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1961 Supreme(Guj) 22
Gujarat High Court
Judgename :V.B.RAJU
MOTISING GAMBHIRSING - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 468 of 1960
Decided On : 02/24/1961
Headnote:
Indian Penal Code,1860 - Section 464 - Evidence Act - Section 157 - False documents - Appellant was entrusted with certain amount of money for distribution to cotton growers within his range of three villages - One of these persons was one and amount payable - It is prosecution case that without paying to appellant prepared a false document purporting to be a receipt by and sent it office - It was also case of prosecution that had died - It was also prosecution case that receipt was attested by appellant in column was therefore charged with having forged a document purporting to be a valuable security namely receipt for purporting to have been signed by one and attested by him with intent to commit fraud and to cause damage to son of deceased and to Government - Prosecution relied mainly on evidence of complainant who is a Circle Inspector - Held, Judges were dealing with a case in which accused were not charged and they observed that accused should have been charged Judges did not therefore decide any question which arose before them as to whether in such a case a person would be guilty of forgery - Merely made some observations In any case with great respect to Judges of the Calcutta High Court for reasons given above court hold that a person who merely attests a forged signature on a document of receipt cannot be convicted of forgery - In case of a person who merely attests a document court have to see if the requirements of relating to `part of a document are satisfied - In case of a charge of forgery relating to a part of a document it must be proved that accused made signed sealed or executed that part of document that part of document was not made signed sealed or executed by or by authority of person by whom or by whose authority it purports to have been made signed sealed or executed that the accused had knowledge of that sealed or executed by or by authority of a person by whom or by whose authority he knows it was not made signed sealed or executed and that there was dishonesty or fraud on part of accused - If court look at judgment in that case which is given by Calcutta High Court we find that Judges themselves felt that there was some room for argument on this point - It was observed as follows in that case certainly think though it may be not without some room for argument that if a person falsely puts his name down as an attesting witness to signature of who he knows has never signed at all is guilty of forgery just as well as scribe - There may be room for argument - petition allowed
( 1 ) THIS is an appeal against the judgment of the learned Additional Sessions Judge Baroda in Sessions Case No. 26 of 1960 convicting the appellant under sec. 467 I. P. Code and sentencing him to rigorous imprisonment for six months.
( 2 ) THE prosecution case was that the appellant who was a Talati in charge of Manjrol Saja in Sinor Taluka was entrusted with certain amount of money in 1956 for distribution to cotton growers within his range of three villages. One of these persons was one Hirabhai Manorbhai and the amount payable to him was Rs. 0-10-0. It is the prosecution case that without paying the amount of Rs. 0-10-0 to Hirabhai Manorbhai the appellant prepared a false document purporting to be a receipt by Hirabhai Manorbhai for Rs. 0-10-0 and sent it to the Taluka office. It was also the case of the prosecution that Hirabhai Manorbhai had died in 1950. It was also the prosecution case that the receipt was attested by the appellant in column 5 He was therefore charged with having forged a document purporting to be a valuable security namely the receipt for Rs. 0-10-0 purporting to have been signed by one Hirabhai Manorbhai of Sinor (who was then dead) and attested by him with intent to commit fraud and to cause damage to the son of the deceased and to the Government.
( 3 ) AT the trial the prosecution relied on Ex. 11 the alleged document purporting to be a receipt which consisted of various entries. It consisted of 5 columns. In the first three columns were entered the serial No. name of the person and the amount paid. The fourth column was meant for the signature of receiver. The fifth column contained certain initials. The prosecution relied mainly on the evidence of the complainant who is a Circle Inspector of Dwarkadas of the revenue clerk in 1956 and of the Mahalkari Ananatrao (Ex. 15 ).
( 4 ) THE accused in his examination at the trial stated that in the list the signature of Hirabhai Manorbhai had not been taken in his presence and that he did not attest it. He also admitted that the attestation opposite the signature of Hirabhai Manorbhai in Ex. 12 which is the entry at serial No. 37 was in his hand writing.
( 5 ) ON this evidence the learned Sessions Judge held that the appellant had made a false statement purporting to be a valuable security with intent to cause damage to any person or to the public or with intent to commit fraud. Thereupon he convicted the appellant as stated above.
( 6 ) IN appeal it is contended by the learned counsel for the appellant that the attestation is not against entry No. 37 relating to Hirabhai Manorbhai that item 37 is 14th item in column 2 whereas the signature in column 4 is item No. 16 and attestation is item No. 15. It is therefore contended that the attestation alleged to be that of the appellant did not really purport to attest the alleged signature of Hirabhai Manorbhai. It is also contended that Ex. 11 the document on which the prosecution relied is not the original document but only an office copy kept in the Mahalkaris office. According to the learned counsel the original document was sent to the Mahalkaris office who in turn forwarded it to the Accountant General as required by the rules. It is therefore contended that Ex. 11 is not the original document but a copy. Finally it is contended that the appellant did not make any false document within the meaning of sec. 464 Indian Penal Code.
( 7 ) I hold that there is no merit in the first contention but I hold that the other contentions are well founded and allow the appeal for the following reasons.
( 8 ) AS regards the first contention. Dwarkadas (Ex. 9) has deposed that entries in columns 1 to 3 of Ex. 11 are in the handwriting of the accused. The first three columns of entry No. 37 are also in the handwriting of the accused. He stated that he cannot say in whose handwriting the signature in column 4 of entry No. 37 is. The attestation is in the handwriting of the accused. That the attestation against
