1. We are unanimously of opinion in this case that the conviction must be upheld. But as the point is of importance, we will reduce our judgment into writing.
Maclean, C.J., O'Kinealy, Macpherson, Trevelyan and Jenkins, JJ.
2. The accused in this case was tried before Mr. Justice JENKINS and a common jury on a charge of having fraudulently or dishonestly used as genuine a certain forged document, to wit. a document purporting to be a certificate of competency as an Engine-room First Tindal and purporting to be signed by one H. Abern, Chief Engineer of the Steam Launch Nicol, and being a forged document, knowing or having reason to believe the same to be a forged document, and that thereby he committed an offence punishable under Sections 465 and 471 of the Indian Penal Code.
3. The certificate in question purported to be a testimonial of service and good character.
4. It seems that in accordance with the provisions of Act VII of 1884 and the regulations issued under that Act, examinations are from time to time held in Calcutta of those who desire to obtain certificates of competency as engine drivers of ocean-going steamers. As a condition precedent to his qualification for any such examination each candidate has to produce to an appointed officer a certificate or testimonial of his having served as principal or first serang or tindal in the engine-room of a steamer for the prescribed period, and this certificate has to be signed by a certificated engineer under whom he has served.
5. On the production of the required certificate or testimonial a form of application is filled up, and then signed by the candidate in the presence of the Port Officer; thereupon the candidate is entitled to present himself for examination.
6. On the 14th of August 1886 the accused produced the certificate mentioned in the charge to Dinonath Mukerji, the officer deputed to receive and examine candidates' certificates.
7. It is established by the evidence that this was done by the accused for the purpose of having the requisite application for examination filled up and of qualifying himself as a candidate for the examination of engine-drivers under Act VII of 1884, and further that the accused used the certificate as genuine, though he knew that it was a document made with the intention of causing it to be believed that it was made by a person by whom it was not made, and with the further intention that it should be used in the manner in which it was in fact used by the accused.
8. It also appears that the use to which the certificate was put by the accused was an essential and necessary condition of the success of his scheme.
9. A verdict of guilty was returned in accordance with the ruling of the Judge, who, however, reserved and referred for our decision the question whether, having regard to the decision in Queen-Empress v Haradhan, (1892) L L. R., 19 Cal. 380, his ruling and the conviction could be upheld.
10. The Queen-Empress v. Haradhan has been dissented from in Queen-Empress v. Shoshi Bhushan (1893) L L. R. 15 All 210 and the point reserved has no doubt been the subject of conflicting decisions.
11. It will, however, serve no useful purpose to enter into a minute examination of the several authorities to which we have been referred: the law is contained in the Code, and whether the conviction now under consideration is sanctioned by its provisions is best to be determined by an examination of the Code itself.
12. Now Section 471 of the Indian Penal Code is in the following terms: 'Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.'
13. It will be seen that the essential elements of the offence are (1) that the document in question should be a forged document, (2) that the accused should have used it as genuine, and (3) that he should have so used it fraudulently or dishonestly, knowing or having reason to believe that it was a forged document.
14. A forged document is a false document made wholly or in part by forgery (Section 470), and we learn the meaning of a false document from Section 464 which (omitting the portions immaterial to the present purpose) provides, that a person is said to make a false document who dishonestly or fraudulently makes a document with the intention of causing it to be believed that such document was made by a person by whom he knows it was not made. Forgery is in turn defined by Section 463, which is in the following terms: 'Whoever makes any false document or part of a document with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.'
15. This referential definition of a forged document is to a certain extent tautologous, but be that as it may, it is clear that the person against whom the offence is charged must have acted dishonestly or fraudulently, and the sole question in the present case is whether that can be predicated of the accused Abbas Ali.
'Dishonestly ' is defined by Section 24, which provides that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly; and the meaning of the expression wrongful gain and wrongful loss is made clear by Section 23. 'Fraudulently ' is defined by Section 25 in the following words:A person is said to do a thing fraudulently if he does that thing with intent to defraud, but not otherwise.' As a definition this provision is obviously imperfect, and perhaps introduces an element of doubt, which did not previously exist; for it leaves it to be determined, and that really is the point on which the present case turns, whether the word ' defraud ' as used in Section 25 implies the deprivation or intended deprivation of property as a part or result of the fraud. The word defraud is of double meaning in the sense that it either may or may not imply deprivation, and as it is not defined in the Code and is not, so far as we are aware, to be found in the Code except in Section 25, its meaning must be sought by a consideration of the context in which the word fraudulently is found.
16. The word 'fraudulently' is used in Sections 471 and 464 together with the word 'dishonestly' and presumably in a sense not covered by the latter word. If, however, it be held that fraudulently implies deprivation either actual or intended, then apparently that word would perform no function which would not have been fully discharged by the word dishonestly and its use would be mere surplusage. So far as such a consideration carries any weight, it obviously inclines in favour of the view that the word 'fraudulently' should not be confined to transactions of which deprivation of property forms a part.
17. There appears to us, however, to be a still more potent reason based on the language of Section 463 for arriving at this conclusion.
18. Section 463 defines the offence of forgery, and in so doing prescribes the intents necessary to that offence. The words of the Section are as follows: 'Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery.'
19. The Section contemplates two classes of intents, and it is clear (especially if regard be had to the context) that it is not an essential quality of the fraud mentioned in the Section that it should result in or aim at the deprivation of property. If this be so, it cannot be supposed that the definition of a false document, which is but a part of the definition of forgery, requires as a condition of criminality an intent different in its quality and its aims from that prescribed by Section 463.
20. It appears to us, therefore, that deprivation, actual or intended, is not a necessary ingredient of the intent to defraud referentially imported into Section 464, and by a similar train of reasoning we are led to the like conclusion as to the true construction of Section 471.
21. Though we are in no way bound by the decisions of the English Courts, still we are fortified in the view we take of the expression 'intent to defraud' by the decision in Reg v. Toshack (1849) 4 Cox C.C. 38: 1 Den. C. C. 492. We therefore hold, so far as the question reserved and referred for our decision is concerned, that the accused Abbas Ali was rightly convicted of the offence with which he was charged.