Alagirisamy vs Uthiram Pillai and Krishnan

Padmini Jesudurai, J.—The above appeal by the complainant, in a private complaint tried as C.C. No. 123 of 1983 by the Judicial First Class Magistrate No. 1, Madurai and is directed against the judgment therein acquitting the respondents of offences under Ss. 465, 467, 468 and 471, I.P.C.

The respondents were tried on the allegation that the first respondent (hereinafter referred to as A1) abetted by the second respondent (hereinafter referred to as A2) forged a sale deed executed by A1 in favour of A2, by making substantial alterations after the appellant had signed the same as an attesting witness.

The facts are: A1 as the power of attorney agent of the owner of the property bearing Door Nos. 26A and 26B executed two sale deeds, one with reference to houses Nos. 26A in favour of the appellant, and another with reference to house No. 26B in favour of A2. It is the case of the appellant that the rights regarding A2 and his right with respect to certain portions abutting their respective houses had been agreed upon by the appellant, A1 and A2, and a sale deed Ex.P2 was executed in favour of the appellant, embodying the rights so agreed to in his favour in which A2 signed as an attesting witness and that a similar sale deed was also executed on the same day, viz., 5th September, 1979, in favour of A2 embodying the rights agreed to in favour of A2, in which the appellant had signed as an attesting witness. The appellant, according to Ex.P2, had the right to put up an east-west wall in the north to south lane, east of the house No. 26A at the southern end. The appellant also had a right to demolish the last step in the staircase on the west leading to the house No. 26B, which was abutting into his land. Ex.P2 was registered immediately after its execution. While the appellant was enjoying his portion of the property and tried to demolish the last step in the staircase encroaching into his portion and when he put up a wall in the north-south lane east of his portion, the same was objected to by A2, who stated that the appellant had no such right as per the sale deeds. Becoming suspicious, the appellant obtained a registration copy of the sale deed executed in favour of A2, marked herein as Ex.P3. The appellant found that quite contrary to the agreement between himself and A1 and A2, material alterations had been made in the sale and executed in favour of A2. The date of execution had been changed from 5th September, 1979 to 28th May, 1980. The consideration had been changed from Rs. 30,500 to 33,500. New recitals were also found in Ex.P3. The appellant found that some of the rights granted to him under the sale deed Ex.P2 were taken away by Ex.P3. The document was a false document made with intent to cause damage and loss to the appellant. His efforts to make the police take action against A1 and A2 proved futile and hence he preferred a private complaint.

In the meantime, the original of Ex.P2 had been produced in a civil litigation instituted in the Civil Court, and with the permission of the Civil Court, the appellant was able to get a photostat copy of the original sale deed, marked herein as Ex.P3. From Ex.P3, the appellant found that certain recitals in the first page had been struck out and two new pages were inserted and numbered as pages 1 and 2, and in the subsequent sheets also, the number of the page was corrected till the very end. The appellant also found that two new sheets numbered as pages 11 and 12 were inserted and in the above pages, it was specifically stated that the appellant had no right to put any cross wall in the north-south lane east of his house and also the existing staircase should be retained in the condition in which it was.

During trial, on behalf of the appellant, he examined himself as P.W.1, and had Exs.P1 to P11 marked on his side.

A1 and A2, when questioned, denied the occurrence. They had no oral evidence and had Ex.D1 marked on their side.

The trial Court, on the above evidence, for the reasons given in the judgment, found that the case of the appellant did not merit acceptance and acquitted A1 and A2 of all the charges. Hence the present appeal by the aggrieved complainant.

Thiru T.S. Arunachalam, learned counsel for the appellant, contended that the reasons given by the trial Court for refusing to accept the prosecution case could not be legally sustained. Learned counsel also stated that a mere look at Ex.P3, which is a photostat copy of the original sale deed executed by A1 in favour of A2, clearly showed that the material alterations had been made subsequent to the appellant attesting the sale deed. This amounted to making a false document within the definition of S. 464, I.P.C., since it was made with intent to cause damage or injury to the appellant in order to support a claim or title of A2, and, therefore, the appeal has to be allowed.

Per contra, Thiru K.M. Thambi, representing A1, and A2, contended that the reasons given by the trial Court could not be characterised as illegal or perverse and that the scribe of Ex.P3 had not been examined, nor was Ex.P3 a proper copy that it was unsafe to rely upon the photostat copy like Ex.P3, and that, therefore, the acquittal of A1 and A2 has to be maintained,

The question that arises for consideration is whether the prosecution has proved its case against A1 and A2 and whether the acquittal has to be reversed.

A1 is the owner of Door No. 26-A and 26-B. He has sold door No. 26-A in favour of the appellant under Ex.P2, dated 5-9-1979. Similarly, he has sold Door No. 26-B in favour of A2. A perusal of Ex.P3, which is the photostat copy shows that the document had been initially drawn up on 5-9-1979 and that those portions relating to the date of execution of the sale deed as the consideration for the same have been struck out. Instead pages 1 and 2 are added wherein it is shown that the document was executed on 28-5-1980 for a sum of Rs. 33,500. It is also seen that in the subsequent pages in Ex.P3, the page number is changed, until page No. 11, when we find that pages 11 and 12 are inserted anew. Thereafter pages 13 and 14 were also corrected. A look at the handwriting in pages 11 and 12 clearly indicates that these two pages have been written subsequently and inserted in the sale deed prior to the registration of the sale deed. Ex.P3 is registered on 28-5-1980. It is also seen that in pages 11 and 12, certain rights of the appellant with reference to the north-south lane east of the house and with reference to the staircase west of the house have been taken away. It is also seen that the appellant has attested Ex.P3 in the last page, now numbered as page 14, as the first witness. The version of the appellant, therefore, that all these alterations regarding the date of examination of the sale deed, the sale price, the re-numbering of pages, addition of pages 1 and 2 and 11 and 12, and the new recitals regarding the way in which the eastern lane and the western lane are to be enjoyed have been inserted subsequent to the appellant attesting the sale deed as a witness is true and has to be accepted. Those alterations must have been made subsequent to the appellant attesting the document and before the actual registration, since the registration copy Ex.P-3, contains all the additions and alterations.

The reason of the trial court that no reliance can be placed upon Ex.P-3 since it is mere photostat copy is not legally tenable. No doubt, a photostat copy is only secondary evidence. However, when the primary evidence, viz., the original document, is in the possession of an opposite party, viz., A2, the appellant would be justified in producing secondary evidence, and a photostat copy is admissible, The trial court''s observation that it would be impossible to conclude that alterations and additions, have been made in the sale deed without the original of Ex.P2 being produced, is equally untenable. A mere look at Ex P-3 clearly indicates the nature of the alterations and additions made.

The further reason given by the trial Court that the failure to examine the Advocate discredited the prosecution case is also unacceptable. Finally, the trial Court''s observation that the present prosecution had been launched as a counterblast to the civil suit filed by A-2 against the complainant is equally unwarranted .The criminal Court will have to decide whether the offences for which the accused are being tried are made out are not. It is, therefore, clear that the acquittal of A1 and A2 for the reasons mentioned by the trial Court in its judgement cannot be sustained.

However, the next question that arises for consideration is whether an offence under S. 467 or S. 468 or S. 471 I.P.C. is made out. Ex.P3 is a sale deed. It is a contract of sale between the vendor A1 and the A2. the vendee relinquishes certain rights and transfers them to the vendee. The vendor and the vendee alone are parties to a contract of sale, and the sale deed executed between the vendor and the vendee would only determine the rights of the vendor and the vendee. The attesting witness to a sale deed under S. 3 of the Transfer of Property Act, 1882, is a mere attestor to the signature of the vendor. He does not vouchsafe to the recitals found in the document; nor is he bound by any of the recitals mentioned therein. Even knowledge of the recitals cannot be attributed to an attesting witness. The rights of third parties not being a vendor and vendee, cannot be affected by any recital made in sale deed. If originally, A1 being vendor and A2 being the vendee had agreed upon the contract of sale on certain terms for a particular sale consideration, A1 agreeing to give certain rights to A-2, and they reduced the same in the form of a document and later prior to the registration of the document, both the vendor and the vendee agreed to alter the terms of the contract of sale and made suitable alteration in the sale deed, and if the vendor subsequently is also a party to the above alteration, it cannot be said that the vendor and the vendee are creating a false document. "Making a false document" is defined in S. 464. I.P.C as follows:

A person is said to make a false document - First.-Who dishonestly or fraudulently makes, signs, seals or executes of document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be delivered 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

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...

A reading of the above definition clearly shows that when the vendor alters his own document, even a material part of it, after he had made it, he would not be making a false document. The second limb of S. 464 I.P.C. requires that the alteration must be made without lawful authority. In the instant case, since A-2, in whose favour Ex.P3 has been executed is also a party to the alteration, it cannot be said that A1''s altering Ex.P3, as it now stands, is done without lawful authority. No doubt, the appellant, who is attesting witness, might not have been consulted. May be, the rights of the appellant given to him under his sale deed are sought to be taken away under Ex.P-3. Since the appellant, who is mere attesting witness, is not a party to the document, his authority to alter the document is not necessary. The rights created in favour of the appellant under his document cannot be taken away by any recital made in Ex.P-3. No doubt, it may lead to civil litigations, but the rights of the parties are to be determined by civil Courts. Even if the appellant is an attestor in Ex.P-3, the rights given to the appellant by A-1 under the sale deed in favour of the appellant cannot be taken away by any recital in Ex.P-3. When the appellant attests Ex.P-3 as an attesting witness, he attests the signature of A-1 not only in the last page of Ex.P-3, wherein the appellant has signed as an attesting witness, but the appellant is deemed to attest the signature of A1 found in each and every page of Ex.P3. May be, the insertion of pages 1, 2, 11 and 12 to Ex.P-3 subsequent to the attestation by the appellant in the last page, may have its own bearing on the legality of the attestation and the validity of Ex.P3, still that would not make Ex.P3 a "false document" within the definition of S. 464 I.P.C. Under the above circumstances, the offences under S. 467, 468 and 471, I.P.C. are not made out. The acquittal of the respondents by the trial Court has to be sustained on different grounds.

The appeal, therefore, fails and is dismissed.

I wish to place on record the services of Mr. K.N. Thambi. Advocate appointed by the Tamil Nadu Legal Aid and Advice Board to appear on behalf of the respondents.