Document Fragment View

Matching Fragments

VII. That Ld. Trial Court did not consider that no plausible explanation was put-forth by accused during entire evidence as to why he prepared said cash memos showing sale of foreign currency on behalf of Complainant.

VIII. That Ld. Trial Court did not consider that forgery of documents for the purpose of cheating committed by the accused was further corroborated through witnesses PW9 or PW13 vide document Ex.PW9/C1 to Ex.PW9/C15. That PW9 and PW13 are one and the same person examined under different numbering. Accused admitted in his statement recorded u/s. 313 Cr. P.C. that the aforesaid documents/memos are matter of record.

46. Sec. 471 IPC states that :-

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

47. The offence u/sec. 467 IPC is an aggravated form of the preceding section. The forged document must be one of those mentioned in the section. Sec. 468 IPC punishes forgery committed for the purpose of cheating. To bring a document within the definition of a forged document, it is required firstly to be shown that the false document was covered u/sec. 464 IPC and even mere proving of making a false document without establishing the intention of the maker is not sufficient to constitute an offence and unless the forgery of a document is proved, it cannot be said that the said forged document is used as genuine one. Therefore, to constitute an offence u/sec. 471 IPC, first an offence u/sec. 468 IPC has be established. Mere preparation of document under once own signature and CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.35 of 62 writings by making false averments therein does not fall within the definition of forgery. The ingredient of the offence u/sec. 468 IPC is committing of forgery with a particular intent, that intent being that the document forged should be used for the purpose of cheating. The Section does not require that accused should actually commit the offence of cheating. Forgery is usually an act done in furtherance of some other criminal design. What is material is the intention or purpose of the offender in committing forgery.

12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is CA No.191/2023, FIR No. 222/2016 State Vs. Harish Chandra PS Defence Colony Page No.40 of 62 executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.

26. The definition of "false document" is a part of the definition of "forgery". Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.