Fulchi Mandal and Another vs The State of Bihar

S. Wasiuddin, J.—There are two appellants in this appeal. Both have been convicted u/s 471. read with Section 467 of the Indian Penal Code (hereinafter referred to as the Code), and sentenced to undergo rigorous imprisonment for five years each. It may be also mentioned here that they had also been prosecuted and charged for the offence u/s 467 of the Code, but the learned trial court has recorded an order of acauittal in respect of that charee.

The relevant facts, which have given rise to this appeal may be briefly stated as follows. Fekan Mandal. who figured as P.W. 1 in the case, was a decree holder, having obtained a decree on the basis of a hand-note against the appellants, who were judgment-debtors. Fekan- Mandal filed an execution case for the execution of the decree and this was registered as Execution Case No. 25 of 1960. In the exe-. cution case a petition, purporting to be a petition of satisfaction and purporting to have been signed and executed by Fekan Mandal decree-holder, was filed on the 8th November, 1960. but, some how or other, it appears that no notice of this petition was taken until the 6th December. 1960. It was on this day that'' a mention of this petition was made in the order-sheet of the execution case. The decree-Holder. Fekan Mandal. thereafter filed a petition which was registered as Miscellaneous Judicial Case No. 195 of 1961 in the Munsif''s First Court at Bhagal-pur. It was urged in the petition that no such petition of satisfaction had been signed by the decree-holder and it had not been filed by him and that the decree-holder had not received a single farthing in respect of the decree. There were allegations also to the effect that the petition did not contain the signature of the lawyer of the decree-holder and it was not known as to who was the scribe, who had described himself as Arjun Mandal, Karpardaz of the decree-holder. The Judgment-debtors thereafter filed a rejoinder to the effect that the petition of satisfaction was a genuine document and that the decree-holder in spite of having received ,the money dishonestly was disowning the satisfaction petition.

As stated above, a miscellaneous case had been instituted and the learned Munsif made inquiry into the matter and he was of the view that the satisfaction petition was not a genuine document and. having not ''accepted the satisfaction as genuine, he held that the decree remained unsatisfied and further directed that a comp-plaint be filed under the provisions of Section 195 of the Code of Criminal Procedure for the prosecution of the appellants for the. offence u/s 471 read with Section 467 of the Code. In consequence of this direction of the learned Munsif. a regular complaint was filed and the learned Sub divisional Magistrate '' after having taken cognizance of the same, transferred the case to a Magistrate, before whom the usual commitment inquiry was held. The learned Magistrate having found a prima facie case against the appellants, committed them for trial to the court of session. There was a trial held in the court of Shree G, P. Shar-ma, Assistant Sessions Judge, Bhagal-pur, and the learned Assistant Sessions Judge held that the petition of satisfaction had been filed by the iudgment-debtors, i.e., the present appellants, but. he also held that there was no material to hold that the forgery had been committed by any of the appellants, and, therefore, in this view of the matter, he acquitted the appellants of the charge u/s 467 of the Code, but convicted them of the offence u/s 471 read with Section 467 of the Code.

It may be also mentioned here that the defence taken by the appellants in the sessions trial was to the same effect as in the miscellaneous case before the learned Munsif, about which I have stated above. There was an assertion on behalf of the appellants to the effect that the document was a genuine one and there were also allegations to the effect that one Mahendra Mandal who was a son of the decree-holder Fekan Mandal. was a person who had acted dishonestly on many other occasions, and, therefore, he might have perpetrated some kind of fraud. It may be mentioned here that this Mahendra Mandal was also examined at the sessions trial.

The appellants, being aggrieved by and dissatisfied with the iudg-ment of conviction of the learned Assistant Sessions Judge, have preferred this appeal.

learned Counsel appearing for the appellants, at the time of the hearing of this appeal, substantially made three submissions. One of these is to the effect that the order of conviction u/s 471 read with Section 467 of the Code was illegal and stands vitiated in view of the fact that the learned Assistant Sessions Judge, as already stated above, recorded a finding of acquittal in respect of the charge u/s 467 of the Code. It has also been urged that since no appeal on behalf of the State has been filed in respect of the acfluittal u/s 467 of the Code, this Court cannot disturb the finding of acquittal and the conviction u/s 471 of the Code in such circumstances is not sustainable. The second submission which has been made is that the finding was also bad because the petition of satisfaction cannot be regarded as a valuable security,, but. the learned Counsel for the appellants fairly conceded- that he was not pressing this point. It has also been submitted that there was a serious lacuna in the prosecution evidence because the handwriting expert had not been examined and this should have been. done, when, on the one hand; it was urged that there was the signature of the decree-holder Fekan Mandal. which, on the other hand, was denied on his behalf. It has also been further submitted that taking an overall picture of the evidence and the circumstances the finding of conviction u/s 471 of the Code is also bad.

I will take up first of all the question whether the conviction u/s 471 of the Code is bad and stands vitiated, as urged by learned Counsel for the appellants. There were twp charges against the appellants. The first charge was u/s 471 read with Section 465/467 of the Code, and this charge is to the effect that on the 8th. November. 1960. and 6th December. 1960. in the court of the Additional Munsif, Bhagalpur. the appellants fraudulently and dishonestly used as genu- ine a certain document, viz., satisfaction petition dated the 29th October. 1960. acknowledging payment of money. in Execution Case No. 25 of 1960. The learned Assistant . Sessions Judae in paragraph 10 of his judgment stated. "But it is not possible to sav with confidence that these accused actually forged this satisfaction petition." and thereafter, towards the concluding portion of this paragraph he stated, "Thus, these accused are acauitted of the charge u/s 467, IPC" The contention of the learned Counsel for the appellants, therefore, is auite correct in this respect that there was a clear recording of acciuittal in respect of the charge u/s 467 of the Code. But the last paragraph of the iudgment of the learned Assistant Sessions Judge, which I will be Quoting here in extenso, requires a fuller examination. In the last paraeraph it is stated as follows:

These accused have been convicted and sentenced to rigorous imprisonment for five years u/s 471 read with Section 467 IPC for dishonestly using a forsed document as genuine knowing full well that it was forged. These accused have been sentenced to five years rigorous imprisonment each for offence u/s 471 IPC because thev have '' dishonestly used a forged satisfaction petition knowing full well that it was forged. It is obvious that such a conduct on the part of the judgment-debtors accused must not be encouraged and punishment for rigorous imprisonment for five years is quite fair in my view under the circumstances.

The observations in the earlier part of this paragraph would, no doubt, necessarily lead to the conclusion that there was a conviction u/s 471 read with Section 467 of the Code, but if the subsequent portion of the paragraph is read. then it means that the conviction was only u/s 471 of the Code. On a perusal of the entire judgment of the learned Assistant Sessions Judge, particularly with reference to the observations made in the paragraphs referred'' to above, it appears to me that the learned Assistant Sessions Judge rather got confused with this aspect of the matter that having framed a charge u/s 471/467. Indian Penal Code, he thought that it was necessary to sav the conviction was u/s 471 read with Section 467 of the Code.

Section 471 of the Code runs as follows:

Whoever fraudulently or dishonestly uses as Eenuine any document which he knows or has reason to believe to be a foreed document, shall be punished in the same manner as if he-had forged such document.

The important ingredients of this section, therefore, are that a document al�j. though not senuine, and a person know-'' ing it not to be genuine or having reasons to believe that it is not a senuine but a forged document, uses it and that also fraudulently and dishonestly, and then it comes within the mischief of Section 471 of the Code. It is not necessary that the use should be in a particular manner. If it is known to be not a genuine document and it is used, it is sufficient. The section does not lav down as to what would be the punishment for it, but it only lays down that the accused "shall be punished in the same manner as if he had forged such document," and although the section does not specify the punishment, yet it clearly lavs down that the punishment shall be iust like a punishment for forgery. In the model charge given in the Law of Crimes of Rattanlal. there is a specific mention "That you. thereby committed an offence punishable Under Sections 465 and 471 of the Indian Penal Code...." First of all. it has to be proved that the document is forged, as contemplated by Sections 463 and 464 and Section 471 can come into operation only if a document is not genuine but a forged one. But. I think that there can be no bar in law for a conviction u/s 471 onlv, although there is- acquittal for the offence either under Sec 465 or Section 467 of the Code.

learned Counsel for the appellants has relied on a Single Judge decision of this Court in the case of Mangal Singh Vs. The State, . In the concluding portion, his Lordship was pleased to observe that "If. therefore, the petitioner is acauitted of the; charge u/s 467. Indian Penal Code, it follows automatically .that he cannot be held liable for the charge u/s 471. Indian Penal Code." and reliance has been put on this observation with a view to strengthen the argument on behalf of the appellants that when there has been an acauittal u/s 467. there cannot be a conviction u/s 471 of the Code.

The facts and the circumstances of the above case were auite distinguishable from the facts of the present case, because there was an allegation that the document produced in the proceeding, was antedated and a question arose for consideration, whether the-mere antedating of the document would be forgery within the meaning of the Code, and when the document was held to be not a forged document, then, naturally, it follows .that there cannot be a punishment u/s 471 of the Code. Here, in this case, if the finding has been or if in appeal it was found that the document was not a forged document, there could not have been any conviction u/s 467. But, naturallv. the acaui-ttal u/s 467 only means that it has not been proved and the court could not come to a finding that these two appellants, were the persons who had actually forged the document. But using a document is quite independent and separate from forging a document. On a perusal of the entire judgment and in view of the facts, which I have stated above, the learned Assistant Sessions Judge may not have been able to express himself in so many clear words, but that is what he must be deemed to have meant. There is. therefore, no substance in this point raised in this .appeal.

The second point, which has been urged, is that the evidence and the circumstances did not prove that the document was a forged and fabricated "document. (After discussing the evidence, the judgment proceeded.)

There was thus the oral evidence and the circumstances emanating from the same, but it has been strongly urged that in such a case there was the necessity of examination of a handwriting expert, but it had not been done. True, it is, that no hand-writing expert was examined, but it appears to me that at no stage, either when the inauirv was pending before the Munsif or in the court of the committing Magistrate or in the sessions court any prayer was made or any objection taken that the hand-writing expert had not been examined. In a case like this, the examination of an expert may be desirable, but a pertinent Question arises, whether in absence of the examination of a hand-writing expert the prosecution case should fail. The obvious answer to this would be that if there is no handwriting expert then the evidence on record and the circumstances, have to be judged and it has to be seen whether the prosecution has been able to prove beyond all reasonable doubts the charge and, I think that, the learned Assistant Sessions Judge, in view of the evidence on the record and the circumstances, came to the correct finding that the document was not a genuine document. but it could not be held that appellants had forged the document, and so the appellants were guilty only for using the document u/s 471 of the ''Code.

The last point, which has been submitted in this case, is the sentence is too severe and the decretal amount has already been deposited. It appears from the materials on the record (vide Order No. 56 of the execution case) that on the 24th January.. 1963. the- judgment-debtors, i.e., the present appellants, having obtained permission to deposit the decretal dues, deposited the entire decretal dues, which amounted to more than Rs. 1000/- and a payment order had also been passed for makjng payment to the decree-holder. The money has, therefore, been paid by the judgment-debtors. This would be> a circumstance to be taken into consideration, as far as the sentence is concerned. Since it could not be proved that these appellants had committed forgery themselves, but the document was not genuine, and, since the deposit has been made, considering these aspects of the matter, there is scope for modification of the sentence. Therefore, the conviction u/s 471 is upheld but the sentence is modified to a period o% two years'' rigorous imprisonment.

The appeal is dismissed, except for the modification in the sentence, referred to above.