Manohar S/O Marotrao Sadavarte vs State Of Maharashtra
2003 Latest Caselaw 686 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard Mr. Sukhdeve, learned counsel for the applicant and Mr. Loney, learned A.P.P. for State.

2. This revision application is preferred by the applicant - Manohar Sadavarte who was original accused in Criminal Case No. 1441/1983 on the file of the Court of Chief Judicial Magistrate, Nagpur for challenging the judgment and order passed by the Sessions Judge, Nagpur in Criminal Appeal No. 9/1991 confirming the judgment and order of conviction and sentence passed by the Chief Judicial Magistrare, Nagpur convicting the applicant for offences under Section 467 and 471 of Indian Penal Code and sentencing him to suffer S. I. for 3 months and to pay fine of Rs. 500/- in default of payment of fine of Rs. 500/- to further undergo S. I. for one month and to suffer S. I. for 3 months and to pay fine of Rs. 500/- in default to undergo S. I. for 3 months respectively.

3. The applicant was working as Manager in the Malloogir Swami Weavers Co-operative Society, Umrer, District : Nagpur. The complainant Maroti Mukundrao Sadavarte who happens to be cousin of the applicant was member of the said society. He had deposited certain amount in his account in the society. It was in the year 1973 the complainant - Maroti asked for the amount deposited along with interest from the society. He was informed that the financial condition of the society was very weak and therefore, his amount could not be returned to him. During the enquiry conducted by Mr. Digamber Yevtkar, he found that applicant Monohar Sadavarte had misappropriated the amount of the society. The complainant Marotrao was entitled to get Rs. 2561.70 towards deposited amount and Rs. 2250/- towards interest. The accused - Manohar had withdrawn the amount from time to time from the society from the account of the complainant Marotrao Sadavarte. It was revealed that the complainant Marotrao had not authorized the accused to withdraw the amount from his account that is how the accused was found to have misappropriated the amount of the society from the account of Marotrao and it was found that in order to get the amount the accused had forged the record of the society. Matter was reported to the Police by lodging complaint. Accused was accordingly tried for the offence under Sections 408, 420, 468, 477(A) of Indian Penal Code.

4. Before the trial Court the prosecution examined nine witnesses including

- Bhaskar Sonkusare (P.W. 2 - Accountant), the then President Balaji Sadavarte (P.W. 4). The accused placed reliance on the letters Exhibit 30 to 32 admittedly written by the complainant - Marotrao authorizing the accused to withdraw the amount from the society from his account. It was found that in order to get the amount from the account of the complainant - Marotrao accused effected changes in the account of Marotrao that was at page 279 of the ledger book. For doing so the accused changed the name of the account-holder Marotrao son of Mukundrao Sadavarte by scoring out, keeping the surname intact. It was on the basis of effecting the change in the account the accused has withdrawn the amount and retained with him. Admittedly, the accused had in all withdrawn the amount of Rs. 4811.70 during the period from 5-6-1967 to 21-12-1972. Accused also paid the said amount to the complainant on 9-7-1973, but the complaint was lodged on 8-2-1974. As the accused retained the amount, instead of paying it to the complainant, the trial Court found that the intention of the accused was to defraud the complainant and therefore the trial Court convicted the accused for offence under Section 467 and 471 of Indian Penal Code but at the same time, considering the facts, attending the case the trial Court found that the accused has not misappropriated the amount as the amount has been paid to the complainant, though for temporary period for sometime the amount was retained by the appellant. It was admitted by the complainant Marotrao and other prosecution witnesses that the accused had paid the amount of 2561.70 on 9-8-1973 and the amount of Rs. 2250/- to Marotrao on 19-8-1973, It is significant to note that after receiving the amount from the accused, the complainant had passed receipt to the effect that nothing was due from the society to him. It was also found that the accused had withdrawn the amount on the basis of receipts at exhibit 39 to 41 and the enquiry officer found the entries to have been made in the cash book and ledger book in respect of the withdrawal of the amount by the accused. It was not the case that the amount has been withdrawn by the accused under the forged signatures of the complainant, the amount has been withdrawn by the accused in his name and for that purpose receipts have been passed. It has also come on record that the wife of the complainant was living with the accused and the accused had incurred expenditure for the treatment of the wife of the complainant. It is in this premise that the complainant Marotrao had authorized the accused to withdraw the amount from his account, it was on the basis of this that the trial Court came to the conclusion that though the amount was withdrawn and retained by the accused, no offence of misappropriation of the amount was made out in the facts and circumstances of the case.

5. The accused - applicant challenged his conviction for the offence under Sections 467 and 471A by preferring criminal appeal No. 9/1991. As stated earlier the appellate court did not find favour with the applicant and agreeing with the finding and conclusions drawn by the trial Court, the appeal came to be dismissed.

6. The learned counsel for the applicant took us through the evidence on record and pointed out that in the facts and circumstances of the case though the applicant has changed the entry in the account in the name of complainant - Marotrao, there was no element of fraudulent intention on the part of the applicant much less to deceive the society. He pointed out that by placing reliance on the decision of the Apex Court in Dr. Vimla v. Delhi Administration, that the expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit of advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.

7. Section 463 of Indian Penal Code defines forgery as whoever makes any false document or false electronic record or part of a document or electronic record, 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. A person is guilty of forgery if, with purpose to defraud or injure anyone, the actor; (a) alters any writing of another without his authority; or (b) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or (c) utters any writing which he knows to be forged in a manner specified in paragraph (a) or (b). Mere making of a false document or false electronic record would not constitute defrauding unless injury or intend to cause injury to the person deceived is also proved.

8. As per Section 464 of Indian Penal Code, making false document, is defined as "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; ........ with the intention of causing it to be believed that such document or part of document, electronic record of digital 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.

9. Though both the courts below accepted the fact that the accused altered the account of the complainant by effecting changes in the ledger, on the basis of that fact itself a conclusion has been drawn that the accused has committed forgery and prepared a false document, it appears that courts below and more particularly the trial Court has swayed away by the fact that the accused after altering the account of the complainant by scoring his name in his account in the ledger has withdrawn the amount and further retained the said amount without the same being given to the complainant.

10. Mr. Loney, learned A.P.P. submitted that the very fact that the accused retained the amount and for that he made false entry in the account substituting his name in place of the name of the complainant itself reflected his intention and that is reinforced by the fact that the amount has been withdrawn by the accused. I do not think that taking into consideration the attending circumstances and facts which are no longer in dispute, the intention to defraud or cause injury to the society should be spelt out merely from the fact that the accused has altered the entry in the account. It has to be said that both the courts have not considered the case from this point of alleged intention on the part of the accused in making the changes in the account to facilitate him to withdraw the amount from the account of the complainant. In the first place as can be seen from the evidence of material witnesses namely Bhaskar the Accountant of the society and the President Balaji Sadavarte P. W. 4, it is crystal clear that the fact that the accused was authorized by the complainant to withdraw the amount for him was very much within the knowledge of the office bearers of the society including the President and the Accountant. That is why the witness Balaji has candidly admitted that the accused was authorized by the complainant to get money from the society. Even Accountant - Bhaskar has candidly stated that the President and the Secretary of the Society were aware of the fact that the complainant had authorized the accused to withdraw the amount from his account and he was also aware that the alterations in the account. It is very pertinent to note that this witness has admitted that he made alterations in the cash book and vouchers with the knowledge of the President of the Society. It is true that the authorisation by the complainant to the accused to withdraw the amount from his account does not per se give recognition to the alterations in the account made by the accused. That does not rectify the alterations of the account. But at the same time the intention to defraud and cause injury is sine qua non for making alterations of the documents as creation of false documents and committing forgery for that purpose. In the case before hand the withdrawal of the amount by the accused was admittedly with the authorization by the complainant. Letters at Exhibit 30 to 32 do spell crystal clear that the complainant wanted accused to withdraw the amount for him. In addition to that the complainant has admitted in his evidence in clear terms that he had authorized the accused to withdraw the amount which he had deposited in his account of the society and that if the amount was withdrawn, it was received by himself from the accused. What is significant is the fact that the complainant has received the amount before he lodged the complaint. It is on the basis of this factual position that the courts below have come to the conclusion that withdrawal of the amount by the accused and for that purpose further retention of the amount by him for sometime did not amount to misappropriation. If that is so, then it goes without saying that the alterations in the account admittedly made by the accused and further admittedly to facilitate him to withdraw the amount was certainly without any intention to defraud the complainant, much less to cause any injury to the society. Therefore, in my opinion in the facts and circumstances, the offence under Section 467, is not at all made out.

11. By the same analogy it can be said that the offence under Section 471(A) of Indian Penal Code is not made out in the case before hand. So far as the trial Court is concerned, it is observed that because the accused has forged ledger book and used it for withdrawing the amount from the account of the complainant Marotrao offence under Section 471 of Indian Penal Code is brought to home. So the basis for holding the appellant guilty for the offence under Section 471 is the establishment of the fact that the accused has committed forgery, as defined under Section 463 and punishable under Section 467 of Indian Penal Code. This reasoning given by the trial cannot sustain when it is found that the offence under Section 467 is not made out and for the reason that there was absence of intention on the part of the accused to defraud or deceive the complainant. If that is so, then the accused cannot be found guilty of the offence under Section 471 of Indian Penal Code. In this context it is material to note that in no case the accused has withdrawn the amount by forging signature of the complainant. That apart, the withdrawal of the amount by the accused was known to the President and the Secretary of the Society. That apart the withdrawal of the amount was on the basis of authorization which the accused had from the complainant. If that is so, then the trial Court has committed error in holding the appellant guilty for the offence under Section 471 of Indian Penal Code.

12. So far as the appellate court is concerned, it is very distressing to note that appellate court has not given any reasoning as to why he is confirming the finding of guilt of the appellant for the offence under Section 471. In fact the first appellate court was expected to scrutinise the evidence on record as that of trial Court. What the appellate court observed that the learned counsel for the appellant could not point out as to how the finding recorded by the trial Court are erroneous and therefore, he was inclined to endorse both the findings. The appellate court has committed an error in holding that the appellant had forged the record in as much as he has withdrawn the amount on the basis of changing the record. The appellate court, very surprisingly observed that the appellant had initially misappropriated the amount and he had returned the same to the complainant. It is very difficult to justify the finding recorded by the appellate court. To say the least the finding under Section 471 of Indian Penal Code is not at all sustainable. Therefore, the courts below have committed error in convicting the appellant for the offence under Sections 467 and 471 of Indian Penal Code and also sentencing him for those offences. The appellant is found not guilty of the offences. The revision application is therefore allowed. The conviction and sentence of the applicant for the offence under Sections 467 and 471 of Indian Penal Code as well as the sentence awarded for those offences is set aside. The appellant is acquitted. The fine paid by the appellant be refunded to him.