STATE OF U.P. ..

RANJIT SINGH

FEBRUARY 19, 1999

[G.B. PATTANAIK, M.B. SHAH AND R.C. LAHOTI, JJ.]

Indian Penal Code 1860-Sections 464, 466 & 468--Respondent forging ,-

a bail ordr--Not signed-Conviction by trial cowt-Acquittal by High Court-Both courts finding that document forged by respondent-Held, charc ges proved beyond doubt-Conviction upheld.

U.P. Probation of First Offences Act, 1958-Section 4--Respondent convicted of forgery-No bad antecedents-Lapse of 27 years-Sessions Judge granting benefit of Probation-Upheld-Respondent directed to execute a

D personal bond with one s, urety for 2 years.

Service Law :

Conviction of respondent for f orgery--Benefit of probation granted by Sessions Court-Acquittal by High Court-Whether High Court can direct the

E respondent to be treated as in continuour service-Held, no, the order of High Court is without jurisdiction.

Respondent was tried for offences under Sections 417, 420, 466, 467 & 468 of Indian Penal Code for fabricating a forged bail order for an accused. The trial Court convicted the respondent of all charges and F passed different sentences. On appeal, the Sessions Court acquitted the respondent of the offences under Sections 417, 420 and 467 IPC but maintained his conviction and sentence under Sections 466 and 468. But the Sessions Court gave the respondent, the benefit of Section 4 of Probation of First Offenders Act, 1958, on production of a personal bond with

G one surety.

On Revision, the High Court held. t}laf'since the accused has not signed the bail order, the said_bail-oroer cannot be said to constitute a document and therefore; Tt cannot be said that the ingredients of the offence under Sections 466 & 468 have been satisfied and acquitted the H respondent under Sections 466 & 468. The High Court also held that the \ 786

STATE v. RANJIT SINGH 787

grant of benefit under U.P. First Offenders Act by Sessions Court cannot A be treated as a punishment and that the respondent must be deemed to be in continuous service with all backwages.

On appeal before this Court the State c.ontended that the prosecution having fully established the fact that the bail order in question was in the hand-writing of the respondent even though the Hon'ble Judge had not passed any bail order, the charges under Section 466 and 468 must be held

to have been proved beyond reasonable doubt; that the High Court committed error in coming to the conclusion that the ingredients have not been satisfied merely because it had not been estalished that the signature in the bail order had not been put by the accused.

The respondent contended that in order to attract the offence of forgery of record of court under Section 466 it must be established that a document has been forged; that since no "wrongful gain" or "wrongful loss" can be said to have been achieved by the bail order, there was no dishonesty D in making the document and therefore Sections 464, 466 & 468 IPC will not be attracted, and that therefore, the High Court was justified in acquitting the accused of the charges.

Allowing the appeal, the Court

HELD : 1. The Order of acquittal, passed by the High Court is set aside. The respondent is convicted under Section 466 and 468 of IPC but sinte the incident itself was of the year 1971 and more than 27 years have elapsed in the meantime and the Sessions Judge himself had granted the benefit of Section 4 of the U.P. First Offenders Probation Act and there is

F ) no bad antecedents, the order of Sessions Judge is affirmed and respondent is directed to execute a personal bond of Rs. 2,000 with one surety of the like amount for keeping peactr and good behaviour for a period of two years. [792-H; 793-A-B]

2. The conclusion of the High Court that the bail order in question G cannot be said to be a 'document' since the accused did not put the -. signature under the bail order is erroneous. The Court has lost sight of the fact that under Section 464 of the Indian Penal Code, a person is said to make a false document who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document. The reasoning of the H

A High Court, therefore, that the bail order without the signature cannot be said to be a document thereby not attracting the provisions of Section 464 of the Indian Penal Code is wholly unsustainable. [791-A-B]

3. In view of the conclusion of the Courts below that the accusedrespondent did write the bail order in his own handwriting, even though B the Judge did not pass any bail order, the conclusion is irresistible that the accused-respondent made a false document, as a result of which a person not entitled to be released on bail could make himself free from custody. [791-E]

4. Where, a document is prepared with the intention to deceive and by means of deceit, an advantage is obtained then there is a fraud and judged from this stand point, the preparation of a forged bail order by the

utili1; ation of which the person concerned obtained an advantage of being released deceiving the courts and the society at large cannot but be said to have made the document fraudulently thereby attracting Section 466 of D the Indian Penal Code. Consequently, charges under Section 466 and 468 of the Indian Penal Code must be lield to have been proved beyond reasonable doubt. [792-C-G]

Mahesh Chandra Prasad & Anr. v. Emperor, AIR (1943) 30 Patna 393, E referred to.

5. The direction and observation of the High Court that the accused must be deemed to have been in continuous service without break and he should be paid his full pay and D.A. during the period of his suspension is without jurisdiction and it is quashed. [793-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 772 of 1993.

From the Judgment and Order dated 11.8.93 of the Allahabad High G Court in Cr!. R. No. 994 of 1988.

Paveen Swarup, Prashant Choudhary and AS. Pundir for the Appellant.

Giridhar G. Upadhyay, Ms. Vinita Upadhyay and R.D. Upadhyay for H the Respondent.

The Judgment of the Court was delivered by A

PATIANAIK, J. The respondent was .a Stenographer of a learned Judge of Allahabad High Court. He stood the trial for having committed offences under Sections 417, 420, 466, 467 and 468 of the Indian Penal Code on the allegation that he fabricated a forged bail order for one B accused Khelawan. The accused however denied the allegations in the trial.

On the basis of the evidence adduced by the prosecution, the learned Chief

-~~ Judicial Magistrate convicted him of all the charges and passed different sentences thereunder. On an appeal being carried, the Additional Sessions Judge, Allahabad in Criminal Appeal No. 65 of 1985 acquitted the accused of the offence under Sections 417, 420 and 467 IPC but maintained his c conviction under Sections 466 and 468 and sentenced him to rigorous imprisonment for two years and a fine of Rs.500 for each of the offences under Sections 466 and 468 IPC and in default, to serve out rigorous imprisonment for three months more, with the further direction that the sentences will run concurrently. But instead of sending the accused to Jail, he was given the benefit of Section 4 of Probation of First Offenders Act, D

1958 and it was ordered that he will file a personal bond of Rs.2000 with _,. one reliable local surety of the like amount for keeping peace and good behaviour for a period of two years. The accused, then filed a revision in the High Court and the High Court by the impugned Judgment came to the conclusion that since the accused has not signed the bail order, the said E bail order cannot be said to constitute a document and, therefore, it cannot be said that the ingredients of the offence under Sections 466 and 468 have been satisfied and the High Court accordingly acquitted the accused of the charges under Sections 466 and 468. The High Court also. peculiarly enough further came to the conclusion that the grant of benefit of Section F 4 of the U .P. First Offenders Act by the learned Additional Sessions Judge

)o cannot be treated as a punishment and, therefore, the accused cannot be treated as suspended from service and on the other hand must be deemed to have been in continuous service without break. The court, therefore .. ordered that he should be paid his pay and allowances immediately for the period of his suspension. It is against this order of the learned Single Judge G

of the Allahabad High Court the present appeal has been preferred by the State. -.

Mr. Chaudhary, learned counsel for the appellant contended that the prosecution having fully established the fact that the bail order in question H

A was m the hand-writing of the accused which was utilised for getting Khelawan on bail, even though in fact the Hon'le Judge had not passed any bail order, the charges under Sections 466 and 468 as against the accused-respondent must be held to have been proved beyond reasonable doubt and the High Court committed error in coming to the conclusion B that the ingredients have not been satisfied merely because it had not been established that the signature in the bail order had not been put by the accused, even though it was established that the bail order was in the hand-writing of the accused.

Mr. Upadhyay, appearing for the respondent on the other hand C contended that in order to attract the offence of forgery of record of court under Section 466, it must be established that a document has been forged.

Forgery as defined in Section 463 means whoever makes any false document and making a false document under Section 464 of the Indian Penal Code means whoever dishonestly or fraudulently makes, signs, seals or D executes a document or a part of a document. According to Mr .. Upadhyay, the expression 'dishonestly' has been defined in Section 24 to mean whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person and 'wrongful gain' and 'wrongful loss' have been defined under Section 23 to mean a gain by unlawful E means of property to which the person gaining is not legally entitled and loss by unlawful means of property to which the person losing it is legally entitled. According to Mr. U padhyay, since by the bail order in question, no 'wrongful gain' or 'wrongful loss' can be said to have been achieved, there was no. dishonesty in making the document and, therefore, Section 464 of the Indian Penal Code cannot be attracted and consequently, F Section 466 of the Indian Penal Code will also not be attracted. The learned counsel also submitted that for the same (.easons the offence under Section 468 cannot be said to have been committed and, therefore, the High Court was justified in acquitting the accused of the charges. We, however are not persuaded to agree with the contentions raised by Mr.

G Upadhyay, learned counsel for the respondent. There is no dispute and in-fact on the basis of the evidence of the hand-writing expert as well .as the evidence of Hon'ble Mr. Justice J.L. Sinha, in whose court the accused was working as Personal Assistant, it has been proved that the forged bail order in question has been written by the accused-respondent. The High H Court, in our view committed gross error in recording the conclusion that

... '

STATE v. RANJITSINGH [PATfANAIK, J.] 791

..., the bail order in question cannot be said to be a 'document' since the A accused-respondent did not put the signature under the bail order. The Court has lost sight of the fact that under Section 464 of the Indian Penal Code, a person is said to make a false document who dishonestly or fraudulently makes, signs, seals or executes a document or pmt of a document. The reasoning of the High Court, therefore, that the bail order B without the signature cannot be said to be a document thereby not attracting the provisions of Section 464 of the Indian Penal Code is wholly

-:- unsustainable. Coming now to the contention raised by Mr. Upadhyay, appearing for the accused-respondent, it would be seen from Section 466 of the Indian Penal Code that whoever forges a document, purporting to c be a record or proceeding of or in a Court of Justice commits the offence.

The bail order in question undoubtedly purports to be a proceeding in a court of justice and the question, therefore is whether the accused-respondent can be said to have forged the said document. 'Forgery' has been defined in Section 463 of the Indian Penal Code to mean whoever makes D any false document or part of a document with intent to cause damage or injury to the public and the expression 'making a false document' is defined

~ in Section 464 of the Indian Penal Code to mean that a person is said to make a false document who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document. In view of the conclusion E of the courts below that the accused-respondent did write the bail order in his own hand-writing, even though the learned Judge did not pass any bail order, the conclusion is irresistible that the accused-respondent made a false document, as a result of which a person not entitled to be released on bail could make himself free from custody. The question, therefore, is whether under such circumstances it can be held that the accused-respon- F dent made a false document either dishonestly or fraudulently. The expression 'wrongful' in Section 23 of the Act means prejudicially affecting a party in some legal right. The words 'gaining wrongfully' or 'losing wrongfully'

~· need not be confined only to the acquisition or to the actual deprivation of property. In this view of the matter if by virtue of preparing a false G document purporting it to be a document of a court of justice and by virtue of such document a person who is not entitled to be released on bail could be released then, undoubtedly damage or injury has been caused to the ..., public at large and, therefore, there is no reason why under such circumstances the accused who is the author of such forged document cannot H

A be said to have committed offence under Section 466 of the Indian Penal Code. Then again under Section 464 whoever dishonestly or fraudulently makes a document or part of a document can be said to have made a false document. A person is said to do a thing f'audulently if he does that thirig with intent to defraud but not otherwise. The expression 'defraud' involves B two elements, namely deceit and injury to the person deceived. Injury is something other than economic loss and it will include any harm whatever caused to any person in body, mind, reputation or such others. A benefit or advantage fo the deceiver will a1most always cause loss or detriment to the deceived. Where, therefore, a document is prepared with the intention to deceive and by means of deceit, an advantage is obtained then there is C a fraud and judged from this stand point, the preparation of a forged bail order by the. utilisation of which the person concerned obtained an advantage of being released deceiving the courts and the society at large cannot but be said to have made the document fraudulently, thereby attracting Section 466 of the Indian Penal Code. In the case of Mahesh D Chandra Prasad and Another v. Emperor, A.I.R.(30) (1943} Patna 393, a Bench of Patna High Court observed:

"To tamper with the record of a proceeding in a Court of justice in order to obtain from that Court a decision or order which it otherwise would not make, is to my mind, as much a public mischief as to attempt to secure the unauthorised release of a prisoner from jail or to obtain for an unqualified person credentials entitling him to practise as a surgeon or to navigate a ship. I can see no reason why the expression 'with intend to defraud' as it occurs in Section 25 of the Penal Code, should be more narrowly construed by the Courts in India than it has been construed by the Courts of Common Law in England in which, in an indictment for forgery, an intent to defraud had to be alleged."

Consequently, charges under Sections 466 and 468 of the Indian Penal G Code must be held to have been proved beyond reasonable doubt.

In this view of the matter, we unhesitatingly reject the contention raised by Mr. Upadhyay, appearing for the respondent and hold that the accused-respondent committed the offence under Sections 466 and 468 of the Indian Penal Code. We, therefore, set aside the order of acquittal, H passed by the High Court of Allahabad and convict the accused-respon-

''

dent under Sections 466 and 468 of the Indian Penal Code but since the A incident itself was of the year 1971 and more than 27 years have elapsed in the meantime and the learned Sessions Judge himself had granted the benefit of Section 4 of the U .P. First Offenders Probation Act and there is no bad antecedents, we also affirm the order of learned Additional Sessions Judge and direct that the respondent should execute a personal bond of Rs.2000 with one surety of the like amount for keeping peace and B good behaviour for a period of two years.

We also fail to understand how the High Court, while deciding a Criminal Revision can direct that the accused must be deemed to have been in continuous service without break and, therefore, he should be paid his full pay and D.A. during the period of his suspension. This direction C and observation is wholly without jurisdiction and we, accordingly quash the said direction contained in the impugned judgment of the High Court.

This appeal is accordingly allowed.

V.M.

Appeal allowed.