The prosecution must establish the forgery of a document before convicting under Section 471, I.P.C.

This revision is directed, impugning the judgment of conviction delivered by 4th Additional Sessions Judge, Ernakulam in Crl. Appeal 46/90.

2. The revision petitioner was found guilty under Sections 465, 467, read with 109, I.P.C. and thereby he was sentenced to undergo imprisonment. Questioning the above judgment, the revision petitioner preferred the above said appeal before the 4th Addl. Sessions Judge, Ernakulam, who allowed the appeal by acquitting the revision petitioner. The defacto complainant, examined as PW 1, preferred a criminal revision before this Court, 85 of 1991. This Court, in the said revision, remanded the matter to the Sessions Judge, for fresh disposal, in accordance with law. The 4th Addl. Sessions Judge, Ernakulam, after remand, found the revision petitioner guilty, under Section 471, I.P.C. and thereby sentenced him to undergo imprisonment for two years. Now the point is whether the judgment of the Sessions Judge, convicting the revision petitioner under Section 471, I.P.C. can be sustained.

3. The learned counsel appearing for the revision petitioner, at the outset, raised a question of law, with regard to the conviction rendered by the Sessions Judge. His contention would be that originally the revision petitioner was found guilty under Sections 465 and 467 read with 109, I.P.C. and those convictions were set aside by the Sessions Judge. For the above offences alone, the charges were framed by the Magistrate, who tried the case. Therefore, even after the remand, the Sessions Judge could not convict the revision petitioner under Section 471, I.P.C. when the prosecution has not established as to, who has committed the forgery of the document. In support of this submission he relies upon the judgment of the Supreme Court reported at page 1786 (sic), 1992 SCC (Cri) L.T. Commr Bombay v. Gwalior Rayon Silk Mfg. Co. Ltd. There, the Supreme Court has held.

"When an accused person has been brought under Section 471, I.P.C., the prosecution ought to have established that a forged document has been used by him as a genuine one. In the absence of the proof with regard to the forgery, which is attracted by Section 467, I.P.C. then no conviction under Section 471 would be based on."

In the instant case before me, according to the prosecution case, Ext. P8 sale deed was a forged document brought into light by the revision petitioner on 6-12-83. No doubt, the property covered by Ext. P8 was originally purchased by PW 1 in the year 1960. Now, the grievancne of PW 2 (the defacto complainant) would be that it was not he, who executed Ext. P8, in favour of the accused/revision petitioner. The further case of the prosecution would be that on the basis of Ext. P8, the revision petitioner sold the property to PW 7. PW 7, in this context would speak that he purchased property from the revision petitioner and the original title deed of the said property is Ext. P8. Therefore, now the prosecution is expected to establish that Ext. P8 document was forged by the revision petitioner/accused. Then only Section 471 is attracted to be established by the prosecution. The specimen thumb impressions of PW 1 and the revision petitioner were compared with the thum impression found in Ext. P8 and as per the expert's opinion, given in Exts. P 20 and P 21, the left thumb impression in Ext. P8 is not that of either PW 1 or the revision petitioner/accused. So, in that situation, the burden lies on the prosecution to establish that the thumb impression found in Ext. P8 was put at the institution of the revision petitioner. In other words, such document was forged with the connivance of the revision petitioner and then such document was used as genuine one in transferring the property to PW 7. In the instant case, practically, there is no evidence as to, who forged Ext. P8. The view of the Sessions Court for fastening the criminal liability under Section 471, (the using of the forged document) is not correct, in view of the proposi