JUDGMENT
1. This revision is directed against the judgment and order, dated 3.11.1999, passed by the learned Deputy Commissioner, Papumpare District, Itanagar, in Criminal Appeal No. 3/94, upholding the judgment and order, dated 14.6.1994, passed by the learned Judicial Magistrate (First Class), Papumpare District, Itanagar, in GR Case No. 124/93, convicting the accused-petitioner under Section 468 IPC and sentencing him to undergo imprisonment for a period of one year and pay a fine of Rs. 3000 and, in default, to undergo
imprisonment for a further period of three months.
2. In a nutshell, the material facts and various stages leading to the present revision may be, briefly, narrated as follows :-
(i) The accused-petitioner was charge sheeted by police for having allegedly committed an offence under Section 468 IPC and was accordingly brought for trial before the learned Judicial Magistrate 1st Class, Itanagar, in GR Case No. 124/93. The case against the accused-appellant, as unfolded at the trial, may, in brief, be stated thus: Sub Inspector Suresh Singh of Naharlagun Police Station received information from confidential source that some unscrupulous persons were getting cash memos of petrol pumps of various locations printed at Naharlagun. During the course of inquiry conducted by him, the said police officer learnt that such cash memos were, indeed, being printed at M/s Capital Printers (hereinafter referred to as “the said press”) Naharlagun. When the accused petitioner came, on 17.3.1993, to the said press to collect the cash memos, which he had allegedly placed order for printing at the said press on 16.8.1993, he was caught red-handed by the said police officer, while taking delivery of the said cash memos and the cash memo books were, vide seizure list (Ext. 4), seized. The said police officer, then, lodged a written complaint, in this regard, on 17.8.1993 itself, with the Officer-in-Charge of Naharlagun PS. Treating this complaint (Ext. 5) as the FIR, Naharlagun PS Case No. 46/93 (corresponding to GR Case No. 124/ 93 aforementioned) under Section 468 IPC was registered against the accused-petitioner and, on completion of investigation, police laid, as indicated hereinabove, charge-sheet against the present petitioner, Pura Lodar, who was driver of the bus of State Tourism Department and also against one B. Rajandra.
(ii) During trial, a charge under Section 468 IPC was framed against both the accused, but when the same was read over and explained to the accused, they pleaded not guilty thereto. In all, prosecution examined three witnesses, namely, the said police officer, one Smt. Usha Rani Dutta, Manager of the said press, and Sri Dinesh Deka, a proof-reader of the said press. The defence also adduced evidence by examining three witnesses. On completion of the trial, learned trial Court held the accused B. Rajendra aforementioned not guilty of the charge and accordingly acquitted him, but as far as the present petitioner was concerned, the charge against him, according to the learned trial Court, was found proved. The present petitioner was accordingly convicted and sentence was passed against him as hereinbefore stated.
(iii) Aggrieved by his conviction and sentence aforementioned, the
petitioner preferred an appeal before the learned Deputy Commissioner, Papumpare district, but by the judgment and order, dated 3.11.1999, aforementioned, the learned Deputy Commissioner upheld the learned trial Court’s judgment and order of conviction and sentence passed against the petitioner and dismissed the appeal. The petitioner has, now, approached this Court by way of this revision.
3. I have carefully perused the materials on record including the impugned judgments and orders. I have heard Mr. P.K. Tiwari, learned counsel for the accused-petitioner, and Mr. N. Lowang, learned Public Prosecutor, who has appeared on behalf of the Opp. Party.
4. It was pointed out before the learned appellate Court and it has also been raised before this Court too by Mr. P.K. Tewari that the offence under Section 468 IPC was not complete in the present case inasmuch as the alleged cash memos, which have been treated by the learned trial Court as the forged cash memos, could not have been held to be forged, because the cash memos were not false documents or part of false documents within the meaning of Section 463 IPC, which defines forgery. It is also contended before me by Mr. Tewari that even if the evidence on record is believed in its entirety, the accused petitioner cannot be held to have committed offence under Section 468 IPC inasmuch as the offence, if any, was, submits Mr. Tiwari, at the stage of preparation and had not reached the stage of attempt. Reliance in support of this contention is placed by Mr. Tiwari on the Empress v. Riashat Ali @ Babu Miya @ Bodiuzzuma, ILR 7 Cal 352.
5. Assailing the legality of the conviction and sentence under Section 468 IPC, two-fold arguments have been advanced in this revision. Firstly, it is contended that in the present case, not to speak of an offence under Section 468 IPC (Forgery for the purpose of cheating), there are, in fact, no ingredients of offence under Section 463 IPC (Forgery) at all inasmuch as the printed Cash Memo Books seized from the possession of the petitioner were not false documents within the meaning of Section 463/464 IPC, and that there was no evidence to show that the Cash Memo Books were printed dishonestly or fraudulently within the meaning of the words as used in Section 464 IPC and/or that the same were printed with one of the intents specified under Section 463 IPC. It is, secondly, contended that not to speak of the commission of offence under Section 468 IPC, there was not even an attempt to commit an offence under Section 463 IPC (which would have been punishable under Section 464 and/or Section 468 read with Section 511) and, at the most, there was a preparation to commit an offence under Section 463 IPC and the same is not punishable under the provisions of the IPC.
6. Controverting the above submissions made on behalf of the accused-petitioner, learned Public Prosecutor has merely contended that the evidence on record clearly proved that the accused had placed order for printing of the cash memos, in question, without any authority of the firm or persons in whose name the cash memos were printed and in the absence of any explanation coming from the end of the accused in this regard, it was natural, on the part of the learned trial Court, to infer that the accused dishonestly got the said cash memos printed and the same were nothing, but false documents. In the absence of any explanation having been offered by the accused-petitioner for getting the cash memos printed, submits learned Public Prosecutor, the learned Courts below were wholly justified in holding that the accused got the said cash memos printed for the purpose of cheating.
7. Before entering into the merit of the rival submissions made before me on behalf of the parties, it is pertinent to mention that the concurrent findings of both the learned Trial Court as well as of the learned Appellate Court are that the petitioner, who was a driver in the Tourism Department of the Government of Arunachal Pradesh, had placed an order for printing of cash memo books of four different Petrol Pumps, namely, (i) Arunachal Auto Agency, (ii) Meghalaya Service Station, (iii) Capital Auto Agency and (iv) Chandmal Saraogi, located at Itanagar, Banderdewa, Tezpur and Jorabat respectively. The order was placed with M/s Capital Printers, Naharlagun. The petitioner was caught, while taking delivery of the cash memo books aforementioned, and the same were accordingly seized.
8. Apart from the fact that the correctness of the above findings have not been disputed before me, what, on a close scrutiny of the evidence on record, emerge as the proven facts are that the accused is a driver of bus in the State Tourism Department, he got cash memo books printed in the name of petrol pumps located at different places and he was found in possession of those printed cash memos.
9. In the light of the facts, which have so emerged from the evidence on record, let me, now, determine if the accused-petitioner can be held to have committed offence of forgery for the purpose of cheating under Section 468 IPC.
10. While considering the above aspect of this revision, what is of paramount importance to note is that before the accused-petitioner can be held to have committed offence under Section 468 IPC, the Court has to be convinced that the evidence on record proves beyond reasonable doubt that the petitioner had committed offence of forgery. However, when one considers the question as to whether the petitioner
had committed offence of forgery, what has to be, first, answered is whether the petitioner had made false documents or part of false documents inasmuch as the definition of forgery, contained in Section 463 IPC, reads as under :-
“463. Forgery. – Whoever makes any false document or part of a document with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”
11. Thus, to constitute “forgery” within the meaning of Section 463 IPC, the following ingredients must be established, namely, (i) the document or the part of the document must be false, (ii) it must have been made dishonestly or fraudulently within the meaning of the words as used in Section 464 IPC and (iii) it must have been made with one of the intents specified under Section 463 IPC (See AIR 1968 Mad 349 and AIR 1999 SC 1201 may be referred to).
12. In AIR 1963 SC 1572, a Five Judge Bench of the Apex Court held thus :
“The definition of “false document” is a part of the definition of “forgery”. Both must be read together. If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows : (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority ; (2) making of such a document with an intention to commit fraud or that fraud may be committed. In the two definitions, both mensrea described in Section 464, i.e., “fraudulently” and the intention to commit fraud in Section 463 have the same meaning….The second thing to be noticed is that in Section 464 two adverbs, “dishonestly” and “fraudulently” are used alternatively indicating thereby that one excludes the other. That means they are not tautological and must be given different meanings.”
13. The above definition of forgery, I may emphasize, shows that making of a false document or part of document with one of the intents mentioned in Section 463 will constitute forgery. In other words, unless the document, in question, is proved to be a false document or part of a false document, question of calling the document as a forged document will not arise at all.
14. What constitutes a false document has, however, been defined in Section 464 IPC, which is divided into three parts. A document
has to fall into one of these three parts for making it a false document. In the case at hand, there is no dispute before me that it is the first part of the definition of Section 464 IPC, which is relevant for the purpose of this revision. The relevant portion of Section 464 IPC reads as follows :-
“464. Making a false document. – A person is said to make a false document –
First. – Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed.”
15. In short, the first part relates to the making, signing, sealing or execution of a document with the intention of causing it to be believed that such a document was made by the authority of a person by whom the maker knows that it was not made.
16. Making of false document is the soul of forgery. The expression “making a false document” is not to be understood in its literal sense. It has a special connotation in the IPC. The contours of the said expression stand delineated in Section 464 IPC, which defines a false document by descriptive enumeration of the processes by which it may be rendered false; but in every case, the falsity must affect a “document”, which is defined in Section 29 IPC.
17. The term “makes”, “signs” or “executes” is to be read ejusdem generis (of the same kind or nature). The word “signs” would include also a mark, such as, a thumb impression in the case of an illiterate person, and so would the word “seal” include any impression made in token of its’ execution. For instance, putting a seal to a genuine signature given on a document, which is invalid without a seal, is forgery. The word “execution” implies completion and in law, a document is complete as soon as it is signed by the obligor in token of accepting its terms. Thus, signing or sealing a document completes its execution.
18. What constitutes “making” of a document depends essentially upon the nature and the use it is intended for. Indeed, the definition of a document (Section 29) does not necessarily require that it should be, in every case, in writing or contain the signature or facsimile of any person, but includes what is done by way of printing (see L.K. Siddappa v. Lalithamma, AIR 1954 Mys 119 at 120).
19. In re : Riasat Ali (supra), relied upon by Mr. Tewari, Garth. CJ, observed:
“I consider that the ‘making’ of a document or part of a document does not mean ‘writing’ or printing it, but signing or otherwise executing it; as in legal phrase we speak of ‘making an indenture’ or ‘making a promissory, note’ by which is not meant the writing out of the form of the instrument but the sealing or signing it as a deed or note. The fact that the word ‘makes’ is used in the section in conjunction with the words ‘signs’ seals, or executes or makes any mark ‘denoting the execution, etc.’ seems to me very clearly to denote that this is its true meaning. What constitutes a false document or part of document is not the writing of any number of words which in themselves are innocent, but the affixing of the seal or signature of some person to the document or part of a document knowing that the seal or signature is not his and that he gave no authority to affix it. In other words, the falsity consists in the document, or part of a document, being signed or sealed with the name or seal of a person who did not, in fact, sign or seal it.” (Emphasis is added)
20. The above observations were criticized by Dr. Whitley Stokes by saying, “Garth, CJ, in 7 Cal 352, thought that the ‘making’ of a document or part of a document means signing or otherwise executing it. Why then were ‘makes’ and ‘made’ used as well as ‘signs’, ‘executes’, ‘signed’, ‘executed’ ?” (The Anglo-Indian Codes, Vol I page 269).
21. The Calcutta High Court in Pramatha v. State (AIR 1951 Cal 581) noticed the criticism of Dr. Stokes, but felt bound to follow its earlier Bench decision in Riasat Ali (supra). However, the other High Courts have dissented from it (see AIR 1952 Bom 327, AIR 1928 Lah 681, AIR 1951 Pat 86, AIR 1954 Mys 119).
22. In Emperor v. Krishtappa Khandappa (AIR 1952 Bom 327), Macleod, CJ, has observed, with reference to Riasat Ali, ‘The learned Chief Justice (Garth, CJ,) for the purpose of that particular decision, did not consider the provisions of Section 29 IPC”.
23. In AIR 1928 Lah 681 and AIR 1951 Pat 86, i-t has been held that the word ‘make’ does not mean anything other than ‘creates or brings into existence’. It is, however, undoubted that the word ‘makes’ does not mean a mere mechanical reproduction, but involves a conscious act of the maker, (see AIR 1954 Mys 119).
24. Hence, for committing an offence of forgery (Section 463), a false document is required to be consciously made. This “making” of a
false document may or may not require “signing” and/or sealing and/or execution. In other words, “making” of a document essentially means and depends on the nature of the document and the use to which the document is intended to be put to.
25. Thus, printing of card falsely inviting people to a wedding between A and B, if intended to be used with the intent(s) specified in Section 463 IPC, will tantamount to ‘making’ of a false document. In other words, printing of such a card, in itself, without any signature having been put thereon, would still amount to ‘making’ of a false document, but in case of an indenture of sale, mere typing out of a deed on requisite stamp papers is not enough to constitute/convert the same into a false document unless the same is signed denoting execution thereof. Of course, complete signature(s) on such a deed is not necessary and it is sufficient for attracting Section 463 IPC even if the signature is incomplete and the document is caught before the signing of the deed was actually complete inasmuch as Section 463 envisages, as the definition of “making of a false document” indicates, even a part of such a document as a false document.
25A. In other words, for a document to be a false document, it is not necessary that it must be a complete document. However, if such a deed of sale is caught before any signature, in part or in full, is put thereon, then, the deed will not be treated as a false document inasmuch as the offence will still remain at the stage of preparation, but if the accused or any one involved in the conspiracy with the accused is caught, while signing such a deed, the offender can be said to have been caught, when the offence had gone beyond the stage of preparation and had already entered into the zone of attempt to commit the offence of forgery.
26. In other words, before the process of signing of such a deed commences, the ‘making’ of false document will remain under process and the crime will remain within the stage of ‘preparation’. It will be just like making of a duplicate key to a lock for committing theft or procuring of prison for committing murder. For merely making such a key, even if the intended offence is theft, one cannot be held to have attempted to commit the offence of theft. Similarly, procuring of prison, in itself, will not constitute offence of attempt to commit murder, though the objective might have been to administer poison to a specific person.
27. When a person gave an order for the printing of certain cash memo books of different Petrol Pumps, it may be his intention to use the printed forms of cash memo books for committing a fraud. However, for getting a cash memo book printed, he cannot be
convicted of forgery, until one of the printed forms had been converted by him into a false document. The printed forms could be converted into a false document by the accused by making entry into the same showing the buying and/or selling of a certain quantity of petrol with the initial of a person issuing the receipt. However, in the present case, the acts, so indicated, we’re not yet done, because the petitioner was caught, while he was taking the delivery of the cash memo books. Whether after so taking the delivery, the petitioner would have used the blank printed forms of the Cash Memo books for the purpose of converting the same into a false document is a matter of surmise and conjecture and the petitioner cannot be convicted on the basis of such surmises and conjecture. The petitioner could not have also been legally convicted with the aid of Section 511 IPC for an attempt to commit forgery until he had done some act towards making one of the cash memos a false document. Until a cash memo was converted into a false document, all that the. accused had done consisted in mere preparation for the commission of an offence, because the offence of forgery is committed only when a false document is made within the meaning of Section 464 IPC.
28. There is wide difference between “preparation” and an “attempt” to commit an offence. The preparation consists in devising or arranging means necessary for the commission of an offence, while an attempt is the direct movement towards the commission after the preparations are made. Acts remotely connected with the commission of the crime are not attempts to commit it. The law punishes a man not for guilty intention, but for the overt act done (R. v. Miskell (1954) 1 All ER 137). If but for the interruption, offence would have been complete, the act amounts to attempt (In re. – Duraiswamy, AIR 1942 Mad 521). The Apex Court has held in Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698, that person commits the offence of attempting to commit a particular offence, when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence, does an act towards its commission and that such an act need not be penultimate act towards the commission of that offence, but must be an act during the course of committing such offence. Preparation is not punishable, because a preparation, apart from its motive, would, generally, be a harmless act. This apart it would be impossible, in most cases, to show that the preparation was directed to a wrongful end or was done with as evil motive or intent.
29. There are, however, exceptional cases, wherein the contemplated offence may be so grave that it would be of utmost importance to stop it at its initial stage and punish it at the preparatory stage itself.
These are offences under Sections 122, 126, 233-235 and 257, 242, 243, 259, 266 and 399 IPC. It is noteworthy that preparation for forgery is not an offence under the provisions of the IPC. Ordinarily, once the act enters into the arena of attempt, criminal liability begins, because attempt takes the offender very close to the successful completion of the crime and that is why, it is punishable in law just like the completed offence.
30. In the present case, the petitioner, after placing an order for printing of Cash Memo Books of four different Petrol Pump Stations, had only taken the delivery of the same and he was caught in the act of so taking delivery. This was, at best, a preparation, which had not culminated into an attempt. The same would have culminated into an attempt, had the petitioner made, as indicated hereinabove, an entry into any of the printed forms of the Cash Memo books showing the buying and/or selling of petrol with initial of a person issuing the receipt. Had the aforesaid acts been done, the same would have converted the printed forms into a false document within the meaning of Section 464 IPC and would have brought the act of the accused under the zone of attempt to commit forgery within the meaning of Section 463 irrespective of the fact whether the petitioner had put such false document into penultimate use of making wrongful gain for himself or wrongful loss to others. In such a situation, the petitioner could have been convicted of an offence of forgery with the aid of Section 511 of the IPC. However, the facts and circumstances of the case, unequivocally, demonstrate that the act of the petitioner, at best, constituted a preparation and not an attempt and, thus, the petitioner could not have been convicted under Section 463 or 468 of the IPC. The conviction and sentence of the accused-petitioner under Section 468 IPC, therefore, deserve to be quashed and set aside.
31. Coupled with what have been concluded above, it is also worth pointing out that from a bare reading of the definition of “making of a false document”, contained in Section 464 IPC, it is abundantly clear that to make a document a false document, a person, who make the document, has to act dishonestly or fraudulently in making the document or part of the document with the intention of causing it to be believed that the same was made by the authority of the person by whom or by whose authority the accused knew that it was not made.
32. In short, Section 464 IPC shows that a document, to be treated as a false document, has to be capable of being used with the intention of causing it to be believed that the document was made by the authority of a person by whom or by whose authority, the accused knew that the same was not made.
33. The contention of the prosecution, in the present case, appears
to be that since it was not the business of the accused to get cash memos printed, at has to be assumed that the cash memos were unauthorizedly printed and such act of the accused must be held to have been done dishonestly or fraudulently. This view, as I shall show now, is completely inconsistent with the rudimentary tenets of criminal jurisprudence.
33A. The prosecution, even learned Public Prosecutor candidly concedes, failed to discharge the onus of proving that the accused had placed the order for printing Cash Memo Books of the said Petrol Pumps without any authority. In cross-examination, when the IO (PW-3) was asked as to why he had not verified with the concerned Petrol Pump Stations as to whether they had authorised the petitioner to place the order for printing Cash Memo Books on their behalf, the reply was that he did not think it necessary as the accused, being a driver, had no business to get cash Memo Books printed relating to different Petrol Pump Stations.
34. In view of the fact that there is no direct evidence on record indicating that the accused intended to use the said cash memos to show that petrol had been received by him in the vehicles (which he drives) from different petrol pumps from where no petrol was actually taken, the entire case of the prosecution rests on the only evidence that the accused got the said cash memos printed as stated hereinbefore. In order to hold that the accused-petitioner had acted dishonestly and fraudulently in getting the said cash memos printed, the learned trial Court as well as the appellate Court have held to the effect that since there is no evidence on record to show that the accused-petitioner was authorized by the owners of the petrol pumps, in question, to get the said cash memos printed, the accused must be held to have got the said cash memos printed without any authority from the owners/management of the petrol pumps concerned.
35. To say the least, the learned trial Court as well as the appellate Court appear to have put the burden of proving innocence on the accused rather than insisting on the prosecution to prove the guilt of the accused. From the mere silence of the accused as to how he came to place orders for the cash memos, it could not have been necessarily interfered that the accused got the said cash memos printed without the authority of the owners/management of the petrol pumps concerned. The burden squarely rested on the prosecution to prove by adducing adequate evidence on record that the owners or management of the petrol pumps concerned had not authorized the accused-petitioner to get the said cash memos printed or that the accused had got the said cash memos printed without the authority or knowledge of the owners or management of the petrol
pumps concerned. In the absence of any evidence in this regard, merely depending upon the silence of the accused, which the accused was entitled to maintain, the learned Courts below could not have come to the lone and only conclusion that the accused had got the said cash memos printed without authority of owners/management of the petrol pumps concerned.
36. Situated thus, I find considerable force in the submissions of Mr. P.K. Tiwari that the learned trial Court as well as the appellate Court lost sight of the fact that the burden of proof in a criminal trial always rests on the prosecution and it is only when the prosecution proves beyond reasonable doubt the guilt of the accused that the burden shifts to the accused to prove his innocence. In fact, I may add that even when the burden, so shifts, to the accused, the accused may discharge his burden by probabilising the plea that it may take. Another golden thread, which passes through the criminal jurisprudence, is, if I may point out, that the accused had the right to maintain complete silence and his silence alone cannot be treated as a substitute for the burden, which rests on the prosecution to prove its case beyond all reasonable doubt.
37. The question, now, is whether on the basis of the evidence on record, even if one were to assume, for a moment, that the accused had got the cash memos unauthorizedly printed, his mere act of getting the cash memos printed without authority will make the cash memos fall within the meaning of the definition of false document contained in Section 464 IPC.
38. In the case at hand, as already pointed out above, since the accused did not/could not convert the said cash memos into false documents or part of false document nor did/could he use the cash memos, in question, in any way, his mere possession thereof, without any further evidence, was not, it is clear, adequate to hold that the accused had got the said cash memos made with the intents mentioned in Section 463.
39. It is common knowledge that a cash memo, whether given by a petrol pump or by any other business establishment against payment for the goods purchased, has to be signed and sealed. In the case at hand, the cash memos were seized without any signature and/or seal. The documents, as such, were wholly innocuous documents and the same were incapable of being regarded as false documents. It was like, as indicated above, making of a false key for a lock hanging on the door of the house, where a thief intended to commit theft. Viewed from this angle, the petitioner cannot be held to have committed the offence of forgery and, therefore, far less an offence under Section 468 IPC.
40. In the result and for the reasons discussed above, this revision succeeds. The impugned judgment and order of conviction and sentence shall accordingly stand quashed and set aside. The accused petitioner is held not guilty of the charge framed against him under Section 468 IPC and he is acquitted of the same. The bail bond of the accused-petitioner is cancelled and his surety is discharged.
41. Send back the case records with copies of this judgment and
order.