Document Fragment View

Matching Fragments

30. Now comes the very pertinent question as to whether who committed forgery of Exts.P3, P3(a), P3(b), Exts.P7, P7(a), P7( b), Exts.P8, P8(a), P8(b), Exts. P9, P9(a) and P9(b). There is no direct evidence available to show who committed forgery of the said documents. Law does not insist that forgery to be proved by direct evidence as it is difficult to adduce direct evidence to prove forgery. Thus the courts have to dwell upon the circumstantial evidence to prove the offence of forgery. Here, as already discussed, the evidence of PW1 and PW2 would show that the handwriting of A1, A2, late P.K.Manoharan and Assistant Secretary G.Sreekumari are available in the loan applications. Apart from the endorsements of Al and A2 in Exts.P3 series, 2025:KER:90041 CRL.A No.423/2016 and con. cases P7 series, P8 series and P9 series could be found from the evidence discussed in detail herein above. In Ext.P4(a) FD register entries and Ext.P10(a) FD register entries also, the handwriting of A2 Clerk and initials of Al Secretary are available. Ext.P5 series SL entries and Ext.P11(a) SL entries are also in the handwriting of A2 Clerk. The initials of Al Secretary are also available in Ext.P5 series SL register and in Ext.P11(a). PW1 categorically deposed that she was acquaintance with the handwriting of first accused Secretary and second accused Senior Clerk and all of them were working together in the said Bank. Moreover, there is no dispute regarding the handwritings of the accused Nos.1 and 2 in the respective registers and the loan applications. The evidence of PW1 and From Ext.P4(a) FD register entries, Ext.P10(a) FD register entries and from Ext.P5 series SL register entries and Ext.P11(a) SL register entry would show that without repaying the amount covered by Exts.P3, P7, P8 and P9 loan applications, fixed deposit amount covered by Exts.P4(a) and P10(a) were disbursed to the depositor. The amount covered by Ext.P4(a) was disbursed on 04.05.1995 and amount covered by Ext.P10(a) FD was disbursed on 25.01.1999. On 04.05.1995 and 2025:KER:90041 CRL.A No.423/2016 and con. cases 25.01.1999, both the accused were working in the Bank. But at the same time, Exts.P4(a) FD and P10(a) FD were released to the deposit holder without clearing the secured loans availed from the said two fixed deposits. The evidence of PW1 Internal Auditor is that without clearing the SL amounts, FD receipt amount would not be disbursed. Further, the evidence of PW1 would show that if a secured loan was issued on the security of a FD certificate, the same should be noted in the SL register and in the FD register. Here, admittedly, the issuance of Exts.P3, P7, P8 and P9 secured loans are noted in the concerned secured loan registers, viz., Exts.P5 and P11. But at the same time, the same was willfully not noted in Ext.P4(a) FD register and in Ext.P10(a) FD register. Even though the learned counsel for the 2nd accused argued that the same only as an omission, the evidence available on record is sufficient to see that without clearing the above referred four secured loans, Ext.P4(a) FD and Ext.P10(a) FD amounts were disbursed to the FD holder after closing the fixed deposit and thereby loss sustained to the Bank in respect of the amount covered by the applications.

35. In these cases, the Special Court found that the evidence discussed would categorically prove that accused Nos.1 and 2 along with deceased P.K.Manoharan and Assistant Secretary G.Sreekumari hatched criminal conspiracy and in pursuance of the said conspiracy, they had misappropriated the amount covered by Exts.P3, P7, P8 and P9 loan applications, that is, SL Nos.280, 287, 288 and 480 respectively after forging the above documents. Thus, a total amount of Rs.80,000/- was 2025:KER:90041 CRL.A No.423/2016 and con. cases misappropriated and for that purpose they committed forgery of documents marked as Exts.P3, P3(a), P3(b), Exts.P7, P7(a), P7( b), Exts.P8, P8(a), P8(b), Exts. P9, P9(a) and P9(b).

39. Further it is the settled law that every false or fabricated document is not a forged document. There must be acts that constitute the 2025:KER:90041 CRL.A No.423/2016 and con. cases document as a false or fabricated one, that is to say, the case must fall within the definition of making false document under Section 464 of the IPC and such false document must also possess the character of tendency described under Section 463 of IPC. It is not necessary that the document should be published or made in the name of a really existing person (vide explanation 2). But it must either appear on its face to be, in fact, on which, if true, would possess some legal validity. Or in other words, must be legally capable of effecting the fraudulent intent. Until a false document is made either in whole or in part, there cannot be any forgery. Mere preparation for the commission of a possible crime of forgery without a false document in part or in whole cannot itself be either forgery or abetment of forgery. To put it otherwise, it is not correct to say that an offence of forgery in terms of Section 464 of IPC comes into being when a person makes a false document and not when a person causes to be made a false document. No word in an enactment is surplusage. The law-making authority, in its wisdom, has used the word "makes" in addition to the other words, such as "signs, seals and executes". The said word has, therefore, to be interpreted independently 2025:KER:90041 CRL.A No.423/2016 and con. cases of the other words referred above. Making a document is different from causing it to be made. As per explanation 2 to Section 464 of IPC, it is clarified that for constituting offence under Section 464 of IPC, it is imperative that a false document is made and the accused person is the maker of the same.

41. In the decision reported in Shri Sukhbir Singh Badal v. Balwant Singh Khera and Others reported in 2023 KHC 6479, the Apex Court considered the offence of forgery in paragraph No.5.7 and held as under:

"whoever makes any false documents, 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", he is said to have committed the offence of forgery. Making a false document is defined under S.464 IPC. Therefore, for the offence of forgery, there must be making of a false document with intent to cause damage or injury to the public or to any person. Therefore, making the false document is sine qua non. Identical question came to be considered by this Court in the case of Mohammed Ibrahim & Ors. (supra). While interpreting S.464 and S.471 IPC and other relevant provisions of IPC, in paragraphs 13 an d 14, it is observed and held as under:- "13. The 2025:KER:90041 CRL.A No.423/2016 and con. cases condition precedent for an offence under S.467 and S.471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused. 14. An analysis of S.464 of the Penal Code shows that it divides false documents into three categories: