J.P. Mitter, J.
1. This is an application for revision of an order of conviction under Section 467, Penai Code. The petitioner was tried by a learned Judge, sitting' with a jury, upon a charge of forgery under the following circumstances: The Complainant Brahmamoyee Dasi, an old lady of about 80, is a resident of Contai. In addition to her homestead, she had 12 bighas and 15 cottas of land scattered over several 'mouzas'. One Pramatha Nath Banerjee was the lady's landlord in respect of her homestead. The landlord brought a suit for ejectment against her. The petitioner looked after that suit on the lady's behalf. In Kartick 1356 B. S. he suggested to the lady that she should execute an 'Ammukhtearnamah' in his favour, so that he could take necessary steps in connection with her defence in the said suit. The lady agreed, whereupon on or about 29th Falgun 1356 B. S., corresponding to 13-3-1950, the petitioner, who was then accompanied by three others, obtained the lady's thumb impression on a blank stamp paper as well as on a few blank cartridge papers, on the representation that the papers would be utilised for the purpose of a Power of Attorney. The petitioner took the papers away and thereafter they were caused to be written up as a 'kobala', purporting to convey certain of the lady's lands to Panchanan for a consideration. Later on the same day, the petitioner took the lady to the office of the Sub-Registrar. There the document was presented for registration and was duly registered. Two months later, the lady discovered that a fraud had been practised upon her. Upon enquiry she discovered that she had in fact registered a 'kobala', whereas her intention was to execute and register a Power of Attorney only. Thereafter a complaint was lodged not only against the petitioner but also against other persons, including one Prafulla Kumar Das who admittedly was the scribe of the document.
2. The petitioner along with Prafulla was twice tried. His first conviction upon a charge of forgery was set aside by this Court, with a direction for his retrial. At the first trial he was sentenced to six years' rigorous imprisonment. On his second trial the petitioner was again convicted of forgery. This time he was sentenced to four years' rigorous imprisonment. The present application arises out of his conviction at the second trial. The other accused persons who were originally tried with him as well as Prafulla who was the petitioner's co-accused at the last trial were acquitted.
3. The alleged forgery is said to have taken place on or about 13-3-1950. Three years have thus elapsed since the alleged offence was committed.
4. The first point taken by Mr. Sambhu Nath Banerjee, appearing on behalf of the petitioner, is that even assuming the prosecution case to be true, no offence of forgery within the meaning of the first clsuse of Section 484, Penal Code could have been committed by the petitioner. Although the learned Judge pointed out to the jury that the forgery charged was one under the first clause of Section 464, he failed to direct the jury as to the meaning of 'making a false document' under the first clause of the section. Mr. Baneriee accordingly contends that in the absence of any evidence to bring the case within the third clause of Section 464 as well as in the absence of any direction as to the meaning of 'making a false docur ment' under the first clause, the jury's verdict, was manifestly erroneous. In our view, Mr. Banerjee's contention is sound. Forgery is defined in Section 463 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.'
Section 464 is as follows :
'A person is said to make a false document First 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; or
Secondly 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, whether such person be living or dead at the time of such-alteration; or
Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does-not know the contents of the document or the nature of the alteration.'
It appears to us that a person to be guilty of forgery under the first clause of Section 464 must make a false document or part of a false document and not merely cause it to be made. As was held in -- 'Haidar Ali Pradhania v. Emperor', 17 Cal W. N. 354 (A), a charge of forgery could not lie against a person who was not the writer of the forged document or who did not sign the forged, name. Making a false document is one thing and causing a false document to be made is ano-ther. It may well be that the petitioner in this, case abetted the making of a false document. Mr. Banerjee on behalf of the petitioner also relies upon the early Calcutta Case -- 'The Empress v. Riasat Ali', 7 Cal 352 (B), which was followed in a recent case of this Court -- 'Pramatha Nath v. The State', : AIR1951Cal581 (C).
5. Had there been proper evidence to bring the case within the third clause of Section 464, the matter would have been different. It is clear that on the facts proved by the prosecution, the petitioner could not be said to have been guilty of making a false document within the meaning of the first clause of Section 484. The learned Judge's failure to explain to the jury the meaning of 'making a false document' under the first clause of the section was a non-direction amounting to a serious misdirection, which induced an erroneous verdict. In that view of the matter, the verdict of the jury and the conviction and the sentence which followed must be set aside.
6. Mr. Banerjee took several other points, but it is not necessary to deal with them, as we have, after considerable hesitation, decided to acquit the petitioner and not to order a retrial. We have gone through the evidence and are of the view that the petitioner having already been through the ordeal of two Sessions trials must be acquitted. The complainant, if so advised, can have recourse to the Civil Court for the purpose of having the deed cancelled.
7. In the foregoing circumstances, we set aside the verdict of the jury and the conviction and the sentence which followed and acquit the petitioner. The petitioner need not surrender to his bail bond from which he is discharged. This Rule is made absolute.
8. I agree.