SHEILA SEBASTIAN versus R. JAWAHARAJ & ANR. ETC.

Citation: [2018] 4 S.C.R. 439 · Decided: 11-05-2018 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Dismissed

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Judgment (excerpt)

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SHEILA SEBASTIAN
v.
R. JAWAHARAJ & ANR. ETC.
(Criminal Appeal Nos. 359-360 of 2010)
MAY 11, 2018
[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
Penal Code, 1860 – ss.420, 464, 465 – Allegation of forgery
– Prosecution case was that accused no.1, with the aid of imposter
impersonating as the owner of the property belonging to the
complainant, created a Power of Attorney (PoA) in his name as if
he was her agent and using the said PoA accused-respondent no.1
attempted to transfer the property by executing a mortgage deed in
favour of accused-respondent no.2 – Conviction by trial court,
upheld by Sessions court – High Court set aside concurrent finding
of courts below and ordered acquittal – On appeal, held: A charge
of forgery cannot be imposed on a person who is not the maker of
the forged document – Explanation 2 to s.464 states that, for
constituting an offence under s.464 it is imperative that the
accused person is the maker of the  false document – In the instant
case, there is no finding recorded by trial Court that the accused-
respondents made any false document – It is the imposter who can
be said to have made the false document by committing forgery –
The prosecution could not prove the offence of forgery by
adducing reliable evidence – In such an event trial court as well as
appellate court misguided themselves by convicting the accused –
High Court rightly acquitted the accused.
Investigation – Botched up investigation – Miscarriage of
justice – This case on hand is a classic example of poor
prosecution and shabby investigation which resulted in  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 – However, he has
not even taken bare minimum care to find out the whereabouts of
the imposter who executed the PoA – The evidence on record clearly
revealed that PoA was not executed by the complainant and the
beneficiary is the accused, still the accused could not be convicted
  [2018] 4 S.C.R. 439
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SUPREME COURT REPORTS
[2018] 4 S.C.R.
– The latches in the lopsided investigation went to the root of the
matter and fatal to the case of prosecution.
Dismissing the appeals, the Court
HELD: 1. Section 463 defines the offence of forgery, while
Section 464 substantiates the same by providing an answer as to
when a false document could be said to have been made for the
purpose of committing an offence of forgery under Section 463,
IPC. Section 465 provides punishment for the commission of the
offence of forgery. In order to sustain a conviction under
Section 465, first it has to be proved  that forgery was committed
under Section 463, implying that ingredients under Section 464
should also be satisfied. Therefore unless and until ingredients
under Section 463 are  satisfied a person cannot be convicted
under Section 465 by solely relying on the ingredients of Section
464, as the offence of forgery would remain incomplete.
[Para 19][447-A-C]
2.  A charge of forgery cannot be imposed on a person who
is not the maker of the same. Making of a document is different
than causing it to be made. As Explanation 2 to Section 464 further
clarifies that, for constituting an offence under Section 464 it is
imperative that a false document is made and the accused
person is the maker of the same, otherwise the accused person
is not liable for the offence of forgery.  The definition of “false
document” is a part of the definition of “forgery”. Both must be
read together. ‘Forgery’ and ‘Fraud’ are essentially matters of
evidence which could be proved as a fact by direct evidence or
by inferences drawn from proved facts. In the case in hand, there
is no finding recorded by the trial Court that the respondents
have made any false document or part of the document/record to
execute mortgage deed under the guise of that ‘false document’.
Hence, neither respondent no.1 nor respondent no.2 can be held
as makers of the forged documents. [Paras 25, 26][449-E-H; 450-
A]
3.  The imposter has not been found or investigated into by
the concerned officer. Nothing has been spilled on the relationship
between the imposter and respondent no.1. Strong suspicion,
coincidence, grave doubt cannot take the place of proof. A  duty
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is cast upon the courts to ensure that suspicion does not take
place of the legal proof. In this case, the trial court as well as th

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