JIMMY DAVID CHAKKIYATH vs THE STATE OF KERALA

The revision petitioner herein challenges the conviction and sentence against him under Sections 467 and 468 I.P.C in C.C 560/1996 of the

Judicial First Class Magistrate Court, Malappuram. He was a Lower Division Clerk in the Office of the Deputy Director of Panchayats (DDP),

Malappuram in March, 1992. He faced prosecution on the allegation that on 27.3.1992 he created a false office order in the name of the DDP

authorising a contractor to receive some amount due to him from the Vazhikadavu Grama Panchayat under a contract for the construction of a

culvert. The alleged forgery was detected by the DDP in whose name the said order was made, during a surprise check by him at the Vazhikadavu

Grama Panchayat Office. During such a surprise inspection, he happened to see an office order in his name. Finding that it is a forged office order

in his name, he initiated action against the concerned persons and made a complaint. During investigation, the Police detected that the said false

document in the name of the DDP was made by the accused while functioning as the Lower Division Clerk at the office of the DDP. The

construction of the culvert was taken up by one contractor Alavi. The allegation of forgery was confirmed by the Police after interrogating the said

Alavi, and after investigation, the Police submitted final report in court.

The accused appeared before the learned Magistrate and pleaded not guilty to the charge framed against him under Sections 467 and 468

I.P.C. The prosecution examined 12 witnesses and proved Exts.P1 to P24 documents in the trial court. When examined under Section 313

Cr.P.C, the accused denied the incriminating circumstances and projected a defence that he had not done anything dishonestly, and that he had not

derived any sort of monetary or other benefit in the alleged transaction. He also disowned a letter allegedly containing his admissions. The accused

did not adduce any evidence in defence.

On an appreciation of the evidence, the learned Magistrate found the accused guilty. On conviction, he was sentenced to undergo rigorous

imprisonment for six months each and to pay a fine of Rs. 2500/- each under Sections 467 and 468 I.P.C by judgment dated 31.8.2000.

Aggrieved by the judgment of conviction, the accused approached the Court of Session, Manjeri with Crl.A 213/2000. In appeal, the learned

Additional Sessions Judge (Adhoc-II), Manjeri confirmed the conviction and sentence, and accordingly dismissed the appeal by judgment dated

17.9.2003. Now the accused is before this Court in revision challenging the legality and propriety of the conviction and sentence, on the ground

that the evidence adduced by the prosecution will not prove the essentials of the offences under Sections 467 and 468 I.P.C, or that an instance of

forgery as meant and defined under the law is not proved by the prosecution.

The prosecution examined so many witnesses and proved so many documents in the trial court. The material witnesses are PW2, PW5, PW8

and PW9, and the material documents are Exts.P1 and P8. Ext.P1 is said to be the office order forged by the accused in the name of the DDP.

PW2 is the said Deputy Director, who detected the forgery and initiated prosecution. Ext.P8 is said to be a letter sent by the accused to PW2

admitting his liability. PW5 was the Head Clerk in the office of the DDP at the relevant time, and PW8 was the Upper Division Clerk at the

Vazhikadavu Grama Panchayat office at the relevant time. PW9 is the Contractor who took up the work of construction of a culvert within the

Panchayat. The prosecution case is that the accused forged the Ext.P1 office order for helping PW9 to claim the amount due to him from the

Grama Panchayat.

The evidence given by PW2 is that he had not issued any order authorising payment of money to PW9 in connection with the work of the

culvert, and he identified the Ext.P1 as the forged office order in his name. He stated that during an enquiry, he could detect that this order was

forged or made by this accused, and accordingly, he made a complaint. He also stated in evidence that the Ext.P8 letter containing the admissions

made by the accused was received by him. But when cross-examined, he stated that the Ext.P8 letter was received by post and he does not know

who wrote it or who sent it. This evidence given by PW8 will cut at the very root of the prosecution case that the Ext.P8 contains an admission

amounting to extra-judicial confession made by the accused. No value can be attached to the Ext.P8 letter. Nobody other than PW2 has identified

the writings in Ext.P8 or the signature therein, as that of the accused in this case.

Nobody knows who exactly forged the Ext.P1 office order. It is seen issued in the name of the DDP with the office endorsement of the Head

Clerk. The order contains the signature of the Head Clerk also. But PW5 stated in evidence that he had not signed such an order, and the

signature of the Head Clerk contained in Ext.P1 is not that of his. He also does not know who exactly created the Ext.P1 office order. Now what

remains is the evidence of PW9. The evidence given by PW9 is that the Ext.P1 copy of the office order was handed over to him by the accused

and it was given in a cover. His evidence is that he received it from the accused when he came at the DDP''s office along with PW8, and before

receiving the office order, PW8 had only seen gone through it and understood what it was. But the evidence of PW8 is that he had only seen the

accused handing over a cover containing something to PW9, and he had not read or understood what it was. Anyway, even assuming that the

Ext.P1 office order was handed over to PW9 by the accused, the very material question is who actually forged this office order.

Let us see what is forgery punishable under the law. Before proceeding to that aspect, let me examine the nature of the claim made by PW9 at

the Grama Panchayat. The amount disbursed to him by the Panchayat Secretary as per the Ext.P1 office order of the DDP is Rs. 7402/-. The

question is whether this amount was in fact due to him or whether he was really entitled to claim that amount from the Panchayat. On this very

material aspect, there is the evidence of PW2 and PW5. The Panchayat Secretary examined as PW7 has also given evidence that this much

amount was in fact due to PW1 from the Panchayat and the Panchayat Council had passed a resolution for payment of this money to PW9.

Recommendation was made for sanctioning the amount by the Assistant Engineer also. Thus, it stands well proved by evidence that the amount

stated in the Ext.P1 order was in fact due to PW9 from the Panchayat for the works done by him. Thus, it is quite clear that PW9 was not in any

manner illegally benefitted by the disbursement of money made to him by the Panchayat Secretary.

The forgery alleged in this case is that the accused created the Ext.P1 office order in the name of DDP to support the claim for money made by

PW9 before the Vazhikadavu Grama Panchayat. What is punishable under Section 468 I.P.C is forgery made with intent that the forged document

shall be used for the purpose of cheating. There is no such factual situation here. There is nothing to show that the Panchayat was in any manner

cheated by the accused or PW9. What PW9 in fact received from the Panchayat is the amount due to him. There is absolutely nothing to show

that the accused had received any money from PW9 or anybodyelse, or that he was in any manner benefited by issuing such a forged document.

Thus, there is nothing to prove the element of cheating here, and so the conviction under Section 468 I.P.C is liable to be set aside. Without the

elements of cheating or in the absence of any evidence to prove any sort of cheating, there cannot be a conviction under Section 468 I.P.C. Of

course, forgery of a document with the object of receiving money from any office or person is punishable under Section 467 I.P.C. If the accused

in fact forged the Ext.P1 office order, with the object of receiving money from the Panchayat, unauthorisedly or illegally, he will definitely be liable

for conviction under Section 467 I.P.C.

Forgery defined under Section 463 I.P.C is the act of making any false document or false electronic record with intent to cause damage or

injury to any person or the public, or to support any claim or title, or to cause any person to part with property etc. Making a false document for

supporting any claim will amount to forgery as defined under Section 463 I.P.C. "" Making a false document"" is further defined under Section 464

I.P.C. No doubt, to become forgery punishable under the law, the act of forgery must involve making of a false document. Section 464 I.P.C

provides that making of a false document must involve some element of fraud or dishonesty. To punish a person for the offence of forgery on the

allegation that he made a false document, the said act of the accused in making a false document must definitely involve some element of dishonesty

or fraud. If any document is created or made, without any dishonest intention or fraudulent intention, that process of making the document will not

amount to forgery as defined under Section 463 I.P.C. In this case, what is at the best proved is that the Ext.P1 forged office order was handed

over to PW9 by the accused. Even if it could be assumed for a moment that it was created by him, the next question is whether it was created or

made by the accused with any dishonest or fraudulent intention. It is here, the question assumes importance whether the accused or PW9 was in

any manner illegally benefited or unauthorisedly benefited. The material witnesses like PW2, PW5 and PW7 are consistent that the amount

received by PW9 as per the Ext.P1 order was in fact due to him from the Panchayat and it was sanctioned by the Panchayat Council on the

recommendation of the Assistant Engineer. PW9 has no case that he had made payment of any money to the accused for obtaining the Ext.P1

order or for forging such an order. Then it is not known what is the element of fraud or dishonesty in this case. If at all, the Ext.P1 order was falsely

made by the accused, he can be convicted under Section 467 I.P.C, only if he created such a document fraudulently or dishonestly, with the object

of cheating or causing wrongful loss to the Panchayat. This finding will not affect the disciplinary proceedings against him.

I find on a perusal of the entire materials that the Vazhikadavu Grama Panchayt had not in fact sustained any loss. The amount disbursed by the

Panchayat to PW9 is the amount due to PW9 for the works done by him. There is nothing to show that the Ext.P1 order was created by the

accused with the object of cheating the Panchayat or to help PW9 make a false claim before the Panchayat.

In the above circumstances, I find that there is no legal evidence in this case to prove the essentials of the act of forgery as meant and defined

under Sections 463 and 464 I.P.C. The accused can be appropriately dealt with by departmental action. He can be convicted under Sections 467

and 468 I.P.C, only if the alleged making of false document satisfies the essential elements of the offence of forgery involving the making of a

document dishonestly or fraudulently.

In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Sections 467 and 468 I.P.C and he is

acquitted of the said offences in revision. Accordingly, the conviction and sentence against him in C.C 560/1996 of the court below and confirmed

in appeal, will stand set aside, and the revision petitioner will stand released from prosecution. This judgment of acquittal will not affect the

disciplinary proceedings against the revision petitioner.