Making Of Fake Document Is Different Than Causing It To Be Made; Only Maker Can Be Charged With Forgery: SC [Read Judgment]

It is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery, the bench said.

Observing that making of a false document is different than causing it to be made, the Supreme Court, in Sheila Sebastian Vs. R. Jawaharaj, has held that a charge of forgery cannot be imposed on a person who is not the maker of the same.

The complainant, in this case, had alleged that accused no. 1, with the aid of an imposter who by impersonating as Mrs. Doris Victor, created a power of attorney document in his name as if he was her agent. Though the trial court and first appellate court convicted the accused, the high court acquitted them holding that to get attracted the offence of forgery, “making of a false document” is essential.

Assailing this high court judgment before the apex court, it was contended that anyone who makes a false document is guilty of forgery and in this case the accused created the forged power of attorney with the sole intention of grabbing the property belonging to one Mrs. Doris Victor.

Referring to Sections 463-465 of Indian Penal Code, a bench of Justice NV Ramana and Justice S. Abdul Nazeer observed that unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.

The bench, further elaborating the scope of these provisions, said: “The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.”

The court also referred to various case laws and observed that a charge of forgery cannot be imposed on a person who is not the maker of the same and that making of a document is different than causing it to be made. “It is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. The definition of “false document” is a part of the definition of “forgery”. Both must be read together. ‘Forgery’ and ‘Fraud’ are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts,” the bench said.

The court also said there is no finding recorded by the trial court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that ‘false document’.

If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal

The bench further observed that it is the imposter who can be said to have made the false document by committing forgery in this case. “This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the accused, still the accused could not be convicted. The latches in the lopsided investigation goes to the root of the matter and fatal to the case of prosecution. If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal. In the process, the common man will lose confidence on the criminal justice delivery system, which is not a good symptom. It is the duty of the investigation, prosecution as well as the Courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice,” the bench added.

The court added that although it acknowledges the complainant’s plight who has suffered due to alleged acts of forgery, but it cannot convict the accused because penal statute cannot be expanded by using implications.