Kerala High Court
K.M. Mathew vs P.K. George on 25 January, 1989
Equivalent citations: [1991]71COMPCAS568(KER)
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. By writing a false statement in an affidavit or other document, does the maker thereof commit the offence of forgery ? This question has turned out ultimately to be the decisive one in this appeal filed by a complainant against the order of acquittal. In the complaint, it was alleged that the accused has committed the offence under Sections 465 and 471 of the Indian Penal Code in respect of an affidavit filed before a returning officer appointed to hold elections to the board of directors of a co-operative society. The trial Magistrate, after preliminary enquiry, framed a charge against the accused for the aforesaid offences, but on the conclusion of the trial, he passed a verdict of not guilty. Hence, this appeal by the complainant with special leave.
2. The complainant is a member of Koodaranhi Service Co-operative Bank Ltd, (for short "the bank"). The accused was the president of the committee (board of directors, as it is termed differently) of the bank. When the term of the committee expired, a fresh election was to be held for which notification was published inviting nominations. A returning officer for the said purpose was appointed. As per Section 28(2)(b) of the Kerala Cooperative Societies Act, 1969, a candidate is disqualified for election to the committee if he is already a member of two or more societies of different types. Every candidate has to file an affidavit along with the nomination paper, swearing, inter alia, to the fact that he is not a member of two or more societies of different type or different types. The accused filed his nomination and along with it filed an affidavit which was sworn to before a gazetted officer. The affidavit which is in a printed form has been marked as exhibit P-4 in this case. The fourth clause of the affidavit is to the effect that the deponent is not a member of two or more societies of different type or types. It is alleged in the complaint that the aforesaid statement in exhibit P-4 is false since the accused was already the president of the Calicut Wholesale Co-operative Consumers' Store ("Consumers' Store" for short) as well as the Koodaranhi Rural Housing Co-operative Society ("Housing Society" for short). The prosecution was thus based on the allegation that the complainant made a false statement in exhibit P-4 fraudulently with a view to gain the office.
3. The trial court acquitted the accused on two grounds. The first is that the accused is not a member of the Consumers' Store but only a delegate thereto from the Housing Society. In this context, it is to be mentioned that the Housing Society is one of the affiliated members of the Consumers' Store and such membership can be operated through a delegate sent from the member society. It was proved in the case that the accused was the delegate representing the Housing Society in the Consumers' Store. The other ground on which the trial Magistrate acquitted the accused is that exhibit P-4 was not properly proved by examining the officer before whom the affidavit was sworn to. Section 68 of the Evidence Act has been referred to by the learned Magistrate in support of his reasoning on this score.
4. Learned counsel for the appellant assailed the reasoning of the learned Magistrate on both the aforesaid grounds. It is pointed out that though the accused is not an ordinary member of the society, he is a member of the board of directors of the Consumers' Store. However, it is not disputed that the accused is only a delegate to the Consumers' Store from the Housing Society. But, according to counsel, it is not necessary that one should be an ordinary member of the society to become a member of the committee. Regarding the second ground, learned counsel contended that Section 68 of the Evidence Act has no application since the affidavit in question is not required by law to be attested. Attestation is different from authentication and when an officer authenticates an affidavit, he only declares that the deponent has sworn to it before him, contended counsel. Hence, it was argued that Section 68 of the Evidence Act does riot come into the picture at all.
5. It is argued by learned counsel for the accused, on the other hand, that no forgery is involved in exhibit P-4 affidavit even if the allegation of the complainant is true. If there is no forgery, then, there is no question of convicting the accused for the offences charged. If this argument gains acceptance, there is no need to consider the sustainability of the two grounds adverted to by the learned Magistrate. Hence, I shall now consider whether there is any forgery.
"Forgery" is. defined in Section 463 of the Indian Penal Code. It reads thus :
"Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
6. The above definition shows that making a false document is the soul of forgery. The expression "making a false document" is not to be understood in its literal sense. It has a special connotation in the Code. The contours of the said expression are delineated in Section 464 of the Indian Penal Code. It consists of three divisions and the document should fall at least in one of those three divisions for making it a false document. The first division relates to the making, signing, sealing or executing a document with the intention of causing it to be believed that such document was made on the authority of a person by whom the maker knows that it was not made. The second division relates to the dishonest or fraudulent cancellation or alteration of a document without lawful authority. The third division deals with the act of causing another person to execute or alter a document with the knowledge that the maker thereof does not know the contents of the document or the nature of the alteration.
7. There can possibly be no contention that the questioned document in this case would ever fall within the purview of the second and third divisions. Hence, the only question to be considered is whether the first division in Section 464 would apply to exhibit P-4. In order to constitute a false document as per the first division, the document must be purported to have been signed, made or sealed by a person who did not in fact do it. The mere fact that a document contains some false recitals or untrue statements would not make it a false document within the meaning of the section. For example, a plaint, or a written statement, or art application may very often contain averments which may be untrue. Such untrue statements in pleadings or applications would not be sufficient to make them forged documents. Similarly, the affidavits, though supposed to contain only true statements, may contain untrue statements. The deponents in such cases may perhaps, be liable for other offences, but not the offence of forgery.
8. In Motisinh Gambhirsinh v. State, AIR 1961 Guj 117, V. B. Raju J. had pointed out that "the mere making of a false statement in a document would not come within Section 464 and would not amount to forgery". A Division Bench of the Madras High Court in Adaikalammai v. Raman, [1909] ILR 32 Mad 90, had to consider a deed of mortgage executed by a person who described himself as the son of a certain other person. He was not the son of that other person. Since there was a difference of opinion between the two judges of the Division Bench, the case was referred to a third judge who upheld the view that "the assertion of a false claim in a document will not by itself constitute the document false since there was no intention of causing a belief that it was executed by some other person, real or fictitious": A Division Bench of the Nagpur High Court has held in State-Government, M. P. v. Hifzul Rahman, AIR 1952 Nag 12, that it is immaterial, for the purpose of forgery, that the document contains recitals which may be false in certain respects. The same view was expressed in Mupparaju v. Pinnika, ILR 1958 AP 917. These decisions lend support to the position that, by merely stating something falsely in a document, one does not create a false document as envisaged in Section 464 of the Indian Penal Code. Therefore, no offence of forgery can be found with respect to exhibit P-4 affidavit.
9. The order of acquittal can thus be confirmed on a different ground. In this view, it is unnecessary to consider the sustainability of the reasons mentioned by the trial court. The appeal is, accordingly, dismissed.