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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.