G S RAMASAMI IYER Vs. EMPEROR

JUDGEMENT

(1.) The appellant has been convicted of the offence of forgery of a valuable security under Section 107 of the Indian Panel Code or in the alternative of being in possession of a valuable security knowing it to be forged and intending to use it as genuine under Section 474 of the Indian Penal Code.

(2.) The facts are complicated and they may be shortly stated thus: (a) The appellant, G.S. Ramasami Iyer, is the son-in-law of prosecution 2nd witness, Vengappa Aiyar. Prosecution 2nd witness s daughter, accused s first wife, died in 1910, leaving a minor male child Narayanasami. During her lifetime, the accused s family consisting of the accused, his father and his two brothers became involved in debts and all their lands in the Ganapathi Agraharam and Manalur villages were brought to sale in Court auction by their creditors. They were purchased in the name of one Aiyyasami Aiyar, the benamidar of the accused s father-in-law, Vengappa Aiyar (prosecution 2nd witness), and the said benami purchaser afterwards gave a release in favour of prosecution 2nd witnsss. It cannot be said on the facts that the accused s father-in-law made the purchase as benamidar of the members of the accused s family in 1908, but there can be no doubt that there was some understanding between the accused and his father-in- law that the properties should come back to the accused or his family on prosecution 2nd witness being recouped all the expenses he incurred in making the purchase in Court auction and which he might incur in discharging the mortgage and other debts due by the accused s family. (b) As I said, all this took place about the year 1908. The accused s marriage with his first wife took place about the year 1897. Prosecution 2nd witness s son, prosecution 3rd witness, says "accused did not live in our family after his marriage, but sometimes with us and sometimes with his own family.... There was no ill- feeling between accused and his father about his living with us. Accused managed the auctioned lands while he lived in our family. In 1912, Ramaswami Aiyar, Sub- Inspector of Police, came to hold an inquiry. Then some of the lands were under cultivation, we and accused were cultivating them." Prosecution 5th witness himself says that the accused lived in prosecution 2nd witness s family till his wife died and that when accused was in his (prosecution 2nd witness s) family, he was managing the lands mentioned in Exhibit B (Exhibit B being the document alleged to have been altered by forgery). Mr. G.S. Ramachandra Aiyar, a Vakil of this High Court of fourteen years standing, is accused s sister s husband. He says as defence 4th witness: "Till 1905, accused was living in his own family house. After that he lived both in prosecution 2nd witness s family and in his own family house. There was a quarrel between accused and his father as accused wanted to have all the family properties for himself. During the negotiations of Exhibit III, prosecution 2nd witness said he originally sought the lands at the auction for the benefit of accused s family. He gave me to understand that the enjoyment was with the accused. While accused s wife lived, prosecution 2nd witness and he were on good terms. Prosecution 2nd witness in 1912 appeared to be a trustee, the beneficiary being accused s family and prosecution 2nd witness had to be reimbursed in a sum of about Rs. 12,000. I understood the accused had the benefit of the produce of the lands." It is admitted that in the negotiations which led to the writing of Exhibit B in 1912, prosecution 2nd witness agreed to convey the lands for Rs. 12,000 to the accused s family though the lands, etc., were worth Rs. 30,000, He has in February 1917 given up the lands, etc., agreeing to receive Rs. 19,000 (see Exhibit IV). (c) The accused s minor son has always been living with his maternal grandfather. After accused s first wife s death in 1910 the feelings between the father-in-law and the son-in-law became estranged and in respect of the properties which had been purchased in Court auction by prosecution 2nd witness but which were allowed to be enjoyed by the accused, Criminal and possession cases were instituted between the parties beginning in November 910 (see Exhibit V). Both sides being respectably connected, relations intervend in 1912. On 25th July 1912 an agreement was drawn up as between accused and his father-in-law, Vengappa Aiyar. That agreement fell through and then the parties went before Mr. G.S. Ramachandra Aiyar, High Court Vakil, already referred to (defence 4th witness), in August 1912. He made a settlement which was signed in his presence by prosecution 2nd witness, by the accused, by the accused s father and by the accused s two brothers. (I might add here that the accused s first wife left a daughter who was married to prosecution 2nd witness s son s son). Exhibit III is to the effect that on payment of Rs. 12,000 to the father-in-law (Vengappa Aiyar) Vengappa Aiyar should convey half the lands to his deceased daughter s son, that is, accused s son, Narayanaswami, and the other half to the other members of the accused s family after 400 gulies were given away to accused s mother. (d) Even this agreement seems to have fallen through and then we come to the disputed document Exhibit B, dated 11th December 1912, in which the accused s mother s name which appears in Exhibit III is left out and the Rs. 12,000 mentioned in Exhibit III is increased to Rs. 12,250 by the addition of Rs. 250 for interest between the date3 of Exhibits III and B. (e) This document, Exhibit B, begins by calling itself an agreement between the accused s father-in law, Vengappa Aiyar, on the one hand, and four persons, namely, accused s father, accused and accused s two brothers, on the other hand. It is wholly in accused s handwriting. Prosecution 1st witness himself says: "the document is not complete unless accused s father and brothers sign" (the signatures of accused s father-in-law and accused alone now appear in the document). Prosecution 3rd witness says: "It was arranged that every one of the five parties should sign the agreement, Exhibit B, before it was complete." Thus the prosecution witnesses themselves admit that the document was to have no legal effect till the five signed. The accused was entrusted with the duty of persuading his father and two brothers to sign and until their signatures were put in, it was to have no legal effect (see also Exhibit IV, wherein paragraph No. 11 Exhibit B is admitted by everybody interested to be an incomplete document, void and of no effect). (f) Prosecution 1st witness says "on the night of the 12th December" (the day after the writing of Exhibit B) "I was sitting with accused s father, leaving the document on a table. The accused took me out of the house and told me that some jewels, etc., of his family were with Vengappa Aiyar, prosecution 2nd witness, that they should be given to him and that the document should undertake to deliver these to him, failing which his father and brothers could not sign." Prosecution 2nd witness, the father-in-law, says: "I can t say if accused s name was cut on his vessels. I do not know if accused s family had such vessels. I gave my daughter to the accused as I thought he was rich. None of his jewels, vessels, etc., came to my house when he fell into financial trouble. Accused s wife died in my house. She was wearing jewels then. I did not take possession of them. I don t know if the document was read out to accused s father and brothers or if they approved. When Exhibit B was being written accused was making suggestions, I don t know what." Prosecution 3rd witness, the son of prosecution 2nd witness, is more frank than his father and says: "My elder sister," that is accused s wife, had jewels worth Rs. 1,600. She died in my house. We brought her there because the accused s family were in financial straits. But he went on to say that when his sister died, she wore jewels worth only Rs. 100 and that the other jewels had been sold without her mentioning the fact to them. Prosecution 5th witness says: "Objections were raised about vessels and jewels during the negotiations. Tirukkalavur Subbier, defence 5th witness, was present then. I forget if prosecution 2nd witness denied possession of the jewels and vessels. I have seen her (accused s wife) wear jewels as a rich man s daughter does." Then Tirukkalavur Subbier, a respectable independent gentleman, says: "Accused and prosecution 2nd witness spoke about vessels and jewels of the family. Prosecution 2nd witness consented to return them. Prosecution 1st witness was then present. Prosecution 2nd witness touched accused on the head and said he would not deceive him. There was talk that accused s brothers and father should sign to complete the document. After it was written, accused read it. It is Exhibit B. All disputed matters were dealt with in it. There was a provision regarding the return of the vessels, etc. Prosecution 1st witness and accused had each brought a draft. I heard both read." Defence 6th witness says: "Accused was arrested for a decree debt. His wife wore jewels of over Rs. 2,000. When he become straitened in circumstances he removed his moveables to Kallur," that is, prosecution 2nd witness s village, accused s village being Ganapathy Agraharam. "His wife died there and her jewels were there." It seems to me clear that the accused and his father wanted that a provision should be made in Exhibit B for the return of the wife s jewels and of the accused s vessels which had been saved (from attachment by the creditors of 1st accused s family) through their removal to prosecution 2nd witness s house.

(3.) In the paper Exhibit B, as it now stands, it is admitted on both sides that after the body of the document was written by the accused, there have bean short sentences or clauses added in four or five places in accused s writing. One added sentence at the end of the 2nd paragraph provides that the accused s family should lose their present enjoyment of the lands to be sold to them by prosecution 2nd witness if they failed to pay Rs. 12,250 within 13th April 1913. This addition, if assented to by the accused s father-in law, prosecution 2nd witness, who is one of the executants of the agreement, will imply an admission by him that the lands are in accused s possession. At the end of the 3rd paragraph, an addition Was made that vessels, jewels and articles remaining with prosecution 2nd witness should be returned. In another portion, (a few lines before the list of the property to be given over to accused s mother) the accused inserted words, again indicating that the lands were then being enjoyed by accused s father, accused, etc. One word pairil in the 1st paragraph alleged to be an addition by the prosecution after the body was written was denied by the accused to be an addition and I am satisfied on looking at the document that it could not be an addition, for without that word, there would be an inexplicable interval between the words written before and after it. As regards the other admitted additions, they relate to the enjoyment of the lands by the accused s family notwithstanding their absolute ownership in prosecution 2nd witness (which is fully admitted in the document) and to the return of jewels, vessels, etc., (value not mentioned) by prosecution 2nd witness. The prosecution alleged that these additions were made after the accused and his father-in-law and the two attesting witnesses had signed the document, while the accused says that, though he added them after he first wrote the body, he entered them before he and his father in-law and the attesting witnesses signed it. The material questions for decision, therefore, are, (1) whether the alterations about the enjoyment of the lands, and the return of the vessels and jewels were in the document Exhibit B before prosecution 2nd witness signed it; (2) whether such alterations were made dishonestly and fraudulently by the accused, if they were put in by him after his father-in-law signed it and without his knowledge or consent; (3) assuming again that the alterations were subsequently made without prosecutions 2nd witness s knowledge or consents whether Exhibit B thereby became a forged document.