SURENDRA NATH GHOSE Vs. EMPEROR

JUDGEMENT

(1.) The circumstances under which the appellant, Surendra Nath Ghose, has been convicted of an offence under Section 471 of the Indian Penal Code, have been narrated in the opinions recorded by my learned brothers Harington and Teunon, and need not be recapitulated at full length. On the 4 August, 1909, the appellant deposed as a witness in a case under Section 145 of the Criminal Procedure Code in which he himself was a party. He stated, inter alia, as follows: "I am a witness to the kabuliats Exhibits I and II." Later on, in cross-examination he qualified the statement to some extent: "I was not a writing witness in any of the kabuliats." The kabuliats had been executed on the 15 March and 3 April 1898, and had been registered on the 15 April of that year. Certified copies from the Registration Office were produced, and these established conclusively that the name of the appellant was not on the original documents as an attesting witness before their registration; in other words, that subsequent to the execution and registration of the documents, the name of the appellant was inserted in the list of attesting witnesses at the foot of each document. There is evidence to show that such insertion was made by the appellant himself. The position, therefore, is that the appellant placed his name on the documents as an attesting witness after their execution and registration. The theory of the prosecution is that he did tin's with the intention to have it believed that he had witnessed the execution of the documents. It is conceded that his name alone appeared on the documents, and that there was no date affixed thereto; on the other hand, there is no allegation that the appellant was actually present at the time of the execution of the documents. Upon these facts, the charge was brought against the appellant that he had dishonestly used as genuine documents (that is, the kabuliats) in which he had forged his name as an attesting witness. The Sessions Judge, on the basis of an unanimous verdict of a jury, has convicted the appellant under Section 471 of the Indian Penal Code, and sentenced him to under go rigorous imprisonment for two years. Upon appeal preferred to this Court, my learned brothers Harington and Teunon have differed in opinion as to the legality of this conviction. The matter has, therefore, been referred to me under Section 429 of the Criminal Procedure Code.

(2.) On behalf of the appellant, the conviction has been assailed on the ground that the elements which must be proved before a conviction under Section 471 can be made, have not been established. It has been contended that the case is covered by neither the first nor the second clause of Section 464 - not the first, because there is nothing, to show that any part of a document was dishonestly or fraudulently made by the appellant with the intention of causing it to be believed that such part was made at a time when he knew that it was not made; nor the second, because the appellant did not dishonestly or fraudulently alter a document in any material part thereof. These positions have been strenuously controverted on behalf of the Crown, and an attempt has been made to support the conviction as justified by both the first and second clauses of Section 164.

(3.) In so far as the first clause of Section 464 is concerned, to bring; the case within its scope, it has to be proved that the act was done dishonestly or fraudulently. "Dishonestly" is defined in Section 24, which provides that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly." "Fraudulently" is defined in Section 25 which provides that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The question, therefore, arises whether, when the appellant inserted his name as an attesting witness in the kabuliats, he could be said to have done so dishonestly or fraudulently, In my opinion, he cannot be held to have done the act either dishonestly or fraudulently within the meaning of these words as defined in Secs.24 and 25 of the Indian Penal Code. I am unable to appreciate how it can be seriously maintained that, when the appellant inserted his name as an attesting witness his intention was to cause wrongful gain to one person and wrongful loss to another person. The insertion of his name as an attesting witness may have increased the apparent evidence of the genuineness of the instrument. But the insertion of the name by itself could not have been intended to cause wrongful gain to one person or wrongful loss to another person. It seems to me further to be obvious that the insertion of the name of the appellant as an attesting witness, could not have been done with intent to defraud. The expression "intent to defraud" implies conduct coupled with intention to deceive and thereby to injure; in other words, "defraud" involves two conceptions, namely, deceit and injury to the person deceiverd, that is, infringement of some legal, right possessed by him, but not necessarily deprivation of property. This would be so, whether we accept the restricted interpretation of "defraud" given by Mr. Justice Banerjee in Queen-Empress V/s. Muhammad Saeed Khan (1898) I.L.R. 21 All. 113 and by Sir James Stephen in his History of Criminal Law, Vol. II, 121; Vol. Ill, 187, on adopt the wider interpretation laid down in Queen-Empress v. Abbas Ali (1896) I.L.R. 25 Calc. 512, Abdul Rajak V/s. Queen-Empress (1895) P.R. Cr. 2, and Reg. V/s. Toshach (1849) 4 Cox. C.C. 38. Now, the instruments in this case were admittedly genuine and operative in law. If therefore, when produced in a Court of Law they were found to be genuine, it could not possibly be maintained that any person would be defrauded thereby. Let us assume for a moment that an unwary Judge relied upon the statements of the appellant", treated him as an attesting witness, and on the faith of his allegation, found the instruments to be genuine, surely nobody would be defrauded thereby, whether we interpret the word "defraud" in its wider or narrower sense; the person against whom the kabuliats might be successfully used could not maintain the position that there had been any injury to him or infraction of his rights. In my opinion, it is clear that the appellant had no intent to defraud when he inserted his name as an attesting witness in the documents in question. In popular phraseology, perhaps, his conduct may be described as dishonest and fraudulent, but his act does not fall within the scope of the definitions given in Secs.24 and 25 of the Indian Penal Code. The essence of the matter is that, although he might have intended that it should be believed that he was an attesting witness, he could not have thereby intended to cause wrongful gain to one person or wrongful loss to another person or to defraud any person by his act. I am further of opinion that the case does not fall within the first clause of Section 464 of the Indian Penal Code, because there is nothing to justify the inference that, the appellant intended it to be believed, that the document was made or his signature was put at a time when he knew it was not made or signed. His act is certainly consistent with the hypothesis that he intended it to be believed, that he would be able, if called as a witness to prove the genuineness of the instruments, either because he had been present at the execution or had, at some occasion subsequent to the execution, received an acknowledgment from the executant as to the genuineness of his signature. In so far, therefore, as the contention on behalf of the Crown that the case falls within the first clause of Section 464 is concerned, it must, in my opinion, be overruled.