The author argues that the Supreme Court has erred in holding that there is no forgery and cheating in a case involving the forging of a husband’s signature on the passport application of the child by the mother.
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IN January, the Supreme Court delivered a significant verdict on the offences of cheating and forgery in Mariam Fasihuddin & Anr versus State by Adugodi Police.
The first appellant was accused of obtaining a passport for her child by forging her husband’s signature on the passport application. Opining that the “elementary ingredients of ‘cheating’ and ‘forgery’ are conspicuously missing,” the Supreme Court quashed the proceedings pending before the magistrate.
Though the court may have rightly concluded that the case was lodged as a counterblast and that continuation of the proceedings would amount to an abuse of the process of law, the interpretation of the ingredients of the offences appears to be flawed.
Background: A passport application and a counterblast to a cruelty case
The first appellant and the second respondent were married to each other. In April 2010, the first appellant approached a women’s police station in Bengaluru and lodged an FIR alleging cruelty and wrongful confinement by the second respondent and his family.
In April 2010, the first appellant approached a women’s police station in Bengaluru and lodged an FIR alleging cruelty and wrongful confinement by the second respondent and his family.
Subsequently, in May 2010, the second respondent informed the Adugodi police station that the first respondent and her father had forged his signature on his child’s passport application and obtained a passport when he was residing in the United Kingdom.
The police registered an FIR under Sections 468 (forgery for the purpose of cheating), 420 (cheating and dishonestly inducing delivery of property) and 471 (using as genuine a forged document), read with 34 (common intention) of the Indian Penal Code.
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Thereafter, the police investigated the case and filed a police report (chargesheet) for the offence under Section 420 read with Section 34 of the IPC, omitting Sections 468 and 471.
Aggrieved by the dropping of provisions related to forgery, the second respondent or informant filed an application under Section 173(8) of the Code of Criminal Procedure, 1973 seeking further investigation.
The magistrate allowed the application, directed further investigation and permitted him to furnish evidence before the investigating officer. Eventually, a supplementary chargesheet was filed for the offences under Sections 468, 471, 120-B (criminal conspiracy) and 201 (causing disappearance of evidence or giving false information to screen the offender) of the IPC and Section 12 of the Passport Act, 1967.
The supplementary chargesheet relied on a forensic report issued by a private agency which opined that the signature on the passport application did not “signify close resemblance” with the second respondent’s specimen signatures.
Interestingly, the State Forensic Science Laboratory had declined to provide a conclusive report as the passport office had not preserved the original application and only a scanned copy was seized by the police.
The supplementary chargesheet arraigned a passport officer as an accused for providing false information and helping the accused destroy evidence. The magistrate took cognisance of the supplementary chargesheet and refused to discharge the appellants.
In 2021, the Karnataka High Court refused to quash the case against them on the ground that the allegations warranted a full-fledged trial. Aggrieved by the high court’s dismissal of their criminal revision petition, the appellants approached the Supreme Court.
Contentions of the parties
The counsel for the appellants contended that the second respondent had filed the case as a counterblast to the first appellant’s case alleging cruelty and wrongful confinement.
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He pointed out that the second respondent had consented to the issuance of the passport and the same was evident by his act of arranging for a sponsorship letter mentioning the passport number while securing a visa for his wife and child to travel to the UK.
The supplementary chargesheet relied on a forensic report issued by a private agency which opined that the signature on the passport application did not “signify close resemblance” with the second respondent’s specimen signatures.
It was also contended that reliance on a private forensic agency’s report on forgery was erroneous when the State Forensic Science Laboratory had declined to provide a conclusive opinion on forgery.
The counsel for the second respondent refuted the allegations and stressed that the second respondent was not in India when the passport application with his signature was submitted.
He drew the court’s attention to the accused passport officer deliberately withholding the original passport application which amounted to destruction of evidence. Lastly, he contended that the veracity of the forensic reports could be ascertained only during the trial.
Court’s reasoning: Was the second respondent cheated?
Before analysing the court’s reasoning, it is pertinent to note that it proceeded on the premise that the person who cheated was the second respondent. Having identified the ingredients of Section 420 as deception and fraudulent or dishonest inducement to deliver any property to any person, the court formulated the following question for inquiry: “How does the act of forging signatures on the passport application, aimed at obtaining the minor child’s passport, amount to inducing Respondent No. 2 to relinquish any property or valuable security?”
It then went on to hold that “the aforementioned act does not entail inducement leading to the parting of any property by Respondent No. 2. The nature of the property which can be claimed to have been relinquished or the tangible loss, damage, or injury, if any, suffered by Respondent No. 2 are not visible at all.”
However, with due respect to the court, this line of reasoning fails to appreciate the fact that if the allegations are true, the person deceived was the officer who issued the passport in the discharge of his statutory powers.
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In 1977, a three-judge Bench of the Supreme Court held that inducing the passport authority to issue a passport based on false representations in the passport application amounted to an offence under Section 420.
It specifically held that a passport was ‘property’ within the meaning of Sections 415 and 420 of the IPC. This precedent has not been discussed in the judgment.
The magistrate took cognisance of the supplementary chargesheet and refused to discharge the appellants.
Furthermore, in Paragraph 16 of the judgment, the court observes that if the allegations were assumed to be true, it would “undoubtedly constitute an unlawful act” but it would not amount to an offence as no benefit had accrued to the first appellant by the issuance of a passport to the child as it was the minor child’s gain.
However, Sections 415 and 420 do not require delivery of property to the accused as these provisions use the expression “deliver any property to any person”.
Truncated interpretation of forgery
Section 463 defines forgery as follows: “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.”
However, in Paragraph 22 of the judgment, the court explains the offence of forgery in the following words: “Simply put, the offence of forgery requires the preparation of a false document with the dishonest intention of causing damage or injury.”
This is a truncated interpretation of Section 463 which omits the other ingredients such as supporting a claim and causing a person to part with property. As a result, the court went on to conclude that the allegations do not attract the offence of forgery.
It is also pertinent to note that the court went on to observe: “The offences of ‘forgery’ and ‘cheating’ intersect and converge, as the act of forgery is committed with the intent to deceive or cheat an individual” when the IPC separately criminalises simple ‘forgery’ in Section 465 and ‘forgery for purpose of cheating’ in Section 468. Therefore, it is not necessary that forgery is punishable only if there is an intention to cheat.
With due respect to the court, this line of reasoning fails to appreciate the fact that if the allegations are true, the person deceived was the officer who issued the passport in the discharge of his statutory powers.
It is useful to refer to the decision of the Supreme Court in G.S. Bansal versus The Delhi Administration, 1967. The accused had forged his father’s signature on an application seeking the transfer of saving certificates to himself though his father had already died.
The accused contended that he was the sole heir and as he was entitled to receive the money, he had not made a wrongful gain or caused a wrongful loss to anyone.
However, the court held that as the accused resorted to forgery to avoid waiting for a succession certificate and satisfying the authority about heirship, he had made a wrongful gain.
The court went on to observe: “[O]n the facts, his intention at the time when he made out the false documents was to short-circuit the alternative procedure open to him and receive the money without going through the expense and trouble involved therein…
“Even otherwise he secured a non- economic advantage as he got himself relieved of the trouble of getting the certificate of proof to the satisfaction of the rationing authority and the Post Master General of his credential to receive the money.”
A perusal of the Passport Rules would reveal that a minor’s passport application ordinarily requires the consent of both parents. If only one of the parents is in a position to sign the application, a separate and more elaborate procedure has been prescribed.
Therefore, the court may not be right in declaring that obtaining a passport for a child by allegedly forging the child’s father’s signature does not involve any gain or advantage.
Ramifications
As stated at the beginning of the piece, the court may have been right in opining that the case was filed as a counterblast to victimise the first appellant.
The accused contended that he was the sole heir and as he was entitled to receive the money, he had not made a wrongful gain or caused a wrongful loss to anyone.
While it is possible that the accused were innocent, the court’s reasoning is unsatisfactory and incongruous which makes it a problematic precedent on cheating and forgery.
If the court felt that continuation of the trial would be an abuse of law due to the peculiar facts, it should have invoked its constitutional power to do complete justice or reminded the trial court to examine the applicability of the general exceptions contained in the IPC and decide the case expeditiously.
Divergent interpretations of penal provisions undermine the much-needed certainty in criminal law.
