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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: RANJIT SINGH

DATE OF JUDGMENT:       19/02/1999

BENCH: G.B.Pattanaik, M.B.Shah, R.C.Lahoti.

JUDGMENT:

PATTANAIK,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  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 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, 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 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 4 of the U.P.   First Offenders  Act  by  the learned  Additional  Sessions  Judge 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 of the Allahbad High Court the present appeal has been preferred by the State.

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     Mr.   Chaudhary,  learned  counsel for  the  appellant contended  that the prosecution having fully established the fact that the bail order in question was in 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 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 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 executes a document or a part  of  a  document.   According  to  Mr.   Upadhyay,  the expression  ’ishonestly’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  ’rongful gain’and ’rongful loss’ have  been defined under Section 23 to mean a gain by unlawful 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.  Upadhyay, since  by the bail order in question, no ’rongful gain’ or ’rongful 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, Section 466 of the Indian Penal Code will also not  be attracted.  The learned counsel also submitted  that for the same reasons 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.  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’le 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 Court, in our view  committed gross  error in recording the conclusion that the bail order in  question  cannot  be said to be a ’ocument’ since  the 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 part of a  document. The  reasoning  of the 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.  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  be  a record or proceeding of or in a Court  of  Justice commits the offence.  The bail order in question undoubtedly

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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.  ’orgery’has  been defined  in  Section  463 of the Indian Penal Code  to  mean whoever  makes any false document or part of a document with intent  to  cause  damage or injury to the  public  and  the expression  ’aking 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 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-respondent  made a false document either dishonestly or fraudulently.  The expression ’rongful’in Section 23 of the  Act means prejudicially affecting a party in some legal right.    The   words  ’aining   wrongfully’  or   ’osing 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 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 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  fraudulently if he does that thing with intent  to defraud  but  not  otherwise.    The  expression   ’efraud’ involves  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 to the deceiver will almost 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 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 Chandra Prasad and another  vs.  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 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

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alleged."

     Consequently,  charges  under Sections 466 and 468  of the  Indian  Penal  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, passed  by  the  High  Court of Allahabad  and  convict  the accused- respondent under Sections 466 and 468 of the Indian Penal  Code  but since the 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  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 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.