Appellate Division Cases
Hazi Ibrahim Ali………………………………. Appellant
The State ………………………………………Respondent.
Md Ruhul Amin. J
Sayeed J. R.
Mudassir Hussin. J
JUDGEMENT DATE: July, 8th 2002
Section 463 of the Penal Code
Section 463 of the Penal Code defines forgery and that forgery is said to have been committed when a person makes a false document or any part of a document for one or more of the purposes mentioned in the Section………………(13)
Criminal Appeal No 22 Of 1997 (From the Judgment and order dated November 4,1996 passed by the High Court Division in Criminal Revision No. 732 of 1996).
Md. Nawab Ali. Advocate-on-Record………………. For the appellant
Adbur Razzaque Khan, Additional. ttorney-General, With Md. Faisal H. Khan, Additional Attorney-General, instructed by Sharifiiddin Chaklader Advocate-on-Record ……………………..For the Respondent
1. Md Ruhul Amin J :- This appeal, on obtaining leave, by the convicts is against the judgment and order of November 4, 1996 passed by a Single Bench of the High Court Division in Criminal Revision No . 732 of 1996 discharging the Rule and thereby maintained the conviction and sentence under Section 468 and 468/109 of the Penal Code.
2. The convict-appellants and another moved the High Court Division in provisional jurisdiction against the judgment and order 1st dated August 22,1996 of the Court of Additional Sessions Judge, Sylhet passed in Criminal Appeal No.5 (4) of 1988 maintaining the conviction passed under Section 468 and 468/109 of the Penal Code and the Sentence of one year rigorous imprisonment and to a fine of Tk. 3000/- each in default to suffer simple Imprisonment for 6 months more passed by the Court of Upazila Magistrate, Zakiganj, Sylhet on October 10, 1988 in G. R. Case No. 53 of 1986.Prosecution Case was that convict appellants and seven (7) others in collusion with each other created two registered Muktipatras in respect of certain vested property which was leased out to different persons. The specific case of the prosecution is that appellant No. 3 shailendra Chandra Das and Several others executed and registered two Muktipatras on
February 6, 1984 and January 5, 1985 in favour of the appellant Nos. 1 and 2 and another by name Haji siddique Ahmed in respect of the land asserting the same to be the ancestral property of Hazi Siddique Ahmed and others although said land was the vested and non-resident property of the Government and the excutants of the two Muktipatras were the lessees of the said vested property and that said two Muktipatras have been created to grub the property vested in the Government.
3. In the background of the aforesaid prosecution case the appellants and 7 others were called upon to answer the charge framed under Section 468 and 468/109 of the Penal Code. The accused claimed to the innocent . On conclusion of trial the Upazila Magistrate by the judgment and order dated October 10,1988 convicted appellant Nos. 1 and 2 and nother under Section 468 read with Section 109 of the Penal Code and the appellant Nos.3 and 6 others under Section 468 of the Penal Code. The Upazila Magistrate sentenced all the convicts to 1 (one) year rigorous imprisonment and to a fine of Tk. 3000/- each, in default to suffer 6 moths simple imprisonment. On appeal, the appellate Court by the judgment and order of August 22, 1996 maintained the conviction and sentence passed by the court of Upazila Magistrate. The appellants and another as against the judgment and order of the appellate court moved the High Court Division in revisional jurisdiction but without any success.
4. The leave was granted to consider the submission of the learned Counsel of the appellants to the effect ” That the prosecution case is to the effect that the questioned Muktipatras were executed by the accused persons in their own name and on their own behalf and that there is nothing in evidence to show that the executants of the said Muktipatras impersonated themselves as somebody else to pass off as persons who actually did not execute the same in the circumstances there is a total absence of the imgredients of the offence of forgery as defined in sections 463 and 464 of the Penal Code and so the High Court Division fell into a gave error of law in upholding the conviction and sentence of the petitioners under sections 468/109 of the Penal Code”
5. Forgery has been defined in Section 463 of the Penal Code which reads as : ” 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”. The other Section i. e Section 464 postulates circumstances in which a person is said to ” make a false document”.
6. Prosecution case is that the appellant No. 3 along with 6 (six) others have executed and registered two Muktipatras in favour of appellant Nos. 1 and 2 and another making statements therein that the property, which they earlier took lease as vested property is the ancestral property of the said persons and that the said Muktipatras have been executed and registered by the appellant No. 3 and others to deprive the Government from claiming the property which has vested in it by operation of law i. e law relating to vested and non-resident property.
7. It is the contention of the learned Advocate-on-record for the appellants that in the background of the admitted fact that questioned Muktipatras have been executed by the appellant No . 3 and along with others of their own by singing their name, to which there is no dispute, in favour of the appellant Nos. 1 and 2 and another and that as there is total absence of evidence to show that the executtants of the Muktipatras and pretended themselves as some bodies to pass off as persons who actually did not execute the Muktipatras and thereupon there being total absence of ingredients of the offence of forgery as has been defined in Sections 463 and 464 of the Penal Code the High Court Division was in serious error of law in maintaining the conviction and sentence of the appellants under Sections 468 and 468 read with Section 109 of the Penal Code. The learned advocate-on-Record in support of his aforesaid contention has referred to the cases decided by the different High Courts of Sup-Continent including by the High Court of erstwhile East Pakistan.
8. In the case of Shamsul Huda Khan Vs. Aminul Islam Chowdhury reported in 3 DLR (1951) 201, in the background of the fact that petitioner before the High Court executed a false Kabuliat in favour of complainant’s ‘fufushashuri’ her minor grandson, the wife of the petitioner and the sister of the wife of the petitioner purported to create some tenancy right in respect of lands belonging to the recipients of the Kabuliat in order to defraud the recipients. It was contended on behalf of the petitioner “Even if a false statement is recited in the body of the document, the document being admittedly made or executed by the petitioner himself, he cannot be convicted of forgery”.
9. Since the petitioner in the reported case admitted the execution of the document that contained statement which was otherwise not true, the High Court Division set aside the conviction of the petitioner passed for the offence of committing forgery. The another Division Bench of the Dhaka High Court in the case of Ali Akber Vs State reported in 10 DLR ( 1958) 354 in the background of the case of the prosecution that the appellant as Head Clerk of the Election Department under the Election Deputy Collector, had forged a Work Register said to have been maintained by him by making certain false and fictitious entries therein on various dates held that the said act of the appellant “does not, in our opinion come within the mischief of the first clause of section 464 of the Penal Code” It has further been held merely because on those dates the appellant made entries in the said work Register, he signed false receipts of certain printed voter lists he could not be said to have committed a forgery in respect of the said work Register”.
10. The learned Advocate-on-Record for the appellant has also referred to the case of Gunjar Mohammad and another Vs. Shuruz Ali reported in (1922) LXIX I. C. 451 (AIR 1924 Cal. 536 ). Fact of the case is that Gunjar Mohammad executed a kabinnama which was witnessed by one by name Shunjar mohammed in favour of Aimona Bibi, Who was not in fact his wife, yet in the background of the said fact it was contended that the document being not a false document within the meaning of Section 464 of the Penal Code conviction for forgery was not sustainable in law. In that given facts it was held that the document in question was not a false document and that conviction for forgery was not sustainable in law. The other case relied upon by the learned Advocate-on-Record is the case of Adaikalammai Vs. Raman reported in (1909) ILR 32 Madras 90. Facts of the case is that A, who was not the son, natural or adopted, of the deceased B, executed a deed of mortgage of certain properties of B in favour of C. In the body of the document A was described as the son of B, though no such description appeared in the signature. A was known to c for a long time, and A had no intention of causing it to be believed that the document was executed by any other person than himself. It was held that A was not guilty of making a ‘ false document’ within the meaning of section 464 Penal Code. The assertion of a false claim in a document will not constitute the document false, when it is executed by the party who purports to execute it and there is no intention of causing a belief that it was executed by some other person, real of fictitious.
11. The other case referred to from the bar is the case of State Govt. Madhya Pradesh Vs, Hifzul Rahman and others reported in AIR 1952 , Nagpur 12. Prosecution case in the case mentioned herein above was that four buffaloes of Ramchandra were stealthily driven by Mitiram and were kept at village keslapar under the direction of Hifzul Rahman on the ground that the cattle pound of Mangrool was not repaired at that time. Acting under the instigation of Hifzul Rahman the accused Govinda showed the arrival of the above cattle in the cattle pound at Mangrool by forging cattle receipt. It was also the allegation that he forged corresponding entries in the fodder register and the cattle pound register. Later on all the accused acted together and declared that the cattle should be taken as ill and managed to fabricate auction papers. After entering a few bogus bids in the names of their friends without any proclamation and ultimately got the cattle knocked down in favour of two accused. It was also alleged that accused Hifzul Rahman posed as the member in-charge of kora Local Board circle also and attested the above auction papers in the capacity of the officer-in-charge as if holding the auction. In the background of the aforesaid facts it was held for the purpose of the charge of forgery it is immaterial that document contains recital which may be false in other respect.
12. In the case reported in AIR 1969 Guzrat 117 it has been observed ” the mere making of a false statement in a document could not come within Section 464 I. P Code and would not amount forgery”. Lastly the learned advocate has referred to the case of Ram Ghulam Singh Vs. Emperor reported in AIR 1929 Allahbad 396. Therein it has been held a document would not become forged document if a wrong entry of a matter appears to be made therein. In the instant appeal, the appellants were put on trial to answer the charge under Sections 468 and 468/109 of the Penal Code. Section 468 reads : “Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine”.
13. So in order to sustain conviction under the aforesaid section the requirement is that there must have a forged document as has been defined in sections 463 and 464 of the Penal Code for the purpose mentioned in the Section. It has been alleged by the prosecution that the appellant No. 3 along with some others executed two Muktipatras in favour of the appellant Nos . 1 and 2 and another and therein the executants, as the prosecution case is, have made statement that the property which was treated as the vested property and leased out to different persons including the executants by the vested property authority, is the ancestral property of the recipitants i. e appellant Nos. 1 and 2 and another, of the Muktipatras . The case of the prosecution is that the statement so made in the Muktipatras are false. It may be mentioned there is no allegation that on the basis of the Muktipatras the appellant Nos. 1 and 2 and another have approached the vested property authority for any purpose including for the purpose of not treating the property as vested property and to release the property from the list of vested property .
As seen from the record prosecution case is confined to that the appellant No. 3 and others have executed the Muktipatras in favour of the appellant Nos. 1 and 2 and another making false statements therein to the effect that the property is the ancestral property of the appellant Nos. 1 and 2 and another.
14. Section 463 of the Penal Code defines forgery and that forgery is said to have been committed when a person makes a false document or any part of a document for one or more of the purposes mentioned in the Section. The other Section i. e Section 464 is an explanation of the earlier Section and state the circumstances or situations when ” a persons is said to make a false document” One of the situation in which ” a person is said to make a false document” is that if he ishonestly or fraudulently makes, signs, seals or executes a document or part of document, or makes any mark denoting execution of a document, with the intention of causing it to be believed that such document or part of 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. The other two situations when ” a person is said to make a false document” as in the Section are not relevant for the purpose of the present appeal.
15. It being the definite case of the prosecution that appellant No. 3 along with others have executed two Muktipatras in favour of the appellant Nos. 1 and 2 and another containing false statement relation to property leased out to the executants of the Muktipatras .and others upon treating the property as vested property to the effect that the said property is the ancestral property of the recipients of the Muktipatras. The undisputed fact is that appellant No. 3 and others have executed the document and that
therein they have made some untrue statements regarding the property relating to which they executed the Muktipatras . The documents i.e. Muktipatras having admittedly been executed by the appellant No. 3 and others the same is in no way can be said to have been brought into existence under the circumstances or situations mentioned in Section 464 in the presence whereof ” a person is said to make a false document”. From the ratio of the cases referred to herein over it is seen that it has uniformly been held that making of false statement in a document by the executants thereof does not saddle him with the liability of committing forgery or that of making a false document.
16. In the background of the discussion made here over we are of the view that the High Court Division as well as the Courts below were in serious error because of the nature of the prosecution case brought before the court and tried in finding the appellants guilty of committing offence under Section 468 and 468/109 of the Penal Code and sentencing the accused there under. Accordingly the appeal is allowed. The conviction and the sentence of the appellants under Section 468 and 468/109 of the Penal Code are set aside.
Source: I ADC (2004), 178