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In a judgment rendered yesterday, a Supreme Court Bench of Justices NV Ramana and Abdul Nazeer emphasised that an offence of forgery cannot be made out unless the accused himself has made the forged document.
The peculiar facts of this case were such that the accused did not forge the fraudulent document themselves but had almost become beneficiaries by using the same.
In 1998, a criminal complaint was lodged by one, Doris Victor against the two accused, R Jawaharaj and Rajapandi for having used a fake Power of Attorney (PoA) to create a mortgage in Rajapandi’s favour. The fake PoA, which named Jawaharaj as Doris’ agent was alleged to have been created with the aid of another person who impersonated Doris.
Witnesses in the case attested that an imposter claiming to be Doris Victor signed the document to create the false PoA, before it was registered. A month thereafter, the two accused used the same PoA to create a mortgage in Rajapandi’s favour, securing an amount of Rs 50, 000.
Both accused were found guilty by the judicial magistrate, and their conviction was upheld by the Sessions Court. However, after the accused filed a revision petition, the Madurai Bench of the Madras High Court set aside the conviction.
The High Court found that the essential ingredient of “making of a false document” was not proved to attract punishment for offences pertaining to forgery. An appeal was made against this verdict by the complainant’s daughter. The complainant passed away after she made the complaint.
Supreme Court Judgment
In the appeal before the Supreme Court, the appellant submitted that the High Court was wrong to acquit the accused on the sole basis that their signatures are not found on the forged document (PoA).
Disagreeing with this submission however, the Supreme Court held,
“Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same.”
The Court based this finding on the premise that there was a difference between making a document and causing it to be made. In this regard, the Court referred to a number of precedents including Dickins v. Gill, Md Ibrahim and Ors. v. State of Bihar and Mir Nagvi Askari v. Central Bureau of Investigation.
Referring to Sections 463 and 464 of the IPC, the Court was of the view that for constituting the offence of forgery, it is imperative that a false document is made and the accused person is the maker of the same.
Section 463 defines the offence of forgery. The Court focused primarily on the fact that this provision attributes forgery to whoever makes any false documents (or part thereof) fraudulently.
Applying this provision in the strictest terms, the Court found that in this case, there was nothing to prove that either of the accused were makers of the forged document. Therefore, they could not be held liable for forgery.
Rather, the Court found that culpability ought to have been fixed on the imposter who is alleged to have made the false document.
“It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused.”
As far as the culpability of the accused were concerned, the Court found that the investigation had not established any link between the imposter and the accused. In such circumstances, the benefit of doubt was also in favour of the accused. The Court also emphasised that a penal statute cannot be expanded by using implications.
Therefore, the Court held that the High Court had rightly acquitted the accused based on the settled legal position.
Before parting with the case, it was noted that the appellant was not entirely remediless. The common law remedy of instituting a suit challenging the mortgage deed could be invoked. The Court was informed that, accordingly, a civil court had already cancelled the mortgage and returned the appellant’s property.
With these observations, the Court upheld the acquittal of the accused and dismissed the appeal.