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Pramatha Nath Accused- v. The State
Structured Summary of the Opinion
Factual and Procedural Background
This is an application in revision by Pramath Nath Harabab seeking to set aside the order of the Magistrate of Uluberia dated 12 April 1950. The applicant had been convicted under Sections 465 and 110 of the Indian Penal Code for abetment of forgery in relation to a withdrawal petition filed before the Appellate Officer, Uluberia, under the Bengal Agricultural Debtors Act. A co-accused, Suchandra Kumar Samanta, was charged under Section 465 for forging that withdrawal petition and was acquitted by the Sessions Judge.
The prosecution's narrative was that Hari Charan Harabab had applied in the Kharuberia Debt Settlement Board on behalf of his grandson (or the son of his daughter) Naresh Chandra Dhara; that application was dismissed and Hari Charan appealed; the withdrawal petition at issue purported to withdraw that appeal. Pramath Nath (the applicant) was a nephew of Hari Charan, employed as a pleader's clerk (Tadbirkar) and alleged by the prosecution to have aided in procuring or putting in the withdrawal petition without authority from Hari Charan. The withdrawal petition itself was written by Suchandra, purportedly executed by Hari Charan as guardian of the minor, and signed by the pleader Bejoy Kumar Roy Chowdhury. There was an endorsement on the petition in Pramath's handwriting indicating that Pramath had authority to file the petition and was handing it to the pleader.
The applicant challenged the Magistrate's conviction by way of this revision petition. The court below (Sessions Judge) had acquitted Suchandra; the present revision concerns the conviction of Pramath.
Legal Issues Presented
- Whether the offence disclosed by the facts constitutes "forgery" under Sections 463 and 464 of the Penal Code — specifically, what is encompassed by the phrase "makes any false document" (i.e., whether "making" requires writing, signing, sealing or other execution).
- Whether, assuming a forgery, the applicant can be convicted of abetment under Sections 109 and 110 of the Penal Code on the evidence available (i.e., whether the prosecution proved instigation, intentional aiding or conspiracy as required for abetment).
- Whether the conduct (if any) should instead be prosecuted under other provisions (e.g., Section 182 of the Penal Code or Section 64 of the Bengal Agricultural Debtors Act) that would require sanction, and if so whether the absence of sanction rendered the prosecution incompetent.
Arguments of the Parties
Applicant's Arguments
- The acts complained of do not disclose the offence of forgery: in the applicant's submission, "making" a false document must involve writing, signature, sealing or execution; mere procurement, preparation or advice does not satisfy the statutory concept of "making" a false document.
- Even if a false document existed, there was no abetment by the applicant because he did not write, sign or execute the petition and there was no clear evidence of instigation, intentional aiding or conspiracy as required by Section 107 to constitute abetment.
- The offence arguably disclosed (if any) might fall under Section 182 of the Penal Code or Section 64 of the Bengal Agricultural Debtors Act, and those provisions required prior sanction which was not obtained; therefore the prosecution was incompetent.
Prosecution's Arguments
- The word "makes" in the definition of forgery should not be confined to physical writing and could include acts such as advising creation of a document; limiting "makes" to signing/sealing would render the word superfluous.
- The prosecution relied on the deposition of Suchandra that he wrote the petition "under the advice" of the accused Pramath; this was tendered as evidence of abetment.
- Even though Suchandra was acquitted, Sections 108 and 110 show that an abettor may be punished even if the person who actually did the act lacked the same guilty intention or knowledge; therefore the acquittal of Suchandra does not necessarily preclude conviction of Pramath.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The Empress v. Riasat Ali, 7 Cal. 352 (Garth C.J.) | Garth C.J. observed that "making" a document does not necessarily mean writing it but may mean signing or otherwise executing it; falsity consists in affixing the seal or signature of a person who did not in fact sign or give authority. | The court recognized this as a binding Bench decision and considered the observation relevant to interpreting "makes a false document" in Sections 463–464, but went on to place emphasis on the additional requirement of fraudulent or dishonest intention when deciding whether forgery was made out in the present case. |
| Petition of R. MacCrea, 15 All. 173 (Allahabad High Court) and Ex parte MacCrea, 20 I.A. 90 (Privy Council) | These authorities bear on the interpretation of "attempt" under Section 511; the Privy Council upheld the Allahabad decision and cast doubt on Garth C.J.'s view regarding "attempt." | The court noted that the Privy Council's decision overruled Garth C.J.'s position on "attempt" (S.511) but explained that this does not affect the present question regarding the meaning of "makes a false document" in forgery provisions. |
| Dhiredra Nath Bera v. Narul Huda, Full Bench Reference No. 4 of 1951 (arising out of Criminal Revn. Case No. 769 of 1950) | Authority on the point that where an offence can be framed under different sections of the IPC—some requiring sanction and others not—the prosecution may validly proceed under a section that does not require sanction. | The court relied on this Full Bench decision to reject the applicant's contention that absence of sanction rendered the prosecution incompetent; the court held it was competent to charge under a section not requiring sanction. |
Court's Reasoning and Analysis
The court proceeded in stages. It began with the statutory text and the construction of the phrase "makes any false document" in Section 463 read with Section 464 of the Penal Code. It noted the judicial authority of Garth C.J.'s observations in The Empress v. Riasat Ali, that "making" may properly mean signing, sealing or otherwise executing a document rather than merely writing it; those observations are binding as the decision of a Bench and relevant to the present construction.
However, the court emphasized that, irrespective of whether "makes" is construed narrowly or broadly, an essential ingredient of forgery is the fraudulent or dishonest intention. The court framed the key factual question as whether the applicant had authority or whether he dishonestly or fraudulently put in the petition or was instrumental in putting it in. The court explained that when authority is controverted it is necessary to prove not only lack of authority but also dishonest intention, and that an honest but mistaken belief in authority would amount to an abuse of authority rather than forgery.
Applying the facts, the court found (and for present purposes assumed the complainant's testimony to be correct) that Pramath had not written any part of the petition, had not signed or executed it, and that the body of the petition and the execution were in Suchandra's handwriting. The presence of an endorsement in Pramath's handwriting stating he had authority and was handing the petition to the pleader was, the court held, consistent with an honest belief in authority rather than proof of dishonest intention.
On the question of abetment, the court examined the evidence relied on by the prosecution. The only direct evidence suggesting Pramath's involvement was Suchandra's deposition (Ext. 4) that he wrote the petition "under the advice of" the accused. The court held that the content of the alleged advice was not proved and that "advice" alone is too vague to constitute abetment. For abetment the law requires instigation, intentional aiding, or engaging in a conspiracy as envisaged by Section 107; general advice without evidence of instigation or intentional aiding does not suffice.
The court also considered the fact that Suchandra had been acquitted and explained why that acquittal did not necessarily preclude conviction of an abettor: Sections 108 and 110 provide that the person abetted need not have the same guilty intention as the abettor and the abettor may still be punishable. Nevertheless, in the present case the court concluded that the prosecution had not furnished the requisite evidence of abetment beyond Suchandra's vague statement, and therefore abetment was not proved.
Finally, regarding the contention that the offence should have been charged under provisions requiring sanction (e.g., Section 182 or Section 64 of the Bengal Agricultural Debtors Act), the court relied on the Full Bench decision in Dhiredra Nath Bera v. Narul Huda to hold that where multiple sections might apply, some requiring sanction and others not, the prosecution may bring charges under a section that does not require sanction; accordingly the absence of sanction did not render the prosecution incompetent in the present matter.
Holding and Implications
Holding: For the reasons stated, the court SET ASIDE the orders of the Magistrate and the Sessions Judge in respect of the applicant and directed that the accused petitioner, Pramath Nath Harabab, be ACQUITTED of the charge framed against him and discharged from his bond. The rule was made absolute, and Guha, J. agreed.
Implications: The direct and immediate effect of the decision is the applicant's acquittal and discharge. The court applied existing authorities on the construction of "making" in forgery provisions, on the necessity of proving dishonest intention to establish forgery, on the evidentiary threshold for abetment (instigation, intentional aiding or conspiracy), and on the question of sanction where alternative charges are available. The opinion does not purport to lay down any novel legal principle or to create a new precedent beyond applying the cited authorities to the facts; its practical consequence is limited to reversing the convictions in this case.
End of summary based solely on the text of the provided opinion.
P.B Mukharji, J.:— This is an application in revision by one Pramath Nath Harabab for setting aside the order of the Magistrate of Uluberia dated 12th April 1950.
2. The applicant was convicted under S. 465/110, Penal Code, for having abetted forgery of a document. The document in question is a petition for withdrawal filed before the Appellate Officer Uluberia under the Bengal Agricultural Debtors Act. There was another co-accused by the name of Suchandra Kumar Samanta. He was charged under S. 465 Penal Code, for having forged that particular document Suchandra has been acquitted by the Sessions Judge.
3. Two main points have been argued before us on behalf of the applicant. One is that the offence disclosed is not one of forgery and the other is that in any event there is no abetment of such offence with which the applicant has been charged. It is necessary to set out here at the outset the charge against the applicant. The charge was that on 4th May 1948 the applicant intentionally aided Suchandra in forging the withdrawal petition which was filed in the Court of the Appellate Officer Uluberia in Case No. a/40 of 1945-1946 under the Bengal Agricultural Debtors Act, the act of forgery being committed in consequence of his abetment. The charge against Suchandra was that he forged that particular withdrawal petition and committed an offence under S. 465, Penal Code.
4. The document in this connection is, as I have said, the withdrawal petition. The prosecution case is that one Hari Charan Harabab filed an application in the Kharuberia Debt Settlement Board on behalf of Naresh Dhara for getting possession of land sold at auction at the instance of Haradhan Banerjee. Naresh Dhara is the son of Hari Charan's daughter. The application was dismissed and Hari Charan preferred a appeal against the order of dismissal in the Court of the Appellate Officer. The applicant Pramath Nath Harabab is the son of Hari Charan's brother and worked as pleader's clerk in that case before the Debt Settlement Board. An appeal was filed against that order dismissing the application of Hari Charan. The petition of withdrawal which is the document concerned in this revisit purported to withdraw that appeal. It is the pro section case that Hari Charan did not authoris Pramatha to put in or file that withdrawal petition. According to the evidence of Hari Charan he did not authorise the applicant Pramatha to withdraw the appeal on his behalf.
5. The withdrawal petition is written out by Suchandra Kumar Samanta. It purports to be executed by Hari Charan Harabab as the guardian of minor Naresh Chandra Dhara. That part is also in the handwriting of Suchandra. This withdrawal petition is signed by Bejoy Kumar Roy Chowdhury as B.K Roy Chowdhury, the pleader who filed the petition before the Appellate Officer.
6. There are certain facts which are undisputed. They are that so far as the body of the petition is concerned no part of it was written out by the applicant Pramatha. The petition also does not purport to be executed by the applicant or signed by him as the executant of that document. There is an endorsement on the petition which is in the handwriting of the applicant Pramatha. The endorsement is to this effect ??? Pramatha had authority to file this petition ??? he is handing over this petition to the ??? This portion of the endorsement is signed ??? Pramatha and bears his signature. The prosecution case is that this document was written out under the advice of Pramatha.
7. It is on these facts that the argument is advanced that there has been no forgery and consequently there can be no offence of abetment of forgery. The determination of this question turns on the construction of the words “makes any ??? document”. Section 463, Penal Code, provides inter alia:
“Whoever makes any false document or part of a document with intent to cause damage or injury to any person or with intent to commit fraud or that fraud may be committed commits forgery.”
8. What is “making a false document” is described in S. 464, Penal Code. In the first paragraph of S. 464 it is provided leaving out the details not necessary for the purposes of the present case:
“A person is said to make a false document who dishonestly or fraudulently makes a document or part of a document with intention of causing it to be believed that such document or part of a document was made by or by the authority of a person by whom or by whose authority he knows that it was not made.”
9. The argument on behalf of the applicant is that there has been no “making” of a false document. The matter is one of considerable importance. It has been argued that in order to make a false document there must be either some writing of the part of the document itself or signature or sealing or execution. On the other hand, on behalf of the prosecution it has been submitted before us that if that were so, the word “makes” would become superfluous in the context of the language in S. 461, Penal Code. This question has been the subject of some judicial decision. The one that we need refer at the present stage is the decision of Garth C.J in the matter of the petition of Riasat Ali; The Empress v. Riasat Ali, 7 Cal. 352. There the learned Chief Justice made the following observations while construing S. 464, Penal Code. These observations so far relevant for our present purpose are:
“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 a 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 singing it as a deed or a 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 execution etc. seems to me to be very clearly to denote that this is its ‘true meaning. What constitutes a false document, or part of a document, is not the writing of any number of words which in themselves are innocent, but the affixing 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.”
10. This particular observation of the learned Chief Justice has been criticised by Stokes in his commentary on the Anglo Indian Codes, vol. I, p. 269, and the learned author in reference to this case says: “Why then were ‘makes’ and ‘made’ used as well as ‘signs’, ‘executes’, ‘signed’, ‘executed’? “The decision of the learned Garth C.J was the decision of a Bench of this Court and with those observations of the learned Chief Justice, Prinsep J. sitting with him agreed and is binding on us. We do not feel that it is necessary for us to go any further on this point and refer this question to a Full Bench for a fuller consideration of the criticism of Stokes. What needs emphasis however is that every forgery postulates a false document either in whole or in part however small. A piece of blank paper is not a document. Procurement of a piece of paper or of writing instrument or of a scribe cannot separately or by combination be regarded as making a false document. Until a false document is made either in whole or in part there cannot be in my opinion any forgery. Mere preparation for the commission of a possible crime of forgery without a false document in part or in whole cannot itself be either forgery or abetment of forgery. I will only observe here that the observation of Garth C.J regarding the offence of attempt to, commit a crime under S. 511, Penal Code in that case was criticised by a Bench of the Allahabad High Court in the matter of the Petition of R. MacCrea, 15 ALL. 173. Knox and Blair JJ. dissented from the view expressed by Garth C.J with regard to the interpretation of the word “attempt” as used in S. 511, Penal Code. But that dissent does not in my opinion affect the main question. That in the case of forgery there must be the making of a false document. Here again I am not concerned with a case of attempt under S. 511, Penal Code. Here the charge is abetment under ss. 109 and 110, Penal Code. The learned Lord Chancellor of England delivering the judgment of the Judicial Committee in appeal from: that Allahabad decision in Ex parte MacCrea, 20 I.A 90 at p. 94 in upholding the decision of the Allahabad High Court clearly pointed out the distinction between preparation to commit, an offence and acts done towards the commission of the offence.” On the question of the interpretation of the word “attempt” in S. 511, Penal Code, therefore it must be taken that the views of Garth C.J have been overruled by the Privy Council. But as I have said before this does nob affect the question before me on the construction of the words ‘makes a false document’ in Ss. 463 and 464, Penal Code.
11. The more cogent reason in this case is that whatever may be the construction of the words “makes a false document” it is an essential ingredient of the offence of forgery that there must be the fraudulent or dishonest intention. Now, in this case the prosecution case is that although the petition purports to be made by Hari Charan as guardian of Naresh Dhara, Hari Charan never authorised the making of this petition. The question therefore is: Did the accused-applicant have the authority or did he dishonestly or fraudulently put in this petition or was instrumental in putting in this petition before the Appellate Officer? In every case of forgery where the question of authority is raised, as it is raised here, it is essential to prove not only lack of authority but also the dishonest intention with probably more than usual care. The reason is that mere abuse of authority would not necessarily lead to a conclusion that there is a forgery. Abuse of authority can be in various forms and every abuse of authority is not a crime. It is not forgery where the act is done under the honest belief that the party doing it had a right to do it although in point of fact he had really no such authority. I will assume that the evidence given by Hari Charan and by his son Amulya, the complainant, to be correct on the point that neither Hari Charan nor Amulya gave any authority to the accused Pramatha to put in this petition. Nevertheless it is consistent with Pramatha making an honest mistake that he had the authority. It will be an abuse of authority if he did so, but not forgery in that case or abetment of forgery. The learned Editor of the Tenth Edition of Russell on Crimes at p. 1474, vol. II observed:
“As it is not forgery where the act is done under the honest belief that the party doing it had a right to do it although in point of fact he had really no such right, evidence which tends to show that there was reasonable ground for such belief is admissible on behalf of the prisoner.”
12. In this context, a particular fact is relevant and that is Pramatha is the nephew of Hari Charan and was employed by Hari Charan in fact to look after this appeal and was a Tadbirkar. How far he had authority as a Tadbirkar is not clear on the evidence except the oral testimony of Amulya and Hari Charan that he had no authority to put in this particular petition. The other fact relevant on this consideration is that if the accused Pramatha was careful enough not to write any part of the document, nor to sign nor to execute it but to have it written out by Suehandra, why would he be bold enough to put in that endorsement stating that he had the authority and that the petition is being handed over to the lawyer? This endorsement is consistent with his own honest belief in that context that he had the necessary authority. Where there are two reasonable or probable conclusions, one consistent with the innocence of the accused and the other with his guilt, it is well settled that the one that is consistent with his innocence should be adopted.
13. The next question is about the evidence on which the accused Pramatha has been convicted of the offence of abetment of forgery. As I have said before the charge was that he abetted Suchandra in forging this withdrawal petition. Suchandra has been acquitted. His acquittal however does not make the charge against the present accused Pramatha incompetent because Suchandra was given the benefit of doubt in the sense that although he made the document and wrote it out, he wrote it out innocently without knowing that the accused Pramatha had no authority to do so. Besides, the actual provisions of ss. 108 and 110, Penal Code are in my opinion clear on this particular question. In Explanation 3 to S. 108, Penal Code, it is laid down that it is not necessary that the person abetted should be capable by law of committing an offence or that he should have the same guilty intention or knowledge as that of the abettor or any guilty intention or knowledge. Then again in S. 110, Penal Code, it remains punishable if the person abetted does the act with a different intention or knowledge from that of the abettor. The learned Advocate on behalf of the prosecution in making the argument that he did on the words “making a false document” was between the horns of a dilemma. According to his construction of the word “makes” he was in fact charging the accused Pramatha with the actual making of the document because he advised the creation of that document, but that was not the charge against Pramatha on which he was tried. He was charged with abatment.
14. The only evidence on which the prosecution relies for proving abetment is that of Suohandra Samanta. A good part of the argument addressed to us was taken up by the question whether the deposition of Suchandra before he became a co-accused in this case was admissible evidence. This deposition is marked Ext. 4. It is unnecessary for us to decide the technical point as to whether the deposition is admissible or nob, because in any event such deposition in our view doest not prove abetment. What Suchandra said was this.
“I wrote it under the advice of the accused Pramatha Nath ???. Pramatha told me he was busy and so advised ??? write this petition.”
15. There is no evidence what that advice was. Advice is not necessarily abetment in order that there may be abetment there must be either instigation or intentional aiding or engaging in a conspiracy as laid down in S. 107, Penal Code. Generil advice is far too vague an expression to prove abetment under the Penal Code. Apart from Suehandra's evidence there is no other evidence at all on abetment in the whole record.
16. On behalf of the accused, it has been contended that the offence disclosed was an offence if any, not under S. 463 or S. 464, Penal Code of abatment of such offence of forgery but one which might have come under S. 182, Penal Code, of Section 64 of the Bengal Agricultural Debtors Act. In either event sanction was necessary. The argument was that as no sanction was taken here, therefore the trial or the prosecution was incompetent. Havini regard to the recent decision of the Full Bench of this Court in the case of Dhiredra Nath Bera v. Narul Huda, in Full Bench Reference No. 4 of 1951 arising out of Criminal Revn. Case No. 769 of 1950, we do not consider that this argument can any longer be accepted. If the offence disclosed can be laid under different sections of the Indian Penal Code, some requiring sanction and others not requiring sanction, it is quit competent for the prosecution to bring the offence under a section which does not require sanctior.
17. For the reasons stated above, we set aside the orders of the Magistrate and the Sessior Judge and direct that the accused petitioner Pramatha Nath Harabab be acquitted of the charge framed against him and discharged from his ??? bond.
18. The Rule is made absolute.
19. Guha, J.:— I agree.
K.S
20. Rule made absolute.
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