061-NLR-NLR-V-50-THE-ATTORNEY-GENERAL-Appellant-and-ANTHONIPILLAI-Respondent.pdf
WINDHAM J.—Attorney-General v. Anthonipillai
227
1948Present: Nagalingam and Windham JJ.
THE ATTORNEY-GENERAL, Appellant, andANTHONTPHJLAI, Respondent
S. C. Ill—D. C. (Criminal), Jaffna, 4,350
Penal Code—Using as genuine a forged permit—Document not legally valid—Forgery—Must document be capable of effecting the fraud ?—■Section 459.
In order to constitute forgery it is not necessary that the false documentshould be such that, if it were in truth what it purported to be, it wouldpossess some legal validity.
Appeal from a judgment of the District Judge, Jaffna.
A. C. AUes, Croton Counsel, for the Attorney-General, appellant.
H. W. Jayewardene, for 1st accused respondent.
N.M. de Silva, for 2nd accused respondent.
Cur. adv. wit.
October 21, 1948. Windham J.—
This is an appeal by the Attorney-General on points of law againstthe acquittal of the two accused in the District Court on the followingcharges. Count 1 was against both accused, under section 459 of thePenal Code read with section 113b, charging them with having, betweenMay 8 and 12, 1946, at Jaffna, Elephant Pass and Marawila, conspired touse as genuine a forged permit to transport 80 hundredweight of redonions from Jaffna to Colombo purporting to have been issued to oneS. Saravanamuttu of Puloly West, Point Pedro, knowing or havingreason to believe it to be a forged document. Count 2 charged the 1staccused individually with the same offence, namely, using the permitknowing or having reason to believe it to be a forged document, contraryto section 459. Count 3 Charged the 2nd accused with abetting the 1staccused in the commission of the offence under count 2. Count 4 chargedthe 1st accused with cheating, namely, with having, in the course of theabove transaction, deceived A. Muttuthamby, “ Assistant GovernmentAgent (Emergency), Jaffna ” (later amended to read “ Staff Officer,Internal Purchase Scheme ”) into the belief that the application for thepermit referred to in count 1 was signed by one S. Sara vanamuttu ofPuloly West, whereas in truth and in fact he knew it was not signed byhim, and thereby inducing the said A. Muttuthamby “ to cause ” the saidpermit “ to be issued to the said Saravanamuttu, and that he hasthereby committed an offence punishable under section 403 of the PenalCode ”. Count 5 charged the 2nd accused with abetting the 1st accusedin this offence of cheating under count 4.
The prosecution evidence, which was accepted by the learned DistrictJudge, was briefly to the following effect. On May 8, the 2nd accused,a Government clerk, accompanied by the 1st accused, presented toMr. Muttuthamby an application form for a permit to transport onions,
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saying that it was the 1st accused who had brought the application,and that it was signed by S. Saravanamuttu, the wholesale dealer of PointPedro. The application did in fact purport to be in the name of “ S.Saravanamuttu of Puloly West, Point Pedro ”, and it was for a permitto transport “ 80 lbs. of red onions to Colombo by road for my domesticconsumption The prosecution evidence showed, however, that thewell known wholesale dealer S. Saravanamuttu, whom the 2nd accusedrepresented to he the applicant, was not Saravanamuttu the applicant;and Mr. Muttuthamby made it clear in his evidence that he allowed theapplication to transport the 80 lbs. of onions, which he considered anexceptionally large quantity, because Saravanamuttu “ was a goodlanded proprietor ” ; in other words, he allowed it on the strength of the2nd accused’s misrepresentation. Throughout this interview the 1staccused was present, and said nothing. Mr. Muttuthamby accordinglyallowed the application, and signed the permit P 2. When he signed it,however, the space in which the quantity permitted to be transportedhad to be inserted was left blank. But in the counterfoil to the permit,which had been filled in by the 2nd accused, the figure “ 80 lbs ” appeared,corresponding to the application. Upon noticing the omission in thepermit Mr. Muttuthamby accordingly, with more trustfulness thancaution, authorized the 2nd accused to fill it up. His evidence on thepoint was as follows :—“ I noticed the omission and asked the 2ndaccused to fill it up. At the time it was brought to me the counterfoilwas filled up as 80 lbs. and I cheeked it with the application P 1. Whilesigning I noticed the omission, and the 2nd accused undertook to fillit up ”. This clearly constituted an authorization by Mr. Muttuthambyto the 2nd accused to fill in the blank space in conformity with the appli-cation and the counterfoil, in short to insert the amount “ 80 lbs.”, andno other or larger figure.
Both accused then departed. Two days later the 1st accused engageda lorry at Jaflha and loaded 80 hundredweight of onions into it. The2nd accused joined the 1st accused on the lorry before it had left Jaflha,and the two were seen talking together on it. At Elephant Pass thelorry was allowed to proceed southwards on its journey to Colombo,on the strength of the permit P 2, in which the blank space for the quantityhad meanwhile been filled in with the figure “ Eighty cwt.” (hundred-weight), in what was later shown to be the handwriting of the 2nd accused.At Marawila the lorry met with an accident and the 1st accused wasinjured and sent to the General Hospital, Colombo. The inquiry intothe accident brought to light the circumstances leading to the presentcharges. From hospital the 1st accused handed to one G. Selvasamythe permit P 2 and an authorization in the words—“ Please allow bearer
Selvasamy to remove the load of onions ”. The name “ G. Selvasamy ”was written immediately above the name “ S. Saravanamuttu ” whichhad been scored out. –
Such was the evidence for the prosecution, which the learned DistrictJudge accepted. He proceeded, however, to give judgment (apparentlywithout calling upon the accused to answer the charges) acquitting bothaccused on all counts, mainly upon the legal grounds which are thesubject of this appeal.
– WINDHAM J.-—Attorney-General v. Anthonipillai229
With regard to the charges of cheating, in counts 4 and 5, the learnedDistrict Judge acquitted the accused on the ground that the prosecutionhad failed to prove (as indeed they did fail) that the act which Muttu-thamby was deceived by these accused into doing was likely to causedamage or harm to Muttuthamby in body, mind, reputation, or property,or damage or loss to the Government, as required by Section 398 of thePenal Code, which defines cheating. Now section 398 contemplatestwo distinct types of inducement, constituting two distinct types ofoffence, as was pointed out in Ghrisiinahamy v. Gonderlag, Inspector ofPolice l. The first is fraudulently or dishonestly to induce the persondeceived to “ deliver any property to any person, or to consent that anyperson shall retain any property The second is intentionally to inducethe person deceived to ,£ do or omit to do anything which he would notdo or omit if he were not so deceived, and which act or omission causesor is likely to cause damage or harm to that person in body, mind, reputa-tion, or property, or damage or loss to the Government
From this it is clear that where the person is induced to deliver propertyor to consent to its retention, that alone is sufficient to satisfy section 398,
e., under the first part of it; whereas if he is induced to do or to omit todo anything that he would not otherwise have done or omitted to do,other than delivering or consenting to the retention of property, thenthe second part of the section applies and the Grown is required to provein addition that the act or omission induced is one likely to cause damageor harm to the person induced, in body, mind, reputation or property,or damage or loss to the Government. The Crown having failed to provethis, the charges under section 398 could only succeed if it could be shownfirst that they were framed under the first part of the section, and secondly,that the necessary elements of that part were proved, namely, thatMr. Muttuthamby was induced to deliver property or to consent to itsretention. Now from a perusal of the relevant charge, count 4, it wouldappear at first sight that the Crown intended to charge the 1st accusedunder the first part of section 398, for it charges him with having “ com-mitted an offence punishable under section 403 ” ; and section 403 isa section prescribing an enhanced punishment (imprisonment up toseven years) for cheating in particular circumstances, of which the onlyone relevant to the present case is where the offender thereby inducesthe person deceived to deliver any property to any person, as in thefirst part of section 398. Had the Crown intended to charge the accusedwith the offence set out in the second part of section 398, the offence wouldhave been stated to be punishable not under section 403 but undersection 400, which prescribes the general punishment for cheating.
But whatever may have been the intention of the prosecution in fram-ing count 4, they failed to give effect to it; for that count, in setting outthe particulars of the offence, does not allege that the 1st accused by hisdeception induced Muttuthamby to deliver any property to anyone, asrequired by the first part of section 398, but that he induced, him to“ cause the permit to be issued to Saravanamuttu Thus even grantingthat the permit constituted “ property ” for the purpose of the first partof section 398, the count does not allege that Muttuthamby delivered it1 (194,6) 47 N.L.R. 382.
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to anybody. Nor was it proved that Muttuthamby in fact deliveredthe permit to Saravanamuttu. Clearly the particulars of count 4 allegethat Muttuthamby was induced, not to deliver property, but to do anact which he would not have done but for the deception, namely, to causethe permit to be issued in the name of Saravanamuttu, and the evidenceshowed n6 more. In short the charge falls under the second part of section398 and not the first part. The learned District Judge was thereforecorrect in holding that, in the absence of proof that the act caused orwas likely to cause damage to Muttuthamby, or damage or loss to theGovernment, the charge of cheating against the 1st accused, undercount 4, and with it the charge against the 2nd accused for abetting himtherein, under count 5, must fail. The appeal, in so far as it relates tothese two counts, is accordingly dismissed.
With regard to the charges under section 459, counts 1, 2 and 3, whichrelate to the use of the forged permit as genuine, two legal points havebeen argued. First, it is contended that the permit was not a forgeddocument at all, on the ground that the alleged insertion by the 2ndaccused of the words “ eighty cwt.” in the blank space, after its signatureby Muttuthamby, did not amount to “ making a false document”-within the meaning of section 453. That section lays down that a personis said to make a false document who, inter alia, “without lawful authority,dishonestly or fraudulently, by cancellation or otherwise, alters a documentin any material part thereof, after it has been made or executed either byhimself or any other person . .. .” Now, what the 2nd accused did to
the permit after its signature by Muttuthamby was clearly done withoutlawful authority, for the latter only authorized him to insert the words“ 80 lbs.”, in conformity with the application and counterfoil, and not toinsert “ 80 cwts”. But it is argued that the 2nd accused did not “ alter ”the document, in that he did not change something in the documentinto something else, by erasing or scoring out what was there before, butmerely added something to it, in a space which was blank. This is in myview a quite untenable restriction of the word “ alters ” in the section.First, the section speaks of altering “by cancellation or otherwise ’ ’.Secondly, the ordinary accepted meaning of the word " alter ” is to makesomething different from what it was before, irrespectively of whetherthe change' is effected by addition, deletion or substitution ; if Imight venture a random instance, a clean shaven man may properly besaid to alter his appearance by growing a beard (i.e., addition) no lessthan by shaving his head and wearing a wig (i.e., substitution). Thirdly,the illustrations (c) and (d) given under this section as examples ofmaking a false document, namely, by inserting a sum in a blank cheque,without authority, are clear instances of “alteration” by materialadditions inserted in a blank space. This argument accordingly fails.
The next point of law raised is based on the fact that the prosecutionfailed to prove that Mr. Muttuthamby was a person authorized orempowered to issue permits for the transport of onions. The relevantpiece of legislation, produced as exhibit P 9, is the Controlled Articles(Chillies and Onions) Order, 1943, and with the finding of the learnedDistrict Judge on its requirements, and on the evidence before him,I see no reason to disagree. He found as foEows :—“ It would appear
WINDHAM J.—Attorney-General v. Anthonipillai
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from document P 9 that it is only the Civil Defence Commissioner or aperson authorised in that behalf by the Civil Defence Commissioner,who could validly issue a permit. Mr. Muttuthamby does not claimthat he was Civil Defence Commissioner during the relevant period,nor has any document been produced to show that the Civil Defence
Commissioner had authorized Mr. Muttuthamby to issue permits
Mr. Muttuthamby is not an authorized person, and therefore any permit
issued by him isa useless piece of paper. No doubt the authority
at Elephant Pass thought it valid and permitted the onions to pass his-barrier, but that makes no difference. The permit P 2 is invalid ”.The learned District Judge went on to point out that, although the words-“ Civil Defence Commissioner ” in the above legislation were, at a dateprior to the issue of the permit, amended to read “ Director of FoodSupplies ”, the position remained the same, since Mr. Muttuthamby was-not authorized to issue permits by the Director of Food Supplies, nor didhe sign the permit for or on behalf of the latter but “ for Deputy FoodController ”.
Thus far I see no cause to disagree with the findings of the learnedDistrict Judge, on the evidence before him. But he goes on to drawfrom them the legal conclusion that, since the permit was, for the abovereasons, invalid ab initio, therefore the unauthorized alteration of itcould not constitute a forgery for the purpose of section 452, and that itwas not therefore a forged “ document ” such as it is required to be inorder to support these charges under section 459 of the Penal Code. It wasentirely on this ground as regards the 2nd accused, and partly on thisground as regards the 1st accused, that he dismissed the charges againstthem under counts 1, 2 and 3. The learned District Judge accepted thecontention, which was advanced before us again on appeal, that inorder to constitute forgery the false document must be such that, if itwere in truth what it purports to be, it would possess some legal validity.
In short the test in the present case, it was argued, is whether thepermit P2, had it in truth been issued by Mr, Muttuthamby for thetransport of 80 hundredweight (and not merely 80 lb.) of onions, wouldhave been a legally valid permit. And since by reason of Mr. Muttu-thamby’s lack of authority to issue such permits, it had no legal validity,no matter for what quantity it was issued, it is argued that it could notbe the subject matter of a forgery.
This argument is quite unsupported by anything in the, wording ofsections 452 and 453 of the Penal Code, or in the definition of “ document ”in section 27. .It appears, however, to be based on a passage quoted inRatanlal and Thakore’s “ The Law of Crimes ”, 16th edition, at page1119, to the effect that to constitute forgery “ it is essential that the falsedocument, when made, must either appear on its face to be, or be infact, one which if true, would possess some legal validity, or in otherwords must be legally capable of effecting the fraud intended ”. Learnedcounsel for the respondents have stressed the words which I have itali-cized. This passage appears to be a quotation from an Indian caseJawala Ram 1, of which I have been unable to obtain a copy. Butwith the greatest respect I cannot agree that the passage stressed seta
1 (1895) Punjab Reports
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WINDHAM -T.—Attorney-General v. AnthonipiUai
out correctly the law on the point. To begin with, the passage italicizedis not consistent with the words appearing earlier in the same quotation
namely the words “ must either appear on its face to be one
which, if true, would possess some legal validity For a false documentmay well be, as the permit P2 in the present case is, such that, if it were■true, it would not be legally capable of effecting a fraud, and yet mightat the same time appear on its face to be a document possessing some legalvalidity. The passage is thus self-contradictory and cannot be relied on.
The correct statement of the law on the point, in my view, is thatlaid down in another Indian case, llamasami Iyer v. Emperor 1 where ininterpreting section 464 of the Indian Penal Code, reproduced as section453 of the Ceylon Penal Code, the court pointed out that “ there isnothing in the section which requires that the document so altered shallbe legally effective and valid in order that an alteration should, in thecircumstances set out, constitute the offence of making a false document”,and accordingly rejected counsel’s argument that the alteration ofthe document in that case, by reason of the fact that the documentwhen altered was incomplete and legally ineffective, could not amountto making a false document.
To put the matter briefly, all that was necessary to make the permitP2 a forged document was that, when the 2nd accused inserted in it thewords “ eighty cwt. ” he should have done so dishonestly or fraudulently,as required by section 453. Gour, in his Penal Law of India, 5th editionat page 1576 puts the matter thus :—“ Though section 464 defines a* false document ’ as something distinct from * forgery ’ as defined insection 463, it is clear that the simple making of a false document as definedin section 464 amounts to forgery as defined in section 463”. Sections463 and 464 in the Indian Penal Code correspond respectively to sections452 and 453 in the Ceylon Penal Code. In the present case the prosecu-tion evidence was sufficient to establish that the 2nd accused, when heinserted the words “ eighty cwt.” in the permit which Muttuthamby hadsigned, without the latter’s authority, did so dishonestly or fraudulently.Clearly, on the evidence adduced, he intended the permit to be acceptedby the customs officials at Elephant Pass and elsewhere as a legallyeffective permit for the transport of 80 cwt. of onions, as in fact they didaccept it. That alone was sufficient to make the permit a forged docu-ment. It would indeed appear exceedingly unlikely that either the 2ndaccused or even Muttuthamby himself knew that Muttuthamby was infact not legally authorized to issue the permit ; but in any case that fact,for the reasons I have given, was legally irrelevant to the question whetherP2 was a forged document. I accordingly hold that the learned DistrictJudge erred in acquitting the 1st and 2nd accused on counts 1, 2 and 3on the ground that the permit P2 was not a forged document.
One further point remains to be considered. In dealing with the chargeagainst the 1st accused in count 2 (and his observations would seem toapply also to the charge of conspiracy in count 1) the learned DistrictJudge, after dismissing those charges on the point of law which I havejust considered, proceeded to state that the evidence against the 1staccused was insufficient to show that he used the permit P2 “ knowing
1 A.I.R. (1918) Madras, ISO
Solicitor-General v. Axadiel
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the same to be a forged, document ”, since there was nothing to show that-the 1st accused might not have honestly believed that, after the interviewof both accused with Muttuthamby, the 2nd accused had obtainedpermission to transport a larger quantity of onions, namely 80 cwt.,and that the figure “ 80 cwt.” had thus been inserted honestly. It isaccordingly urged that this amounted to an acquittal of the 1st accused onthe facts, which should not be reversed on appeal. This contentionmight have been acceded to but for the fact that the learned DistrictJudge does not appear to have directed his attention to the wordingof section 469 of the Penal Code, under which these accused were charged,and to the wording of count 2 itself, which follows that of the section.That section provides that “ Whoever fraudulently or dishonestly usesas genuine any document which he knows or has reason to believe to bea forged document ” shall be punished as if he had forged it. Thelearned District Judge merely finds that there was insufficient proofthat the 1st accused knew the permit to be forged, without going on toconsider whether the evidence was sufficient to show that he had reasonto believe it to be forged, which requires a lesser degree of proof thanactual knowledge. I cannot therefore hold that the learned DistrictJudge acquitted the 1st accused, on the evidence, of the offence withwhich he was charged. And the circumstances disclosed by the evidenceitself, in particular the silent acquiescence of the 1st accused when the2nd accused falsely described the applicant Saravanamuttu to Muttu-thamby, indicating a guilty mind at the outset on the part of the 1staccused, might well have been considered by the trial judge, if not asproof of his knowledge that the subsequent insertion of the figure “ 80cwt. ” by the 2nd accused was fraudulent, at least as showing that he-had “ reason to believe ” that it was fraudulent, which expression isdefined in section 24 of the Penal Code as “ having sufficient cause ” tobelieve it.
In all the circumstances I think that justice would be better served byremitting this case for re-trial on counts 1, 2 and 3, rather than byremitting it for completion. The appeal is accordingly allowed in respectof those counts, and the case remitted for re-trial thereon before a different-District Judge.
Kagaungam J.—I agree.
Sent for re-trial.