Authored By : Banerjee, S.G. Sale

Banerjee and S.G. Sale, JJ.

1. The appellant in this case has been convicted by theSessions Judge of Jessore of offences punishable under Sections 408, 467 and471 of the Indian Penal Code, and has been sentenced to two years rigorousimprisonment under Section 408, and to a further term of two years rigorousimprisonment under Section 471.

2. It is contended by the learned Counsel for the appellantthat, as regards the charge under Section 408, there having been no directionto the appellant as to the way in which he was to apply the money that had beenremitted to him, and the account between the appellant and his employer being,according to the practice prevailing, adjustable at the end of the year, and itbeing further in evidence that it was not known whether at the date of thealleged breach of trust the appellant was indebted to his employer, or thereverse, the conviction is not sustainable. As regards the charge under Section467, the contention is, that there is no evidence to prove the forgery, andfurther that, as the alleged forgery was committed, not with the intention ofcausing any wrongful gain or wrongful loss, or of defrauding any one, but withthe intention of screening the past guilt of the accused, it would not comewithin the definition of forgery in Section 463 of the Indian Penal Code. And,lastly, as to the conviction under Section 471, it is contended that there isno evidence that the accused used the documents in question, nor any that heknew them to be false.

3. As to the first contention, that is, the one withreference to the conviction under Section 408 we have had such portions of theevidence as bear upon this part of the case placed before us by the learnedCounsel for the appellant and heard them commented upon. Though there were no expressinstructions to the accused as to how be was to appropriate the money that wassent to him, yet bearing in mind the close proximity of the date of theremittance to the last day for the payment of the March instalment ofGovernment revenue, and seeing that the challans, as; altered, which were sentby the appellant to his employer, and which in their altered state showed theamounts that were really payable as revenue, covered very nearly the wholeamount remitted, we think it but reasonable to infer that the accused was awareof the implied purpose for which the money had been sent. And as he depositedin the Collectorate a very much smaller amount than that which was remitted,,and which he was to have deposited, and tried to pass off the falsely alteredchallans as genuine, we think that there was a dishonest misappropriation ofthe difference between the amount actually deposited and that shown by thefalse challans to have been deposited, sufficient to constitute the offence ofwhich he has been convicted. It is not, as if, instead of appropriating themoney to one purpose, he had appropriated it to another, pending the adjustmentof accounts between himself and his employer. He had done completely all thatwas necessary to show that the amount had been duly appropriated to hisemployers use by forwarding the altered challans, and falsely showing adeposit by him of the larger amount.

4. As to the charge under Section 467, it is contended thatthe evidence as to handwriting is not sufficient to show that the accused hadcommitted the forgery himself, that is, with his own hand. No doubt theevidence is not sufficient to show that the forgery had been committed by theaccused himself. It is not shown that the alterations in the challans, whichconstitute the forgery, are, like the remainder of their contents, also in thehandwriting of the accused; but taking all the circumstances of the case, thereceipt of the money by the accused, the deposit by him of the smaller amountand the sending of the challans to the employer, showing a deposit of thelarger amount, accompanied by a post-card, and a letter proved to be in hishandwriting, advising the despatch of the challans to the employer, it is quiteclear that, if the accused did not commit the forgery himself, he must havebeen an abettor in the commission of it.

5. We must here consider the argument of the learned Counselthat even if, as a matter of fact, the charge of making these alterations inthe challans had been brought home to the accused, still, as a matter of law,the conviction cannot stand, as the alterations were made, not with theintention of committing a fraud or dishonesty in future, but with the intentionof concealing past acts of fraud and dishonesty. In support of the contention twocases were cited, one, that of Empress of India v. Jiwanand I.L.R All. 221 andthe other, that of Queen-Empress v. Girdhari Lal I.L.R All. 653.

6. With all respect for the learned Judges who decided thosecases, we are not prepared to accept the rule of law laid down by them, that itwould not amount to forgery under the Indian Penal Code, if the intention withwhich a false document was made was to conceal a fraud which had beenpreviously committed. If the intention with which a false document was made wasto conceal a fraudulent or dishonest act which had been previously committed,we fail to see how that intention could be other than an intention to commitfraud; and if the intention was to commit fraud, the making of a false documentwith that intention will come within. the definition of forgery in Section 463of the Indian Penal Code. Nor does Section 464 stand in the way of the view wehave taken; for though to constitute forgery a person must make a falsedocument,, as defined in Section 464, a person makes a false document "whodishonestly or fraudulently makes, signs, seals or executes a document, or apart of a document, etc.," so that, if there is either dishonesty or fraudin the making or altering of a document falsely, the case would come underSection 464.

7. We are asked to hold that "fraudulently" heremeans the same thing as "dishonestly"; and that if the intention wasnot to cause any wrongful gain or any wrongful loss in future, but merely toscreen a past offence of the offender, or, in other words, if this dishonesty,that is, the causing of wrongful gain or wrongful loss, was a thing of the pastat the date when the false document was made, the case would not come underSection 464. But quite apart from the question, whether, even though thewrongful gain or wrongful loss may be a thing of the past at the date of themaking of a false document, the making of the same should not yet be regardedas dishonest, we think the word "fraudulently" must mean somethingdifferent from "dishonestly." It must be taken to mean as denned inSection 25 of the Penal Code "with intent to defraud," and this wasthe view taken by the Bombay High Court in the case of Queen-Empress v. VithalNarain Joshi I.L.R. 13 Bom. 515 We are of opinion, therefore, that the forgeryin this case, for the abetment of which alone, upon the evidence adduced, itwould be safe to convict the appellant, was sufficiently constituted by thealterations in the challans. The view that the making of a false document undercircumstances, such as those under which the false challans in this case weremade, does amount to forgery, is fully supported by the decision of the MadrasHigh Court in the case of Queen-Empress v. Sabapati I.L.R Mad. 411.

8. As to the conviction under Section 471 we have been askedto hold that there is no evidence that the appellant used the false document,and that there is no evidence of his guilty knowledge. From what we havealready said, it is clear that he must have had guilty knowledge. For the moneycame to him, he acknowledged receipt of it in the post-card which he sent, hedeposited a much smaller amount as shown by the challans he wrote and filed inthe Collectorate, and then he sent the falsely altered duplicate challans tohis employer. The letter written by him, which followed the post-card, clearlyshows that he used the challans. It was contended that the evidence to showthat the post-card and the letter were in the handwriting of the accused isextremely meagre. We do not think that there is much force in this contention.There is the employer of the appellant, Jadu Nath Roy Chowdhry, there is hisdewan, Rajoni Kanta Ghose, and there is also an Amla of the Collectorate,Tarini Charan Das Gupta, who say that the post-card and the letter are in thehand-writing of the accused. All of them do not say that they have seen theaccused write, but they say that in the course of business they have seen hishandwriting; and viewing the matter in the way in which such matters ought tobe viewed by reasonable men, we do not think it would be right to hold thatthis evidence does not prove that the post-card and the letter were in thehandwriting of the accused. We think that the evidence adduced in this caseproves beyond all reasonable doubt that the accused used the false challans;and used them with guilty knowledge. He has made no defence, he has simply saidin his examination that he is not guilty. It is suggested by the learnedCounsel for the appellant that, possibly, if any offence has been committed, itmight have been committed by the son of the accused, who is deposed to by oneof the witnesses for the prosecution as being a young man of bad character, andwho sometimes goes to the Treasury, and if that was so, the accused could nothave made out his defence, as circumstances that might go to exculpate him,would go to incriminate his son.

9. This is a bare supposition. No sufficient foundation hasbeen laid in fact for any reasonable inference, or even suspicion, that theforgery of the documents which passed through the hands of the accused mighthave been the doing of his son without his knowledge. To give effect to such aconjecture would not be following the sound rule which requires us to give theaccused the benefit of a reasonable doubt, but would be allowing speculation totake the place of evidence.

10. For all these reasons, we think that the conviction withthe sole modification that we have indicated above, with regard to the chargeof forgery, must stand. With regard to the question of sentence, we think thatas the offences of criminal breach of trust, forgery, and using as genuine aforged document, are in this case intimately connected with one another, andform parts of one connected transaction, it will be sufficient for the ends ofjustice if we confirm the sentence of two years rigorous imprisonment for theoffence of criminal breach of trust, and reduce the sentence for the offenceunder Section 471 to rigorous imprisonment for one year.

11. It remains now to say one word with reference to theremarks of the learned Judge on the conduct of the assessors in this case. Thelearned Judge observes in his judgment in two places that the assessors havenot given their honest opinion in this case. We do not think that this remarkwas warranted by the mere fact of the assessors having been of opinion that theaccused was innocent. That opinion, no doubt, was an erroneous one. Theassessors were certainly wrong in their judgment when they said that the guiltof the accused had not been made out. But between error of judgment, howevergross, and moral obliquity, the difference is wide, and 1 Judge must have verystrong reasons before he can be justified in making remarks impugning the moralcharacter of persons associated with him in the trial of cases. We think it dueto the gentlemen who acted as assessors in this case that we should say thatmuch as we condemn their judgment, we see no reason to condemn their characterfor honesty.

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Lolit Mohan Sarkarvs. The Queen-Empress (02.11.1894- CALHC)