Baij Nath Bhagat vs Emperor

Dhavle, J.—The petitioner has been convicted of the offence of fraudulently or dishonestly using as genuine a certified copy of a decree which he knew or had reason to believe to be a forged document. In 1935 he brought a money suit on a handnote for Rs. 250. The suit was decreed on 4th July 1935, and the decree was signed on the 8th of that month. On 21st July 1938, a petition for execution of the decree was filed in the Court of the Munsif by Babu Satnarain Bhagat, pleader and brother of the petitioner. This petition was accompanied by a certified copy of the decree in which the date of the judgment was palpably altered in two places from 4th to 24th July 1935, and the date of the decree was similarly altered from the 8th to 28th of that month. On the following day Shamsuddin Ahmad, the Civil Court mohurrir who had received the execution petition, compared the copy of the decree with the money suit register and discovered that the dates looked suspicious both in the copy and in the money suit register. After consulting his colleagues, he brought the matter to the notice of the Munsif, who also examined the entries, and pending the receipt of the original record of the suit from the district headquarters, held an enquiry.

It was thus that on 26th July 1938, he questioned the petitioner and was told by him that he had obtained the certified copy of the decree, that in the certified copy the date of disposal of the money suit was copied as 24th July 1935, and that "it was all along as it is now." The Munsif also examined his mohurrirs, the pleader, the pleader''s clerk Ajab Lal and the writer of the execution petition, Baleshwar Prasad, who happened to be the clerk of another brother of the petitioner, who had also been a member of the bar but was then a paralytic. As a result of the Munsif''s inquiry the petitioner was placed on his trial.

There is no dispute now that the execution petition with the dates as we find them was filed by the petitioner''s pleader on 21st July 1938. There is also no dispute that the dates in the original decrees were 4th and 8th July 1935.

The copyist who prepared the certified copy filed on behalf of the petitioner was examined as a Court wit-ness and swore that he had copied the dates correctly, and denied that the figure "2" in three places in the dates given in the certified copy (twice before the 4th and once ''before 8th July), was his writing. The evidence of the copyist was supported by the circumstances, for the copy was prepared in August 1935, when there was no reason" whatsoever to tamper with the dates, and "towards the end of the month the copy was amended by order of the Court in respect of two items (besides the total) in the statement of costs given, as usual, at the end of the decree.

It seems to have been suggested in the trial Court that Samsuddin, the Court mohurrir, may have altered the dates. The suggestion was repelled by the Magistrate and was, quite rightly, not repeated before the Sessions Judge.

The principal defence was that long, before the filing of the execution petition the petitioner had made over the copy of the decree to Ajab Lal in order to put the decree into execution, and that Ajab Lal had allowed the decree to become barred by limitation and then tried to save it by altering the dates. This was put by way of suggestion only to Ajab Lal in cross-examination, and denied by him. The lower Courts have both accepted Ajab Lai''s denial, rejecting the evidence of Baleshwar, who happens to be a cousin of the petitioner and who wrote the execution petition although he was not the mohurrir of the pleader working for the petitioner in the execution proceedings, that he had written the petition at the instance of Ajab Lal. No evidence was produced on behalf of the petitioner, nor anything of importance elicited from such friendly prosecution witnesses as the petitioners'' brother and cousin in support of the suggestion put to Ajab Lal.

It was also urged that the petitioner could not possibly have had any motive for altering the dates in the certified copy as the three years limitation for execution ran from the date of amendment and had therefore not yet expired. But the dates were in fact altered, and altered so palpably that, as the learned Sessions Judge had remarked, "no man with any common sense can fail to realize that there is suspicion in the dates." It is also obvious that whoever brought about the alterations did not realize how limitation was saved by the amendments of 30th August 1935.

Learned counsel for the petitioner has contended that the fraudulent user of the forged copy of the decree has not been conclusively brought home to the petitioner, that the lower Appellate Court has acted on inadmissible evidence, and that the decree not being really time-barred, the alterations were immaterial and did not constitute forgery as they did not make the document "more efficacious."

Now, it is necessary for the. prosecution when the charge is u/s 471 to show that the accused knew or had reason to believe the document to be forged and used it fraudulently or. dishonestly. The execution. petition of 21st July 1938 was signed by the petitioner himself in the three usual places. It gave 24th July 1935 as the date of the decree, and the Courts below had before them the palpably altered dates in the copy of the decree filed with it besides the statement Ex. 12 made by the petitioner to the Munsif on 26th July 1938. The petitioner did not on that occasion suggest anything about Ajab Lal having received the copy of the decree long before and having allowed the decree to become time-barred : but said, on the contrary, that the date "24th July 1935" in the copy "was all along as it is now."

Learned Counsel has endeavoured to meet the comment of the lower Appellate Court on this failure of the petitioner to state such an important fact on the earliest occasion by urging that the petitioner was not then on his defence. I am not impressed by this, because if the story about Ajab Lal had been true, there was no reason why the petitioner should not only have kept it back at the time--unlike Baleshwar, Ajab Lal is not even related to the petitioner--but should also have stated that he himself had obtained the certified copy and that the date of disposal of the money suit shown in it had all along been 24th July 1935. Mr. Manuk has also referred to a suggestion made by the prosecution in the cross-examination of Baleshwar after the witness had gone the length of saying that he did not recognize the handwriting of the petitioner''s signatures on the execution petition.

This suggestion was that the petitioner had given the decree to Baleshwar, that Baleshwar found that it was time-barred after showing it to the pleader Satnarain Bhagat, that Baleshwar then asked Ajab Lal to write the execution petition, that Ajab Lal refused and that Baleshwar then wrote the petition, asking Ajab Lal only to sign as scribe. The contention is that this completely exonerates the petitioner. But it is nobody''s case that that is what actually took place, and the prosecution seems merely to have thrown out a not very fully thought out suggestion to make out that the witness was telling very much less than he knew about the affair. Baleshwar himself denied the suggestion.

It has also been suggested by learned Counsel that the petitioner may not have noticed the alterations in the dates in the certified copy, but this suggestion is entirely irreconcilable with the petitioner''s statement to the Munsif, the whole of which is in evidence. As to inadmissible evidence, the entention on behalf of the petitioner is that what Satnarain Bhagat told Shamsuddin on the evening of 23rd July, in the absence of the petitioner is no evidence against the petitioner. According to Shamsuddin, Satnarain told him that the decree (that is to say, the certified copy) had been shown to him by the petitioner, that Satnarain had pointed out that it was time-barred, and that Baleshwar had taken it away. The trial Court, as a matter of fact, was not inclined to believe this incident as given by Shamsuddin.

The lower Appellate Court, on the other hand, found nothing improbable in it and preferred to believe the mohurrir rather than the pleader. The matter was reported to the Munsif on the next working day, namely 25th July and if the mohurrir did not go up to the Munsif at once, the learned Sessions Judge thinks it not unnatural for Shamsuddin to have displayed a slight amount of sympathy, to the pleader who had been at school with him. The learned Sessions Judge certainly considers the incident as an important piece of evidence, but it is by no means clear that he uses it as evidence, against the petitioner. It was certainly evidence against the pleader who, when cross-examined by the prosecution-with the leave of the Court, went so far as to say that he did not remember if he filed the execution petition on the instructions-of the petitioner, adding that he had authorized him to file it.

The pleader, who occupied a dual position in the matter because he was the petitioner''s brother as well, has made himself thoroughly unreliable as a witness, and the conclusion that the petitioner knew the certified copy to be forged was arrived at by the trial Court irrespective of this incident between Shamsuddin and the pleader. Indeed, in my opinion, the petitioner''s statement to the Munsif on the earliest occasion makes it impossible not only to entertain seriously his later suggestion in cross-examination that Ajab Lal had allowed the decree to be time-barred and may, therefore, have made the alterations, but also to doubt that the petitioner was aware of the alterations in the dates.

Coming now to the last argument on behalf of the petitioner, learned Counsel has cited Aparti Charan v. Emperor AIR (1930) Pat 271 and contended that-as by reason of the amendment the decree'' was not in fact time-barred, this was not a case of forgery since the offence requires a possibility of some person being defrauded by it, that is to say being not only deceived but injured by the forgery. The case cited was one in which a plaint was filed on behalf of a lady by her husband, and what he described as the thumb-impression of his wife was shown not to be her thumb, impression at all. It was a suit for rent, and the defendant was liable for it and no damage was caused to him. As to the lady, she had given a general permission to her husband to file papers in Court on her behalf, and had given him authority to sign on her behalf and file papers in Court.

The plaint being filed in her interest, and as she said, under her authority, there was no fraud on her. It is true that the plaint was not really signed by her, but this was found to be only a defect in procedure which was curable. Boss J. who decided Aparti Charan v. Emperor AIR (1930) Pat 271 referred to the similar cases in Ramsarup v. Emperor AIR (1918) Pat 640 and Reg. v. Bhavani Shankar (1874) 11 Bom HCR 3 in the latter of which reference was made to the view of Cress-well J. in Reg. v. Marcus (1846) 2 Oar & K 386 about the possibility of some person being defrauded--that is to say, not only deceived but injured--by the forgery being essential in point of law to constitute an intent to defraud. But as Cresswell J. himself pointed out in Reg. v. Nash (1852) 2 Den CC 493 the case in Reg. v. Marcus (1846) 2 Car & K 386 was decided before 14 and 15 Vict., Clause 100, which made it unnecessary to allege the intent of the defendant to defraud any particular person, while the three counts in the indictment of Marcus mentioned the intent to defraud the London and Croydon Railway Company and two specific individuals. Maule J. in Reg. v. Nash (1852) 2 Den CC 493 pointed out that in order to convict a person of an intent to defraud, it is not necessary that any person should be in a situation to be defrauded. As the learned Judge had observed during the arguments, a man may have an intent to defraud and yet there may not be any person who could be defrauded by his act:

Where a person has no account at his banker''s but a man supposes that he has, and on that supposition forges his name, there would be an intent to defraud in that case although no person could be defrauded.

It would thus seem somewhat doubtful whether in England it is still regarded as essential indictments for forgery that there should be a possibility of some person being injured in consequence of the forgery: see foot-note (o) at p. 587 of Halsbury''s Laws of England, Vol. 9, Edn. 2. One well-known writer deduces the English law from Reg. v. Marcus (1846) 2 Car & K 386 and other cases to be that

if the person whose signature has been forged as the drawer of a cheque has ceased to have any account at the particular bank, this will not deprive the forgery of its full criminality. But the fraudulent intent necessary will not exist unless the offender had reasonable grounds for supposing (however wrongly) that someone or other might possibly be defrauded: Kenny''s Outlines of Criminal Law, Edn. 11 p. 262.

Be that as it may, it would seem to be clear under the English law that a forgery is nonetheless so because it was committed in order to support a title which was good without it, for it is settled that a man may be fully guilty of forgery although the money which he aimed at getting by the forgery was only a sum that was legally due to him. Coming to Indian law, Aparti Charan v. Emperor AIR (1930) Pat 271 was a case in which a claim was made which only suffered from an informality curable under our Civil Procedure Code, while in the present case execution was sought on the basis of a copy of the decree in which the dates were altered under the impression that the decree was time-barred. Section 471, L P.C., contains the expressions "fraudulently or dishonestly" terms which are defined in Section 24 and 25, the latter being equivalent to "with intent to defraud"--and "a forged document." Our definition of forgery is to be gathered from Sections 463 and 464, and may, for present purposes, be taken to be that a person commits forgery who, with intent to support any claim or title, alters a document in any material part without lawful authority, dishonestly Or fraudulently.

In construing the expression dishonestly or fraudulently, which thus occurs in the definition, it is important to bear in mind one of the illustrations u/s 464 which has a bearing on the question how far loss or risk of loss is an element in fraud as contemplated in the Code. This illustration is:

(k) A without B''s authority writes a letter and signs it in B''s name certifying to A''s character, intending thereby to obtain employment under Z, A has committed forgery inasmuch as he intended to deceive Z by the forged certificate, and thereby to induce Z to enter into an express or implied contract for service.

Reference was made to this illustration in Queen-Empress v. Vithal Narayan, (1889) 13 Bom 515 where Le Blanc J.''s description of fraud in Hayoraft v. Creasy (1801) 2 East 92 was adopted:

By fraud I understand an intention to deceive; whether it be from any expectation of advantage to the party himself, or from ill-will towards the other is immaterial.

The meaning of the word ''fraudulently'' in our Code has been the subject of many decisions, which are not all easy to reconcile, especially in connexion with the cognate offence of falsification of accounts u/s 477-A, created in 1895 and embodying as an essential ingredient "wilfully and with intent to defraud." In Queen-Empress v. Abbas Ali (1898) 25 Cal 612 a Full Bench of the Calcutta High Court held that deprivation, actual or intended, is not a necessary ingredient of the intent to defraud referentially imported into Section 464 and Section 471. Maclean C.J. who delivered the judgment of the Full Bench added

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 CC 33.

the forgery in the case before the Full Bench relating to a certificate qualifying for admission to a certain professional examination. In Kotamraju Venkatarayadu v. Emperor (1901) 28 Mad 90 a Full Bench of the Madras High Court followed the decision in Queen-Empress v. Abbas Ali (1898) 25 Cal 612 and White C.J. after referring to Sir James Fitz-James Stephen''s well-known observations about ''fraud'' or ''intent to defraud'' or ''fraudulently'' in his History of the Criminal Law of England (Vol. 2, p. 121), pointed out that u/s 24 of the Code it is not necessary for a thing to be done ''dishonestly'' that there should be an intention to cause both wrongful gain and wrongful loss.

The learned Chief Justice was apparently inclined to the view, on the analogy of that Section, that

either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud,

though he did not consider it necessary to decide whether an intention to secure a benefit or advantage by means of the deceit by itself constitutes an intention to defraud, because the accused who had submitted to the University a certificate qualifying for admission to an examination with the intention that the University should admit him to the examination, was taken to have done so with the intention of causing lossor detriment to the University. This was in fact the point on which two of the learned Judges differed from the majority of the Full Bench, and Subrahmania Ayyar J. distinguished Reg v. Toshaok (1849) 4 Cox CC 33 and Illus. (K) to Section 464. In Robinson v. Emperor (1921) 63 IC 617 a chemist had been induced to supply twelve tubes of morphia on the basis of three prescriptions which were for one tube each, but in which the words ''one tube'' had been altered to ''four tubes.'' Shadi Lal C.J. and Moti Sagar J., held that the alterations were fraudulent. They referred to Sir James Fitz-James Stephen''s observations:

A practically conclusive test as to the fraudulent character of a deception for a criminal purpose is this:--Did the author of the deceit derive any advantage from it which he could not have had, if the truth had been known? If so, it is hardly possible that that advantage should not have had an equivalent in IOBS, or risk of loss, to someone else, and if so there was fraud.

The deception practised upon the chemist was taken by the learned Judges to have deprived him of his right to refuse to sell morphia in quantities exceeding those specified in the genuine prescriptions and thus to have supplied the element of loss or the risk of loss essential to a forgery, The loss to the chemist is comparable to the loss to Z in Illus. (K) or to the loss to the Munsif in having to deal with the execution petition of 21st July 1938 in this ease. It was also urged in Robinson v. Emperor (1921) 63 IC 617 that fraud was unnecessary. The learned Judges overruled this contention and referred to Norris J.''s observation in Empress v. Dhunum Kazee (1883) 9 Cal 53 :

Let a person''s title to property be ever so good yet if in the course of an action brought against him to gain possession of the property he uses by way of supporting his title, though there may be no necessity for the use of it, a forged document....I am clearly of opinion that he uses it fraudulently.

In our own Court the meaning of "intent to defraud" was considered in Sukhamoy Maitra v. Emperor AIR (1938) Pat 165, a case u/s 477-A, where Rowland J. said that he did not find that any of the later cases had gone so far as Norris J. in Empress v. Dhunum Kazee (1883) 9 Cal 53. The attention of the learned Judge does not seem to have been drawn to Robinson v. Emperor (1921) 63 IC 617 nor to the decision in In re Shivananda Mudali AIR (1926) Mad 1072, in which the question arose whether the alteration of a plot number in a partition deed could amount to forgery if the accused had an independent title to the new plot. Devadoss J. said:

If a person in order to resist a false claim for money makes a false receipt, does he or does he not commit forgery? Even if the Court holds that the claim is false, that would not make the false receipt any the less a forgery. Whether a document is a false document or not does not depend upon the adjudication of the Court on the claim or title which is intended to be propped up by the false document.

Norris J.''s observation was quoted. The alteration was held to be a forgery on the ground (to quote Waller J.) that if a man intends to gain an unfair advantage by deceitful means and uses a false document for that purpose, his conduct is fraudulent,

intention being taken to be as Devadoss J. put it--to defraud the Court or the party against whom the document is used. In the Bombay High Court the point was considered in Emperor v. Balkrishna Waman (1913) 37 Bom 666 where Batchelor J. considered (1801) 2 East 1927 and ''the observations of Sir James Mfcz-James Stephen as applied in India and came to the conclusion that the word "fraud" is used in our Penal Code in its ordinary and popular acceptation.

In a recent Allahabad decision, Emperor Vs. Ragho Ram, a case u/s 477-A much the same view was taken, the learned. Judges observing that where there is an intention to obtain an advantage by deceit there is fraud and if a document is fabricated with such intent, it is forgery. Page J. in Emperor v. Mohit Kumar AIR (1926) Cal 89 reviewed previous decisions on the questions of fraud under the Penal Code and referred not only to (1801) 2 East 927 and other old English cases but also to Rex v. Newton and Bannet (1914) 23 Cox CC 609 in which the Court of Criminal Appeal followed Buckley J.''s definition in In re London & Globe Finance Corporation Ltd. (1903)1 Ch 728:

defraud is to deprive by deceit; it is by deceit to induce a man to act to his injury. More tersely it may be put that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.

The learned Judge''s conclusion was:

That an offence is committed u/s 471 whenever a document known or believed by the accused to have been forged is used as genuine with the intention that some person, thereby should be deceived, and by means of such deception that either an advantage should accrue to the person so using the document or injury should befall some other person or persons.

The indictments for common law forgery in the case of Toshack, Reg v. Toshack (1949) 4 Cox CC 33. who had fabricated a certificate qualifying for examination as a master mariner, alleged an intent "to deceive, injure, prejudice and defraud" the four examiners and the Corporation of Trinity House which used to issue certificates to act as masters upon such examination; and when the point was referred to the Court of Criminal Appeal the counts in question were held to be good and the conviction right. In such cases as those from 25 Cal 5123 and 28 Mad 9010 (already referred to) where the question was whether an intent to defraud within our Penal Code was brought home to the accused who had submitted a false certificate in order to obtain admission to an examination, there was a clear primary intention of deceiving and by deciet of inducing a course of action on the part of the person deceived and obtaining an advantage, from him.

Except so far as loss or detriment is almost necessarily involved when an advantage is thus obtained, any intention of causing loss was a matter of remote inference. Illus. (K) to Section 464 seems to contemplate not the loss that may possibly result to Z from the contract of service which he may be induced by the forgery and deceit to offer to A, but rather the advantage of employment primarily aimed at by A. In Robinson v. Emperor (1921) 63 IC 617 the chemist must have been paid whatever he would have charged any ordinary customer for the morphia supplied on the forged prescriptions. He had of course a right to refuse to sell except on a genuine prescription but he was perhaps not bound to sell even on such prescriptions. The loss or risk of loss from the violation of his right to refuse to sell is far less clear and much more indirect than the advantage that Robinson obtained by the forgery and deceit. The petitioner before me had the forged copy of the decree filed in order to obtain execution as upon a decree of 24th July 1935.

There was no such decree in existence and the fact that he sought to gain this advantage is not in the least affected by the circumstance that if he had been correctly advised, he would have known that the decree of 4th July 1935 was saved from the time-bar, by the amendment of August 1935. In my opinion a sufficient intent to defraud is involved in the advantage directly aimed at by the petitioner on the basis of the altered dates; and it is immaterial that the alterations were brought about under an erroneous impression that the decree was time-barred. A fraud, it is clear, was attempted upon the Court. I am not prepared to hold that in such a case it is necessary for the prosecution to go further and establish an intent to cause loss or risk of loss. But even if the contrary were to be held, the definition of injury in Section 44 of our Penal Code is very wide, and Priyanath Gupta v. Lal Jhi Chowkidar AIR (1923) Cal 590 shows how the threat of a decree that could not be executed by any competent authority--in this case the decree of 24th July 1935--is a threat of harm or injury within the meaning of the Code. Mr. Manuk also referred to the observation of Bramwell, B. in Reg v. John Smith (1858) 8 Cox CC 32:

Forgery supposes the possibility of a genuine document and that the false document is not as good as the genuine document and that the one is not as efficacious for all purposes as the other.

That observation referred to some printed wrappers which were found to be as good for describing the powers for which they were to be useful as other wrappers which they imitated were for describing their own contents. The mere printing of the wrappers was held not to constitute forgery, but this seems to have no application at all to the facts of the present case.

A genuine copy of the decree would, it is true, have entitled the petitioner to execution of a decree passed on 4th July 1935 and amended on 30th August 1935, but the copy filed by the petitioner sought execution of a decree passed on 24th July 1935. The unauthorized alterations in the dates actually made the copy of the decree "more efficacious" than the genuine decree in the sense that the petitioner took the real decree to be time-barred and attempted to bring into existence a decree of a later date, not that this is essential to a forgery. In my opinion the fact that the petitioner held a decree which was capable of execution on 21st July 1938, does not prevent the alterations in the certified copy filed on behalf of the petitioner from being forgeries or the petitioner''s user of it from being fraudulent. The petitioner has been rightly convicted. The application in revision is dismissed.