TaxTMI 
TaxTMI 
2018 (5) TMI 2148
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....y numbers 1777/1A, 1778/1, 1779/1 and 1779/2 in Valliyoor village. The complainant alleges that, Accused No. 1, (R. Jawaharaj), with the aid of an imposter who by impersonating as Mrs. Doris Victor created a Power of Attorney (hereinafter 'PoA') in his name as if he was her agent. It was further alleged that, using the aforesaid PoA the Accused No. 1, attempted to transfer the property of complainant by executing a mortgage deed in favour of Accused No. 2, (Rajapandi) for a sum of Rs. 50,000/-. After getting the information about the aforesaid transaction, the owner of the property Mrs. Doris Victor gave a complaint to the police which was subsequently registered as FIR dated 14.03.1998. After the completion of investigation, a final report was filed against the aforesaid Accused Under Sections 420, 423 and 424, Indian Penal Code. The complainant Mrs. Doris Victor died after filing the complaint. 3. The learned Judicial Magistrate framed charges against Accused No. 1 for the alleged offences punishable Under Sections 420, 423 and 465, Indian Penal Code and against the Accused No. 2 for the offences Under Sections 424 and 465 read with 109, Indian Penal Code. Both the Acc....
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....d. counsel for the Respondents supported the judgment of the High Court and the interpretation given by the High Court, how the offence Under Section 464, Indian Penal Code is attracted. Further he submits that the Appellant has got back the property and the mortgage deed has been cancelled by a competent civil court. 9. Before we proceed to deal with the merits of the case, it would be appropriate to have a look at the Statements of certain prosecution witnesses for better appreciation of the dispute involved in the case. 10. P.W. 1 (Narayanan Pillai), who is a document writer, stated that on 08.12.1997, both the Accused accompanied a woman who identified herself as Mrs. Doris Victor and approached P.W. 1 to execute a Power of Attorney in favour of Accused No. 1. After the said document was made by P.W. 1, two witnesses put their signatures along with P.W. 1 himself. Later they registered the said document in the office of Sub Registrar, Panangudi. One month thereafter, both the Accused came to the office of PW 1 for the execution of mortgage deed in respect of the said property for an amount of Rs. 50,000/-. PW 1 prepared the said document which was then signed by Accused N....
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....m 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. 18. It would also be necessary to understand the scope of Section 464, Indian Penal Code in this context- 464. Making a false document.--A person is said to make a false document or false electronic record-- First.--Who dishonestly or fraudulently-- (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any electronic signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who without lawful authority, dish....
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....lanation 2 as given in Section 464 of Indian Penal Code. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it. 21. It is observed in the case Md. Ibrahim and Ors. v. State of Bihar and Anr., (2009) 8 SCC 751 that- "a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. 22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, Indian Penal Code) and using of forged document as genuine (Section 471, Indian Penal Code). While considering the basic ingredients of both the offences, this Court observed that to attract the offence of forgery as defined Unde....
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....en falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the Section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said Section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the Accused before us could not have been convicted with the making of a false document. 25. Keeping in view t....
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....cion does not take place of the legal proof. In this case, the trial Court as well as the appellate Court carried away by the fact that Accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability. 28. This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the Accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the Accused, still the Accused could not be convicted. The latches in the lopsided investigation goes to the root of the matter and fat....