts it, 'if an instrument, had it been genuine, would have been effectual in the ordinary course of business between the parties...no defect being...on the face of it, such instrument may-be the subject-matter of a forgery, although the instrument itself, if genuine, would have been void in law for want of compliance with some statutory direction....An instrument which after making or alteration still remains incomplete cannot be an order. An ineffectual addition to a document which already constitutes a complete order is not forgery, but where the document is so far incomplete that a signature is required as a conditions of payment the false making of such signature is forgery.' An incomplete document cannot be a valuable security or a document which is or purports to be a document by which any legal right is created or affected. See illustration to Section 30 of the Indian Penal Code. A document incomplete on its face neither is, nor purports to be, a document creating or affecting rights. If the accused had obtained or forged the additional signatures required to convert the document into a complete agreement on its face, he might be convicted of forgery if my view on the second point is erroneous. Even if he intended to obtain the signatures of his father and brothers to the altered document without obtaining prosecution 2nd witness's authorization or ratification of the alterations, the mater would not have passed beyond the stage of preparation for committing an offence.
8. In the result, I would, agreeing with the two Assessors in the lower Court, find the accused not guilty,' reverse the conviction and order him to be set at liberty. [As regards the question of sentence mentioned by the appellant's Vakil at. the end of his arguments, I think that even if the accused's conviction is sustainable, having regard to the whole circumstances of this case arising out of a family dispute and to the fact that this Criminal case has been hanging over the head of the accused from February 1913 (see Exhibit E printed separately) that is, for nearly 43/4years, I should think that a sentence of four years is excessive and that one year's rigorous imprisonment would be an adequate punishment].
9. On the evidence, I agree with the learned Sessions Judge that the additions and interpolations in Exhibit B were made by accused after the document had been signed by him and prosecution 2nd witness. There seems to be no ground for rejecting the evidence of prosecution 1st witness, as he appears to be a disinterested witness. He is supported by prosecution witnesses Nos. 2 and 3, who, no doubt, are now on bad terms with accused, but at the time of the agreement Exhibit B prosecution 2nd witness was clearly not ill disposed towards accused, or he would not have agreed to re-convey the lands for a low price. Prosecution witnesses Nos. 4 and 5 who attested the document support the prosecution, and the prosecution 5th witness's contradiction of the evidence of prosecution witnesses Nos. 1 and 2 as to whether there was a discussion about jewels and vessels when the parties were negotiating, is not really material. Defence 5th witness was admittedly present when Exhibit B was written and he supports accused, but he does not appear to be a reliable witness. Accused says he showed Exhibit B to a Vakil (vide Exhibit G) but this Vakil has not been examined, although his evidence would be invaluable.
10. It is next contended that the alteration of the document does not amount to making a false document within the meaning of Section 464: (1) because it was not made dishonestly or fraudulently, and (2) because the document Exhibit B being incomplete for want of the signatures of accused's father and brothers, it cannot be said to be a false document. In support of the 2nd proposition we have been referred to R. v. Turpin 2 Car & K. 820, but I can see no advantage to be gained from consulting this old English case (which is very briefly reported) when we have to interpret an Indian Statute of a much later date. Similarly the many Civil cases cited to show that Exhibit B is not a valid document, are quite useless in determining whether it is forged. The contention, that the word 'make' in Section 464 is used in the first sentence in its ordinary sense, but must subsequently be read in the technical meaning denoted in ' making 'a promissory note, must, be rejected. It has nothing to support it and even in the expression maker of a promissory note 'there is no technical meaning; for the technical term for the maker is the 'drawer.'
11. Under the second clause of Section 464 of the Indian Penal Code, a person is said to make a false document who without lawful authority dishonestly or fraudulently by cancellation or otherwise alters a document in any material part thereof after it has been made or executed either by himself or by any other person. There is nothing in the section which requires that the document so altered shall be legally effective and valid in order that an alteration should, in the circumstances set out, constitute the offence of making a false document. In the present case, not only had the document been made, but it had also been executed by prosecution 2nd witness and accused. So far as the former is concerned the document would be binding upon him when completed, and consequently his execution of it was complete.
12. As regards the first contention it is argued that the alterations in the document are not dishonest or fraudulent. The alterations relate to two points:
(1) The question of right to possession of the lands agreed to be sold, and
(2) The possession by prosecution 2nd witness of certain jewels and vessels alleged to belong to accused and his father.
13. Inasmuch as the lands in question were bought with funds belonging to prosecution 2nd witness and as in the prior agreement, Exhibit III, there is no reference to accused's right to possession of the lands, I think it is obvious that accused's claim is not bona fide for there is other evidence to show that his claim is untrue. Similarly prosecution 2nd witness denies possession of the jewels and vessels, and there is no evidence to prove his possession. The interpolation of a provision for their return by prosecution 2nd witness is clearly dishonest. Even if accused had a bona fide claim to the lands and the moveable, I think the interpolations in the document would be fraudulent for he intended by unfair means to obtain a document containing an admission in his favour by prosecution 2nd witness and this would come within the definition of 'defraud' in Section 25 of the Indian Penal Code.
14. It is then contended that Exhibit B is not a valuable security, because it is invalid until the execution by accused's father and brothers is complete. Under Section 467 of the Indian Penal Code the document must purport to be a valuable security and its' validity or otherwise in law is not relevant. Exhibit B certainly purports to be a valuable security within the meaning of the section, and, therefore, the offence is complete, and I would confirm the conviction,
15. As my learned brother is of opinion that the accused should be acquitted it is useless for me to express any opinion as to what the sentence should be, although I may say that four years' rigorous imprisonment seems to me, in the circumstances, to be somewhat severe.
16. This appeal coming on for hearing under Section 429 of the Code of Criminal Procedure on the 26th and 30th of October 1917, having been posted to be spoken to on the 7th of November 1917 and having stood over for consideration till this day, the Court (Oldfield, J.) delivered the following
17. The accused has been convicted of an offence punishable under Sections 467 and 464 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 2nd 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 eye to dissent from this conclusum. 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; (3) whether the sentence is excessive.
18. One contention on the first of these questions, that accused made the alterations, intending to get 2nd 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 ease, to which he adhered before me, that the alterations were made before 2nd 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 Husain 7 A. 403 : A.W.N. (1885) 84 : 4 Ind. Dec. 720, Queen-Empress v. Sheo Dayal 1885 459. A.W.N 85 : 4 Ind. Dec. (N.S.) 720, Queen v. Kishen Pershad 2 N.W.P.H.C.R. 202 and Manika Asari v. Emperor 28 Ind. Cas. 102 : 16 Cri. L.J. 246. 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.
19. In 1908 accused was in difficulties and sent his wife to the house of 2nd prosecution witness, his father-in-law, with his jewels and vessels and allowed his land to be sold in Court auction and to be purchased, it is not disputed, by a lenamidar for 2nd prosecution witness. Both learned Judges agree (and I see no reason for differing from them) that this purchase was not benami for accused or his family. Accused's difficulties continued and his wife remained with 2nd prosecution witness until her death in 1910 and the land continued in the latter's ownership, although he and accused quarreled and there were Criminal and possession proceedings (Exhibit J) in 1910, 1911 and in 1912, very shortly before the incidents to be considered (1st and 3rd defence witnesses.) In the last mentioned year, however, negotiations began for the restoration of the land to accused's family in consideration of a payment of the expenses incurred by 2nd prosecution witness with interest; and this project materialised, firstly, in Exhibit III, and next, Exhibit III failing, in Exhibit B, which as originally executed by 2nd prosecution witness and accused, was an agreement for the sale of the land by the former for Rs. 12,250 to accused, his father and brothers, the two documents differing only in the omission of provision for accused's mother from the latter and the addition in it to the consideration of the interest, which would accrue in the interval between them. The alterations in Exhibit B, with which we are concerned, consist in additions, (1) implying that present enjoyment of the land was with accused, (2) providing for a few and distinct matter, the return of the jewels and vessels, which were with 2nd prosecution witness. What then is the evidence as to each of these points and accused's good faith in respect of it As regards the land there is no doubt the evidence of one credible witness, who intervened in the dispute, that, as he understood from 2nd prosecution witness, enjoyment was with and profits were received by accused. But it is merely indirect and may easily rest on misunderstanding; and it cannot fill the place of what accused requires, proof of the fact or of reasonable ground for belief in it, on which he was entitled to act. On the other hand the finding against 2nd proseoution witness's holding benmai for accused or his family negatives the latter's possession and the good faith of accused's belief in it at its origin; and for the prosecution there is evidence consistent with probability that accused was merely managing the property, whilst be lived in 2nd prosecution witness's house. As regards the moveables there is some evidence that they came to 2nd prosecution witness's house with accused's wife in 1907. But it justifies no presumption that they remained there until 1912, either as regards the jewels, which accused might naturally have demanded after his wife's death in 1910, or the vessels, which very likely would be worn out. The only evidence that the 2nd prosecution witness admitted possession of these moveables is given by 5th defence witness and is worthless, since he also supported the existence of a reference to them in Exhibit B, as originally drafted. There is further the absence of reference to them in Exhibit III. In these circumstances accused has not shown that the interpolated recital as to possession of the immoveables or the provision regarding the moveables rested or was in good faith believed by him to rest on any legitimate basis.
20. This conclusion goes some way towards justifying a finding that accused's intention was dishonest or fraudulent; and in fact argument against one has been based mainly on 2nd prosecution witness's statement that he could not say how the insertion of these additions in Exhibit B injured him and that his only objection to them was that he had not agreed to them. But this seems to me merely an expression of his unwillingness to specify what was essentially contingent and uncertain. For he was clear in asserting his possession of the land and in denying Lis liability for the moveables. The case as to intention is, however, different as regards each class of property. The evidence of 5th and 10th defence witnesses indicates that the alterations relating to moveables were made, primarily at least, because accused's father insisted on their insertion; and they were fraudulent, because the intention was to obtain his signature on the pretence that 2nd prosecution witness had agreed to them, quite apart from any ulterior dishonest intention to use them in support of a claim against the latter. As regards the addition relating to possession of the land there is no evidence that accused's family were interested in it. But the conclusion reached that it was not and was not believed by accused to be in accordance with fact, the explanation, to which the defence has suggested no alternative, must be adopted that he was creating an admission, purporting to be by 2nd prosecution witness, for use in possible future legal proceedings. This explanation is not excluded by the fact that accused was at the time promoting the arrangement embodied in Exhibit B. For that arrangement might fail owing to failure to find the necessary money or accused, whom his father treated as untrustworthy, might abandon it and revive the claim, to which he adhered at the trial, that 2nd prosecution witness's holding of the land As merely benami. It is only consistent with accused's previous and recent resort to possession proceedings that he should create evidence in order to deprive 2nd prosecution witness of possession in the future. In these circumstances I find that the additions to Exhibit B were made fraudulently and dishonestly.
21. 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 sighed 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 2nd prosecution witness; and, therefore, its character as a 'document' is the only further matter to be established. Certainly it fulfils 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 2nd 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. Rut, 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.
22. 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. Ch. 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 2 Leach C.C. 775 : 2 East P.C. 963] 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, Queen v. Thomas 2 M.C.C. 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, R. v. Harper (1881) 7 Q.B.D. 78 : 50 L.J.M.C. 90 : 44 L.T. 615 : 29 W.R 743 : 14 Cox C.C. 574, and accordingly it is only in connection 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 Aiyar, 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.
23. 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 (9 Volume, 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 connection with it show that the defect contemplated is not one, which the accused could have made good. Vide, R. v. Donnelly 1 M.C.C. 438 and R. v. Moffatt 1 Leach 431 : 2 East P.C. 954. 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. Bushworth B. & B. 317 : 1 Stark. 396, the case referred to in the foot note, R. v. Pateman R. & R. 455 and R. v. Burke R. & R. 496 show, they are meant to cover instruments which have not and never could acquire the form of any specified in the Statute.
24. Secondly, as regards R. v. Turpin 2 Car & K. 820 I fully appreciate the reluctance of Phillips , J., to interpret our Cede with reference to the brief report of a single remote English authority; but 1 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 given by the learned Editor of Russell on Crimes (7th Edition, Volume II, 1634). And R. v. Kirkwood 1 M.C.C. 304 and R. v. Dade 1 M.C.C. 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 R. & R. 446, 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 3 Cox C.C. 80, a case resembling R. v. Turpin 2 Car & K. 820, except that forged signatures, not alterations, were in question, the fact that thee 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 R. v. Bingley R. & R. 446, R. v. Kirkwood 1 M.C.C. 304 and R. v. Dade 1 M.C.C. 307 and it is sufficient to adopt what may, it would appear, have been the principle underlying R. v. Lee 3 Cox C.C. 80 and R. v. Harper (1881) 7 Q.B.D. 78 : 50 L.J.M.C. 90 : 44 L.T. 615 : 29 W.R 743 : 14 Cox C.C. 574 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.
25. To apply these observations to the present case, Exhibit B, as it stood after signature by prosecution 2nd 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 2nd witness promised to convey on receiving the payment and on the vendee's executing the agreement. Exhibit B, therefore, imposed an obligation on prosecution 2nd 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 2nd 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 2nd 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.
26. 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 2nd 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 4th witness that prosecution 2nd 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 2nd 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 signatures of all five per-ions mentioned in it. Bat those statements did not necessarily mean that without them it would not be legally enforceable against prosecution 2nd witness or more than that it was in fact accused intention to obtain them. In fact prosecution 2nd 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 2nd 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. la 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.
27. 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.