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(v) A. I. R. 1967 Cal. 205 (206)

(vi) A.I. R. 1965 Raj 1210 (142)

(vii) A. I. R. 1961 Cl. 359

8. On the other hand Ld counsel for the accused submits that first of all the present petition has been filed belatedly moreover accused cannot be subjected to double jeopardised. It is also submitted that alleged forgery and cheating has not been proved.

9. Having heard the submission and having gone through the record carefully. It is pertinent to mention that present petition has been filed for alleged commission of cheating, forgery and using of forged documents. In such circumstance the first and foremost question to be seen on the side of the charge is whether keeping in view the pre charge evidence and the facts and circumstances of the case prima facie ingredients of cheating or forgery has been established or not. It is alleged that in the proceedings before SDM court, accused has placed on record certain documents in which he has claimed himself to be owner of the property bearing plot on F-1/343, Sunder Nagri. It is alleged that those documents were forged to make accused Kanchi Lal as owner whereas he was not actually the owner. It is also evident from the proceedings record of SDM that the proceedings were dropped as in the process accused handed over the possession of the property in question to the complainant and question now only is to be seen whether those documents are forged or not by the accused. Admittedly the documents on the record of SDM are photocopy, original documents have not seen the light of the day as it is not produced by the accused. Now on the basis of photocopy of the documents whether the forgery has been proved or not Section 463 of the Indian Penal Code defines the offence of `forgery' as:

(i) is the document false

(ii) is it made by the accused and

(iii) is it made with an intent to defraud.

If at all the questions are answered in the affirmative, the accused is guilty. In order to constitute an offence of forgery the documents must be made dishonestly or fraudulently. But dishonest or fraudulent are not tautological. Fraudulent does not imply the deprivation of property or an element of injury. In order to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other. Every forgery postulates a false document either in whole or in part, however, small. The intent to commit forgery involves an intent to cause injury. A person makes a false document who dishonestly or fraudulently signs with an intent or cause to believe that the document was signed by a person whom he knows it was not signed. A false description makes a document of forgery when it is found that the accused by giving such false description intended to make out or wanted it to believe that it was not he that was executing the document but another person.

It may also be stated that Section 463 defines a forgery simpliciter, whereas Section 465 to 471 define an aggravated form of forgery. Section 467 relates to forgery of such documents as valuable securities and of other documents mentioned. Section 468 deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent. Section 471 deals with using as genuine a forged document. For the purpose of convicting an accused under Section 467 read with Section 471 IPC, it has to be shown that an accused either knew or has reason to believe that the document was forged. In "Karnati Bhaskar v. State of A.P." 2000 CRI. L. J. 3983 it was held that in a given case if a document is forged and a party who is likely to be affected by the creation of such a document makes complaint, before such a document is actually used by the maker for deriving any benefit out of such a document by producing the same before a Court or some other public authority, the prosecution would certainly be legal. If such a document is to be produced before a Court subsequent to the initiation of the prosecution, there is nothing in the law, which prohibits the continuation of the prosecution. Therefore, it would be illogical to think that the Parliament intended to prohibit prosecution at the instance of a private party for an offence of forgery merely because such a document was produced or given in evidence before a Court by the time the person effected by such document came to know of the offence. The maintainability of prosecution for an offence cannot merely depend on an accident as to the point of time at which the prosecution is sought to be launched unless such a stipulation is demonstrably made to achieve some larger public purpose. Because in theory, all law is always made for achieving some public good and for the benefit of the body politic to which it is made applicable.

It was observed A man can be said to have committed a forgery of document even if he himself is the author and signatory of the document. Illustration (h) does not require that he should sign a document making it to be believed that somebody else has signed the same or that he was authorized to sign the same on somebody else's behalf. From the two illustrations (h) and (e) and Explanation 1 it is clear that legislature intended to cover cases under the offence of forgery whenever the person was the creator of a document even though the document was made by himself in his own name and signed in his own name. These two illustrations with Explanation 1, therefore, make the scope of the definition "Making a false document" very wide and it cannot be said that part Ist of Section 464 is the only provision defining words "Making the false document".