Banerjee and Sale, JJ.
1. The appellant in this case has been convicted by the Sessions Judge of Jessore of offences punishable under Sections 408, 467 and 471 of the Indian Penal Code, and has been sentenced to two years' rigorous imprisonment under Section 408, and to a further term of two years' rigorous imprisonment under Section 471.
2. It is contended by the learned Counsel for the appellant that, as regards the charge under Section 408, there having been no direction to the appellant as to the way in which he was to apply the money that had been remitted to him, and the account between the appellant and his employer being, according to the practice prevailing, adjustable at the end of the year, and it being further in evidence that it was not known whether at the date of the alleged breach of trust the appellant was indebted to his employer, or the reverse, the conviction is not sustainable. As regards the charge under Section 467, the contention is, that there is no evidence to prove the forgery, and further that, as the alleged forgery was committed, not with the intention of causing any wrongful gain or wrongful loss, or of defrauding any one, but with the intention of screening the past guilt of the accused, it would not come within the definition of forgery in Section 463 of the Indian Penal Code. And, lastly, as to the conviction under Section 471, it is contended that there is no evidence that the accused used the documents in question, nor any that he knew them to be false.
3. As to the first contention, that is, the one with reference to the conviction under Section 408 we have had such portions of the evidence as bear upon this part of the case placed before us by the learned Counsel for the appellant and heard them commented upon. Though there were no express instructions to the accused as to how be was to appropriate the money that was sent to him, yet bearing in mind the close proximity of the date of the remittance to the last day for the payment of the March instalment of Government revenue, and seeing that the challans, as; altered, which were sent by the appellant to his employer, and which in their altered state showed the amounts that were really payable as revenue, covered very nearly the whole amount remitted, we think it but reasonable to infer that the accused was aware of the implied purpose for which the money had been sent. And as he deposited in the Collectorate a very much smaller amount than that which was remitted,, and which he was to have deposited, and tried to pass off the falsely altered challans as genuine, we think that there was a dishonest misappropriation of the difference between the amount actually deposited and that shown by the false challans to have been deposited, sufficient to constitute the offence of which he has been convicted. It is not, as if, instead of appropriating the money to one purpose, he had appropriated it to another, pending the adjustment of accounts between himself and his employer. He had done completely all that was necessary to show that the amount had been duly appropriated to his employer's use by forwarding the altered challans, and falsely showing a deposit by him of the larger amount.
4. As to the charge under Section 467, it is contended that the evidence as to handwriting is not sufficient to show that the accused had committed the forgery himself, that is, with his own hand. No doubt the evidence is not sufficient to show that the forgery had been committed by the accused himself. It is not shown that the alterations in the challans, which constitute the forgery, are, like the remainder of their contents, also in the handwriting of the accused; but taking all the circumstances of the case, the receipt of the money by the accused, the deposit by him of the smaller amount and the sending of the challans to the employer, showing a deposit of the larger amount, accompanied by a post-card, and a letter proved to be in his handwriting, advising the despatch of the challans to the employer, it is quite clear that, if the accused did not commit the forgery himself, he must have been an abettor in the commission of it.
5. We must here consider the argument of the learned Counsel that even if, as a matter of fact, the charge of making these alterations in the challans had been brought home to the accused, still, as a matter of law, the conviction cannot stand, as the alterations were made, not with the intention of committing a fraud or dishonesty in future, but with the intention of concealing past acts of fraud and dishonesty. In support of the contention two cases were cited, one, that of Empress of India v. Jiwanand I.L.R. 5 All. 221, and the other, that of Queen-Empress v. Girdhari Lal I.L.R. 8 All. 653.
6. With all respect for the learned Judges who decided those cases, we are not prepared to accept the rule of law laid down by them, that it would not amount to forgery under the Indian Penal Code, if the intention with which a false document was made was to conceal a fraud which had been previously committed. If the intention with which a false document was made was to conceal a fraudulent or dishonest act which had been previously committed, we fail to see how that intention could be other than an intention to commit fraud; and if the intention was to commit fraud, the making of a false document with that intention will come within. the definition of forgery in Section 463 of the Indian Penal Code. Nor does Section 464 stand in the way of the view we have taken; for though to constitute forgery a person must make a false document,, as defined in Section 464, a person makes a false document 'who dishonestly or fraudulently makes, signs, seals or executes a document, or a part of a document, etc.,' so that, if there is either dishonesty or fraud in the making or altering of a document falsely, the case would come under Section 464.
7. We are asked to hold that 'fraudulently' here means the same thing as 'dishonestly'; and that if the intention was not to cause any wrongful gain or any wrongful loss in future, but merely to screen a past offence of the offender, or, in other words, if this dishonesty, that is, the causing of wrongful gain or wrongful loss, was a thing of the past at the date when the false document was made, the case would not come under Section 464. But quite apart from the question, whether, even though the wrongful gain or wrongful loss may be a thing of the past at the date of the making of a false document, the making of the same should not yet be regarded as dishonest, we think the word 'fraudulently' must mean something different from 'dishonestly.' It must be taken to mean as denned in Section 25 of the Penal Code 'with intent to defraud,' and this was the view taken by the Bombay High Court in the case of Queen-Empress v. Vithal Narain Joshi I.L.R. 13 Bom. 515 (note). We are of opinion, therefore, that the forgery in this case, for the abetment of which alone, upon the evidence adduced, it would be safe to convict the appellant, was sufficiently constituted by the alterations in the challans. The view that the making of a false document under circumstances, such as those under which the false challans in this case were made, does amount to forgery, is fully supported by the decision of the Madras High Court in the case of Queen-Empress v. Sabapati I.L.R. 11 Mad. 411.
8. As to the conviction under Section 471 we have been asked to hold that there is no evidence that the appellant used the false document, and that there is no evidence of his guilty knowledge. From what we have already said, it is clear that he must have had guilty knowledge. For the money came to him, he acknowledged receipt of it in the post-card which he sent, he deposited a much smaller amount as shown by the challans he wrote and filed in the Collectorate, and then he sent the falsely altered duplicate challans to his employer. The letter written by him, which followed the post-card, clearly shows that he used the challans. It was contended that the evidence to show that the post-card and the letter were in the handwriting of the accused is extremely meagre. We do not think that there is much force in this contention. There is the employer of the appellant, Jadu Nath Roy Chowdhry, there is his dewan, Rajoni Kanta Ghose, and there is also an Amla of the Collectorate, Tarini Charan Das Gupta, who say that the post-card and the letter are in the hand-writing of the accused. All of them do not say that they have seen the accused write, but they say that in the course of business they have seen his handwriting; and viewing the matter in the way in which such matters ought to be viewed by reasonable men, we do not think it would be right to hold that this evidence does not prove that the post-card and the letter were in the handwriting of the accused. We think that the evidence adduced in this case proves beyond all reasonable doubt that the accused used the false challans; and used them with guilty knowledge. He has made no defence, he has simply said in his examination that he is not guilty. It is suggested by the learned Counsel for the appellant that, possibly, if any offence has been committed, it might have been committed by the son of the accused, who is deposed to by one of the witnesses for the prosecution as being a young man of bad character, and who sometimes goes to the Treasury, and if that was so, the accused could not have made out his defence, as circumstances that might go to exculpate him, would go to incriminate his son.
9. This is a bare supposition. No sufficient foundation has been laid in fact for any reasonable inference, or even suspicion, that the forgery of the documents which passed through the hands of the accused might have been the doing of his son without his knowledge. To give effect to such a conjecture would not be following the sound rule which requires us to give the accused the benefit of a reasonable doubt, but would be allowing speculation to take the place of evidence.
10. For all these reasons, we think that the conviction with the sole modification that we have indicated above, with regard to the charge of forgery, must stand. With regard to the question of sentence, we think that as the offences of criminal breach of trust, forgery, and using as genuine a forged document, are in this case intimately connected with one another, and form parts of one connected transaction, it will be sufficient for the ends of justice if we confirm the sentence of two years' rigorous imprisonment for the offence of criminal breach of trust, and reduce the sentence for the offence under Section 471 to rigorous imprisonment for one year.
11. It remains now to say one word with reference to the remarks of the learned Judge on the conduct of the assessors in this case. The learned Judge observes in his judgment in two places that the assessors have not given their honest opinion in this case. We do not think that this remark was warranted by the mere fact of the assessors having been of opinion that the accused was innocent. That opinion, no doubt, was an erroneous one. The assessors were certainly wrong in their judgment when they said that the guilt of the accused had not been made out. But between error of judgment, however gross, and moral obliquity, the difference is wide, and 1 Judge must have very strong reasons before he can be justified in making remarks impugning the moral character of persons associated with him in the trial of cases. We think it due to the gentlemen who acted as assessors in this case that we should say that much as we condemn their judgment, we see no reason to condemn their character for honesty.