Sheila Sebastian v. R. Jawaharaj - A Postscript

This week, the Blog hosted a guest post by Sregurupriya critiquing the recent Indian Supreme Court decision in Sheila Sebastian [Crl Appeal 359-60 of 2010]. It is an interesting decision, which could be quite important or yet another citation, and here I join the debate that Sregurupriya started.  

Factual Recap

Jawaharaj and Miss X (a cousin of the Scotland Yard Enigma) went to Narayanan Pillai to get a Power of Attorney [PoA] made in 1997. A PoA is a legal document that effectively says that Person B has been authorised to perform certain legal acts / duties, on behalf of Person A. Here, the PoA was authorising Jawaharaj to perform certain acts for Miss X. On the document, Miss X signed off as one Doris Victor - who she was not - and once the PoA was made it was registered with the authorities. It meant that Jawaharaj could perform various legal acts in the name of Doris Victor, including selling her property. Which is exactly what he tried to do soon after, by entering into a Mortgage Deed with Rajapandi for Rs. 50,000/-. We don't know how, but soon the real Doris Victor got to know about this and an FIR dated 14.03.1998 was registered on her complaint. After the police finished investigation, it filed a Charge-Sheet against both Jawaharaj [A-1], and Rajapandi [A-2] for having cheated Doris Victor. The creation and use of the PoA to transfer her property was punishable under Sections 420, 423, and 424, of the Indian Penal Code 1860 [IPC]. Our imposter Miss X could not be found, so other offences of cheating by impersonation were presumably not added. The Court of the Magistrate where the case went for trial added offences of forgery punishable under Section 465 IPC. Ultimately, both accused were only convicted of the forgery offence and not for cheating Doris Victor. An appeal was filed with the Sessions Court, which upheld convictions. This was then reversed by the High Court, and the victim approached the Supreme Court appealing that decision acquitting both accused.

Procedural Doubt and Stray Observations?  

The victim filed an SLP before the Supreme Court and it was first taken up in August 2008. That is before the Criminal Procedure Code gave victims a right to appeal against acquittals (recently the subject of some discussion on the Blog). Does that mean the Court was allowing such appeals in the guise of an SLP even though no statutory right to appeal existed? The SLP was converted into an appeal in 2010, but does that take away this initial hurdle? I will hopefully explore that question more generally in subsequent posts.  

I gave the lengthy factual background because it matters for appreciating, and critiquing, observations that the Two Justices' Bench made in Sheila Sebastian about the investigation and prosecution. At Paragraph 28, the Court had this to say: 

"[This case] is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. ... The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA."

It is not unusual to find cases fall apart at trial (More than 50% of trials end in acquittal as per the last NCRB data release), so these observations would not be out of character. Except, it doesn't seem that the case here suffered because of lapses by the investigation. I haven't been able to trace the High Court decision, but recall that the police never foisted a forgery charge. It did not allege that there was a forgery. Instead, it foisted Section 423, that the PoA contained false statements "relating to the consideration for such transfer ... or relating to the person or persons for whose use or benefit it is really intended to operate", which it did. So, if the police never made a forgery case, why is it being blamed for it falling apart?

Strict Interpretation and Section 464 IPC

Which brings me to the forgery allegations that were the focus of Sregurupriya's post. She critiqued the Court's move to differentiate causing a false document to be made from making a false document (Paragraph 25) which justified the acquittals because neither Jawaharaj nor Rajapandi made a false document as under Section 464 IPC. The Court held that such a reading was the only one warranted by a "strict interpretation" of the provision - a rule that requires a Court to read ambiguities in a penal statute in the light most favourable to the accused.

First, a point that was left out in the earlier post. The Court considered Explanation 2 to Section 464 IPC material for the case. This explanation talks about creating a false document in the name of a fictitious or dead person, for someone to believe that it was made by a real person. But, we know that Doris Victor was a real person who was very much alive at the time the documents were created. So how would that explanation be of any relevance? Miss X was pretending to be Doris Victor, which is not the same thing (See Section 416 IPC). Is the Court now telling us that impersonating a real person for making a document amounts to creating it in the name of a non-existent person? 

Moving on to buttress the critique made in the post. The Court packs its reasoning in two paragraphs - 25 and 26 - and it is difficult to untangle the many strands. But once we do so, some logical flaws clearly emerge. In Paragraph 25 the Court holds that "a charge of forgery cannot be imposed on a person who is not the maker of the same", but that does not tell us anything besides repeating what Section 463 already says: forgery requires making a false document. The peculiar problem seems to come from Section 464 which explains what is "making" a false document: it says that a person "makes a false document" by making it! No wonder we are stuck in an endless loop. What Sheila Sebastian tells us is that putting your signatures on documents you know to be false that you helped create and then executing them is not making a false document. If that isn't, then what is? And, to echo Sregurupriya, what happened to the other ways of making false documents: signing, sealing or executing them?

Conclusion

Sheila Sebastian makes some additions to the law on forgery as it exists. Sregurupriya's post, and this short postscript, argue that these additions are far from desirable. The truncated reasoning behind the conclusions leaves many questions begging. That, in the long run, is a recipe for chaos across as trial courts across the country will now have to grapple with understanding when can an accused person sign and execute a false document, but still not make it. 

Sheila Sebastian v. R Jawaharaj: Strict Interpretation or Retroactive Law making?

(I am pleased to host a Guest Post by Ms. Sregurupriya Ayappan, a Third Year Student at NLSIU Bangalore) 

Recently, in Sheila Sebastian v. R. Jawaharaj, a Two-Justices’ Bench of the Indian Supreme Court, having “strictly interpreted” the provisions defining forgery in the Indian Penal Code 1860 [IPC], concluded 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” (Para 25). In this post, I argue that (a) the Court has adopted a colloquial interpretation of “making a false document” rather than strictly interpreting Section 464 IPC and has done away with certain ingredients of the offence present in the provision and, (b) it has improperly applied the precedents it has relied upon. 

Strict Interpretation of the Provision 

The facts of the case, simply put, are this. Accused No. 1, with the help of someone impersonating as a certain Doris Victor (now deceased), obtained a Power of Attorney [PoA] in his name. By virtue of this PoA, he then executed a mortgage deed in favour of the Accused No. 2. This mortgage deed was signed by the A-1 (Para 10). Further, he had also affixed his signature on the original PoA after receiving it (Para 13). So, the crux of the matter was whether the actions of the A-1 would amount to making a false document as defined in Section 464 IPC. Specifically, the “First” part of that provision which says that: 

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;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature],
with the intention of causing it to be believed that such document or part of document, electronic record or [electronic 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; 

The Court observed that “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’” (Para 26). I disagree, for a strict interpretation of the provision makes it apparent that execution of the mortgage deed in itself amounts to forgery. 

There are several reasons supporting such a reading. First, A-1 acted “dishonestly”. Section 24 IPC defines “dishonestly” as something which causes wrongful loss or wrongful gain to someone. The act of executing the mortgage deed would indeed cause wrongful loss to the real owner of the property and wrongful gain to the accused persons thereby meeting the ingredients of Section 24 IPC. Section 25 IPC defines “fraudulently” as something that is done with the intent to defraud. The word “defraud” is not defined in the statute. In Vimla (Dr.) v. Delhi Admin (AIR 1963 SC 1572), the expression “defraud” was broken into two elements: deceit and injury to the person deceived. While the accused has clearly committed deceit by making the concerned authorities issue the PoA, it cannot be said that the injury is caused to the persons deceived. However, since, Section 464 IPC states dishonestly or fraudulently, it would suffice that one of these can be shown. 

Second, A-1 signed the PoA. He also signed and executed the mortgage deed. Third, he signed and executed the deed with the intention of causing it to be believed that it was done so by the authority of the late Doris Victor by whose authority he knows it was not executed by virtue of not having a genuine PoA. Finally, although illustrations are not binding on the interpretation of the operational part of the provision, it is helpful to look at Illustration (b) while deciding the scope of “making a false document”: 

(b) A writes the word “accepted” on a piece of paper and signs it with Z 's name, in order that B may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the bill as though it had been accepted by Z. A is guilty of forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A 's intention, B is also guilty of forgery. 

Here, despite B not having affixed his signature or modified any portion of the bill of exchange can be held guilty of forgery if he goes ahead and executes the bill with the knowledge of A’s intention. It seems that when the Court states that the accused cannot “be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery,” it interpreted “making a false document” as it is in common parlance and not as per the statutorily laid down definition in Section 464 IPC resulting in a distinction between “making” and “causing to be made” that is not envisaged by the provision. 

Improper Application of Precedents 

The Court relies on four judgements in its interpretation of Section 464 IPC. It is my contention that these precedents are either not relevant to the case at hand, and if they are, do not help the court in arriving at its decision. 

In Dickins v. Gill, (1896) 2 QB 310, the issue before the Queen’s Bench was the interpretation of the phrase “lawful excuse.” Here, a person had ordered a fictitious die to be made, the possession of which was prohibited by law, and had taken the defence of lawful excuse because it was innocent use. The Supreme Court has, without context, relied on a statement of Justice Collins, who while distinguishing between possession and making, stated “it is therefore necessary to introduce the word 'knowingly' in that case, whereas it is not necessary in the case of ‘making,’ which in itself involves a conscious act on the part of the person who does it.” He did not make a distinction between “make” and “cause to be made”. Ironically, in this case, the person concerned had caused a fictitious stamp to be made although the analysis is restricted to whether or not subsequent possession was with lawful excuse. 

Further Section 464 IPC defines what “making a false document” is and this includes within its fold making, signing, sealing and executing a document. It is extremely curious, that despite the statute specifying the scope of making, the Supreme Court concluded that “an offence of forgery cannot lie against a person who has not created it or signed it” (Para 20, emphasis mine). What is the reason for doing away with other ingredients, namely, sealing and executing, from the construction of making? And what is the scope of the term “create” which finds no place in the provision? 

The Supreme Court also relied on Md. Ibrahim and Ors. v. State of Bihar and Anr., (2009) 8 SCC 751, (Two Justices' Bench) and inferred from it that “mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant" (Para 22, emphasis mine). The Court in the present case also cited excerpts from Ibrahim which differentiate between execution generally and execution by “impersonating” or “falsely claiming to be authorised or empowered” (Para 23). Significantly, the material facts of Ibrahim were completely different from the case at hand. Ibrahim had a person with a bona fide belief that he had a claim to the property which he sought to convey. Hence, in that case, the ingredients “fraudulently” and “dishonestly” in Section 464 IPC were not satisfied. In fact, the excerpted construction of the provision in Ibrahim goes against the inferences drawn by the Court in the present case. In Ibrahim, the Court stated that, “a person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorised by someone else …” (Para 11, emphasis mine). Here, the accused person clearly executed a mortgage deed claiming to be authorised by the deceased Doris Victor. Hence, according to this interpretation, he has indeed made a false document. 

In Mir Naqvi Askari v. CBI (2009) 15 SCC 643, bank officials were said to have abused their position and committed various offences to give undue pecuniary advantage to some persons. One of the charges was forgery of valuable security and hence, the Court interpreted the "First" clause of Section 464 IPC to mean “the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made.” The term “falsified” here encompasses all the ingredients of Section 464 excerpted above, and "natural inferences" must not be drawn from the word. Rather, one must go back to the provision. 

In Sheila Sebastian, the Supreme Court endorsed the High Court's reliance on Guru Bipin Singh v. Chongtham Manihar Singh & Anr, 1996 (11) SCC 622, which used Explanation 2 to Section 464 IPC to reason that for forgery, the making of a false document is essential (Paras 5, 25). In that case, the issue was whether an author had forged the writing of a prominent historical figure. There was no contention by either side that the accused author had either made, signed, sealed or executed the writings of the historical figure. Rather, he claimed that already existing writings were by the concerned figure. The facts materially differ from those in Sheila Sebastian. Here, the accused did in fact sign the PoA and sign and execute the mortgage deed relying on the authority which the PoA did not in fact confer since it was not genuine. Further, strictly speaking, Explanation 2 has no relevance whatsoever in the present case. At the time the spurious PoA was drawn, Doris Victor was alive. Hence, the document was not made with the intention that it be believed it was made during the lifetime of the person. Neither was Doris Victor a fictitious person. It is also quite puzzling that the Court relies on this Explanation to arrive at the foregone conclusion that Section 464 IPC is a prerequisite for constructing the offence under Section 463 IPC. Hence, there does not seem to be a “plethora of cases which held that making of a document is different than causing it to be made” and if there are, they have not been referred to by the Court. 

Conclusion 

Strict interpretation of penal statutes is one of the core principles of criminal law. The reason for this is two-fold. If the court gives statutes a wider meaning, it would amount to retroactive law making and it would be unfair to convict a person on such a construction of the offence without fair warning. It also helps the courts beneficially interpret the statute in favour of the accused by adopting a narrow construction given the severe sanctions that follow conviction. However, in no way can this empower the courts to indulge in retroactive law making of another kind where they dilute the legislative intent and do away with entire ingredients of the statutory provision in order to benefit the accused. Strict interpretation, after all, demands utmost faithfulness to the statutory text which the Court seems to have lacked in this case.

Cheating in the IPC - Interesting Overlaps

Section 420 of the Indian Penal Code, 1860 [IPC] is perhaps one of the most famous provisions in the Code, right up there with Section 302 IPC. In this short post, I discuss an interesting point of overlap between Sections 415 IPC and 417 IPC, and their more famous cousin Section 420 IPC. 

Reading the Text 

Section 415 IPC defines cheating and deals with a variety of acts and omissions, which should be clear below:

A. Whoever, by deceiving any person, 

A.1 Fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or

A.2 Intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and

A.2.1 Which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property

Is said to cheat

The fulcrum is deception - everything else flows from that. Deceiving is the conduct required of the Accused. This conduct must result in either of the two sets of consequences in A.1 and A.2. A.1: an unlawful transfer/retention of property caused through deception. A.2: doing/not doing a thing which is done because of the deception and causes/is likely to cause harm or damage. These consequences have different mens rea terms associated with them. The Accused must fraudulently or dishonestly induce the transfer of property [Fraudulently is defined in Section 25 IPC and Dishonestly is defined in Section 24 IPC]. Or, the Accused must intentionally induce the doing/not doing of a thing. If the conduct and consequences are brought about with the required mental element, a person is said to cheat.

Cheating is punished in Section 417 IPC, which simply states "whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both". A slightly different form of cheating is punished by Section 420 IPC, which states:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 

Whoever cheats invokes the definition under Section 415 IPC. The provision then requires the person cheating (X) to dishonestly induce the person deceived to delivery any property to any person. The difficulty should be apparent here. The first part of the definition in Section 415 IPC itself provided that cheating can occur in situations where X deceives Y and dishonestly induces Y to deliver any property to any person. Effectively, then, the first part of Section 420 IPC reads Whoever cheats, and thereby cheats, before moving to the bit about making, destroying or altering valuable securities. This oddity remains merely an interesting drafting problem when viewed independently. But recall that Section 417 IPC punished cheating in all its hues, and looks more benign when compared with Section 420 IPC. 417 is non-cognizable (no arrest without warrant), bailable (bail as a matter of right), and inflicts imprisonment up to one year. Section 420 IPC is cognizable (arrest without warrant), non-bailable (no right to bail), and allows for imprisonment up to seven years. 

Cheating through History

So how do we resolve this? One step would be to see if this was discussed by the drafters of the Code. Looking at Lord Macaulay's 1838 Bill we find cheating offences were present very differently. Section 394 of the Bill punished 'cheating', Section 392 defined cheating as follows:

Whoever, by intentionally deceiving any person, fraudulently induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or to affix a seal to any substance, or to make, alter, destroy the whole or any part of a document which is, or purports to be, a valuable security, is said to "cheat" 

There was no Section 420 IPC equivalent. In fact, the comments contain an interesting discussion on how the framers actively decided not to render all kinds of deceptions criminal for that would that defeat the rule of criminal law being the last resort and make the penal code a law to enforce morals. This attitude changed in 1860 as can be seen with the addition of the second kind of consequences (described as A.2 in the discussion above). Section 420 IPC was also added to the mix, and a nearly contemporaneous commentary to the promulgation of the Code states that "increased punishment may be awarded where the cheating causes any property to be delivered 'dishonestly', that is where the it is of the kind which the first clause of the definition in Section 415 describes ..."  [Morgan & Macpherson, The Indian Penal Code 1860, p. 378 (1863)]. 

So, the scheme possibly intended was to demarcate the two sets of consequences into two punishing provisions. Assuming this is the case, then I argue the drafting of Section 420 IPC leaves one wanting for clarity. The provision confuses in trying to club the consequences of delivering property, and making, altering or destroying valuable securities.   

Conclusion

Since the IPC came in 1860, there have been a few decisions by High Courts considering the issue that is the subject of this post. Most of them concur with what appears to have been the legislative intent - Section 420 IPC punishes cases where deception results in the dishonestly inducing a person to deliver property, while Section 417 IPC punishes other forms of cheating not accompanied by delivery of property [See e.g. Supdt & Legal Remembrancer v. Manmatha Bhushan Chatterjee, AIR 1924 Cal 495; Shree Krishna Polyster v. State (GNCT of Delhi), Crl. M.C. 779/2005 decided on 23.10.2007]. It would have been a more elegant solution for the Code to include the consequence pertaining to valuable securities in the definition in Section 415 IPC itself, and then have the different punishment clauses. An amendment to that effect would help rid the confusion existing to this day.

Snippet - Unintended amendments to the Crime of Forgery?

My attention was drawn to a rather startling fact recently [see here for the one piece I found discussing this online]. The definition of forgery under Section 464 of  the Indian Penal Code 1860 [IPC] today is not what it used to be - and is commonly still assumed to be by many laypersons and lawyers alike. The cause of this is the series of amendments made to the IPC by the First Schedule to the Information Technology Act 2000 [the link leads to all statutes passed in 2000, scroll around to find the this particular one].

Section 464 before the amendment read as follows:

First - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a 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 ... [emphasis supplied]

The provision after the amendment reads as follows:

A person is said to make a false document or false electronic document or false electronic record - 

First - who dishonestly or fraudulently - 

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any electronic signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature

with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed executed, transmitted or eaffxed 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 ...    

The last bit in bold has curiously disappeared with the amendment. This has important ramifications for it means that antedating documents no longer constitutes forgery. Mr. Mahesh Jethmalani argues that it is possible to rebut this conclusion by arguing that this consequence is the result of an inadvertent legislative oversight, rather than the product of explicit legislative design. This invokes the doctrine of casus omissus, which has been invoked by courts to remedy patent legislative defects [the Madras High Court in 2007 discussed the concept at length in Sundaram Brake Linings Ltd. v. Kotak Mahindra Bank Ltd.], albeit rarely. The argument certainly has merit in this case. The purpose of the amendments made by the Information Technology Act to the IPC was to broaden the scope of the offences by including the electronic medium within them. And no discussion in parliament on the Information Technology Bill mentioned anything about removing a substantial portion of the forgery offence.

It has been nearly sixteen years since the amendments were passed and this issue has not received any judicial attention to my knowledge. From the latest I've heard though, a petition is currently pending in the Supreme Court where this issue has been flagged for consideration. It will be interesting to see which way the decision goes, whenever it does come.