THE KING v. KANJAMANADAN

015-NLR-NLR-V-07-THE-KING-v.-KANJAMANADAN.pdf


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,903THE KING v. KANJAMANADAN.
August 10, forgery—Indictment—Four counts of forgery at same time and place—Criminal11,28.Procedure Code, ss. 179 and 180 (1)—Offences charged not shown to be-
parts of same transaction—Misjoinder of charges—False entry of clerk inbook kept by himself—Absence of evidence that entry was false—PenalCode, s. 458—" By the authority of a person ”—Power of Supreme Courtto amendindictmentafter verdictandto alter conviction—Criminal
Procedure Code, ss. 171,172, 366.
Where anindictmentallegedmorethan three offences, bnt did not
show on the face ofit thattheyallformed one single continuous
transaction,—
, Held that it was not open to the prosecution to prove that they were all.committed in one and the same transaction.
Where an indictment alleged forgery, but did not allege that the falsedocument was made with the intention of making it to be believed thatit was made by, or by the authority of, another,—
Held, that such indictment was bad.
Where upon a charge of forgery the evidence led disclosed that theentries werefalse, butdid notshowanyintention on the part of the
prisoner that the entries should pass as the act of any other person thanhimself,—
Held, that the offence of forgery was not committed.
Layard, C.J.—Section 453, clause 1, qf the Penal Code, so far as itrelates to a document executed by the authority of a person other thanthe person who wrote it; refers to a document made by one person as bythe authority and according to (the direction of another, and .intended top^iss afc the act <of the other; not to a document purporting merely to bemade by one bran by thee order or authority of another for the use ofthat other.,
MiddlbtoN, J.—I)rgery involves the representation that the thingwritten is the handiwork of some one other than the actual writer, or thatit purports to be written as tbe act of another and so by bis authority.It must appear on 'the face of it that it is intended to pass as the act ofanother person.»■
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Where a person who has authority to make entries-’* in the account 1903.books of another person, subject to a certain procedure, makes an August 7,19,unwarranted entry in his books, he does not intend it to be believed that 11, an& 28.it was an entry made by any other person than himself, or as representingon the face of it as an authority given by any other person.
Where a jury has convicted on counts of an indictment which disclosedno offence according to law, the Supreme Court has no power to amendthe indictment after verdict, nor, on a case reserved under the provisionsof section 855 of the Criminal Procedure Code, to dissect the verdict ofthe jury and appropriate the finding of guilty to the amended counts.
A
T the third criminal sessions, 1903, of the Supreme Courtholden for the Western Circuit in Colombo the Commis-
sioner of Assize, Mr. T. E. de Sampayo, reserved the following casefor the consideration of a Full Bench of the Supreme Court:—
“ On the 27th July, 1903, Andrew Benedict Kanjamanadan wasindicted before me and a special jury on the following charges: —
“ (1) That he did, on or about the 24th day of June, 1902, atColombo, commit forgery, intending that the document so forgedshould be used for the purpose of cheating, to wit, by dishonestlyand fraudulently making a false entry of Rs. 317.16 in the creditcolumn of the current account of N, A. Abram Saibo & .Co. in theNo. 1 current account ledger of the National Bank of India,
Limited, Colombo branch, and thereby committed an offence-punishable under section 457 of the Ceylon Penal Code.
“ (2) That he did, further, at the time and place aforesaid, commitforgery, intending that the document so forged should be used forthe purpose of cheating, to wit, by dishonestly and fraudulentlymaking a false entry of Rs. 1,682.84 in the credit column of the-current account of P. Adam Saibo & Co. in the No. 1 currentaccount ledger of the National Bank of India, Limited, Colombobranch, and thereby committed an Offence punishable undersection 457 of the Ceylon Penal Code.
“ (3) That he did, further, at the time and place aforesaid, commitforgery, intending that the documents so forged should be used forthe purpose of cheating, to wit, by dishonestly and fraudulentlymaking in the current account balance book of the said bank the-false entry of Rs. 5,512.08 i® place of Rs. 15,512.08, the correctcredit balance of the Troup estate account, and the false entryof Rs. 1,448.63 in place of. Rs. 11,448.63, the correct credit balanceof R. L. M. Brown’s account, and did thereby ccynmit an* offepcepunishable under section 457 of the Ceylon Penal Code?
‘‘ (4) That he did, at the time and place'aforesaid, fraudulently *and dishonestly use as genuine the aforesaid* forged documents,well knowing or having rpason to believe at the time he did so*that the said documents were forged, and thereby committed an;offence punishable under section 459 of the Ceylpn Penal Code.
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1903.“ On the indictment being read to the prisoner, Mr. Dornhorst,
August 7,10, K.C., who appeared for him, took the preliminary objection that11 and 28. the indictment was bad, on the ground—
“ (1) That it contained four charges, whereas under the CriminalProcedure Code, Section 179, no more than .three charges are to bejoined in the same indictment.
“ (2) That the indictment disclosed no offence, inasmuch as theprisoner, being charged with making false entries in the books keptby himself, could not be said to have committed forgery in respect ofthose entries, the essence of the ofience being the making or signingof a document purporting to be made or signed by another person.
“ Mr. Van Langenberg, who appeared for the Crown, explained tome that all the acts of forgery were connected together, and wereparts of the same transaction, and were done with the intention ofcommitting one and the same fraud, and justified the indictmentunder section 180 (1) of the Code.
“ I therefore over-ruled Mr. Dornhorst’s first objection.
“ With regard to the second objection, I over-ruled that also, as Iwas of opinion (1) that the question was a matter of evidence; and(2) that the account books in question, though kept by the prisoner,were the books of the bank; and if the prisoner made false entriestherein with the intention of causing it to- be believed that theentries were made by the authority of the bank when they werenot so made, this fact would satisfy the. requirements of thedefinition in section 453, paragraph 1, of the Ceylon Penal Code.
“ The case then proceeded to trial, and the following facts wereproved: —
“ The prisoner, as clerk of the bank, kept (a) the No. 1 currentaccount ledger and (6) the current account balance book, inwhich it.was the duty of the prisoner, twice a month, to enter thebalance of the. accounts of customers whose names appear in theNo. 1 current account ledger. Among the names appearing in theNo. 1 current account ledger were those of N. A. Abram Saibo &Co., P. Adam Saibo & Co., B>. L. M. Brown, and the Troup estatereferred to in the various charges of the indictment. Under date24th June, 1902, the prisoner made in the credit column-of N. A. <Abram Saibo & Co.’s account in the No. 1 current account ledgerthe entry “ by cheque Bs. 3*17.16,’ and similarly in P. – Adam Saibo&'‘Co.’s accoup.£ the entry ‘ by cheque Rs. 1,682.84.’ These are thek false entries alleged in the first two counts of the indictment.
“ When a cheqvfe is sent in to credit, it goes through the followingprocess, according to the usual course of business at the bank:—
“ The cheque goes to the assistant accountant, who marks it with.the bank’s stamp and sends it to one or other of three clerks;
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the clerk then registers it in a special book and makes out a credit 1908*slip containing particulars of the cheque; the cheque and creditslip go back to the assistant accountant, who sends on the credit ’ —slip (in the case of current account No. 1 ledger) to the prisoner,whose duty it is to enter from the credit slip the necessary creditin the account of the particular customer; the credit slip thenpasses on to another clerk, who also makes therefrom an entry ina book called the Current Account Register; the cheque and the-credit slip are then filed in the office. It was proved that no such1cheques as those entered in the prisoner’s book or any credit slipsrelating thereto were in the office; that no such cheques wereentered in any of the other books referred to; and that no such-cheques or credit slips passed through the office according to theusual course of business. The only authority to the prisoner fromthe bank to enter in the No. 1 current account ledger any creditsin the account of any customer was the credit slips which he wouldreceive in the course of business above referred to. The prisonerhad dealings with the said N. A. Abram. Saibo & Co. and P. AdamSaibo & Co. in the way of paying in cheques (which these firmspassed through their accounts in the National Bank of India) anddrawing out moneys from time to time. On the 25th June, 1902,he so paid in to N. A. Abram Saibo & Co. a cheque for Rs. 317.16and to P. Adam Saibo & Co. a cheque for Rs. 1,682.84. The repre-sentatives of these firms, who were called for the prosecution,deposed that these cheques were sent to the bank to their crediton the 25th June, 1902, but as to how and by whose hand theywere sent there was no proof. The suggestion for the prosecutionwas that they were either taken to the bank by the prisoner him-self or were intercepted by him and were thus prevented frombeing passed through the usual process at the bank. On . the 25thJune, 1902, these two firms drew upon the bank certain cheques,which were honoured, and for which they would not have hadfunds in the bank but for the credits given to them in the No. 1current account ledger for Rs. 317.16 and Rs. 1,682.84 respectively,under date 24th June, 1902. The prisoner’s accounts with thesefirms contain payments out to him or on his account on the basisof his being entitled as regards them to credit for the amount ofthe two cheques.»
» a ?
, »
“ With regard to the third charge in the indictment, the proof was ,that under date 24th June, 1902, the prisoner hod, in taking outthe balances from No. 1 current account' ledger into the currentaccount balance book, entered L. L. M. Brown’s credit balanceas Rs. 1,448.63 instead o£ Rs. 11,448.63, ‘and the Troup estate creditbalance as Rs. 5,512.08 instead of Rs. 15,512.08, the true balances
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1903. as appearing in the No. 1 current account ledger being the higherAugust 7,10. figures just mentioned, and the discrepancy thus being Rs. 2Q,000.
11, and 28■ qq examination of the books it was found that there had beensimilar discrepancies to the extent of Rs. 18,000, alterations beingmade in the balances at one time of some customers and at anothertime of other customers. On the 24th June, 1902, the discrepancywas increased by Rs. 2,000, being the aggregate of the two chequesin question, and the case of the prosecution was that this discre-pancy represented the total of the false credits from time to timeentered by the prisoner in the No. 1 current account ledger, and •that the alteration in the balances of R. L. M. Brown an,. theTroup estate on the 24th June, 1902, was made with the view ofcovering the false credits entered under the same date in the 'accounts of N. A. Abram Saibo & Co. and P. Adam Saibo & Co. inthe No. 1 current account ledger, and of preventing the fraud beingdiscovered when the current account balance book should becompared with the general ledger of the bank.
“ The fourth charge related to the checking of the No. 1 currentaccount ledger with, the current account balance book. Thesystem of checking then prevailing was for an’ European assistantaccountant to call off the names of the customers from the No. 1current account ledger and for the prisoner to call oS the balancesfrom the current account balance book, and in this manner thesetwo books were checked on the morning of the 25th June, 1902,before the business- of the day commenced; but the accused, inreading from the current account balance book the balances tothe credit of the customers at the end of the previous day did notread correctly the credit balances of ‘ R. L. M. Brown ’ and ‘ TheTroup estate,’ as therein appearing, but called oil figures corres-ponding to the balances as appearing in the No. 1 current accountledger to the credit of those two accounts. The conduct of theprisoner in not calling off the actual figures in the current accountbalance book rendered the checking nugatory and prevented thediscovery of the discrepancy, which if then discovered would 'intime have led to .the detection of the false credits given, to N. A.Abram Saibo & Co. ana P. Adam Saibo & Co. in the No. 1current account ledger.
* Mr! Dornhprst, in addressing the jury on behalf of the prisoner,t did not contest the fatcts proved by the prosecution, but*, assuming” +he facts, contended in reference to the first two cL_.
C
“ (l'i That as the indictmf it gave particulars as to the manner inwhich she forgery was com. itted, viz., by maku. g false entries inthe let ger, the case* failed unless the particulars as stated were• and
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“ (2) That the evidence showed that the entries were not false 1003.but true, inasmuch as N. A. Abram Saibo & Oo. and P. Adam Saibo
& Co. had sent the cheques in question to the bank and were ’
entitled to the credits entered in the ledger, though the prisonermight have broken the rules of the bank as to the course of thebusiness in entering the cheques in the way he did.
“ I told the jury that, even if there was an error in the indict-ment in the description of the manner in which the forgeryWas committed, they might convict on the indictment if theyfound that the prisoner had no authority from thq bank to makethe entries, and that he made them with the intention of causingit to be believed that they were made by the authority of thebank; and further, that the falseness of the entries should bejudged, not from the point of view of the bank itself, that N. A.
Abram Saibo & Co. and P. Adam Saibo & Co. were not entitledto be credited with the amount 'of the cheques sent in by thembefore the cheques were scrutinized and passed in the usualcourse of business or were properly realized in the case of chequespayable by other banks, and that, if the prisoner made the creditentries in question without credit slips coming to him after thecheques had gone through the usual process, the entries would befalse entries and the particulars in the indictment would be proved.
“ The jury found the prisoner guilty on all the counts of theindictment.
" Mr. Dornhorst then moved in arrest of judgment on thefollowing grounds: —
“ (1) That the indictment did not disclose the offence of forgeryas defined in the Ceylon Penal Code, for the reasons alreadysubmitted by him at the outset of the case, viz., that the falsedocument must be a document purporting to be signed or madeby a person other than the person charged, and that a clerk inmaking false entries in a book kept by himself cannot be saidto make a false document.
“ (2) That the evidence adduced in the case did 'not support acharge of forgery as defined'Mn the Ceylon Penal Code, for thesame reason as that stated above under ground No. 1.
“ (3) That, even assuming that a falSe entry by clerk in^a bookkept by himself could constitute forgery, the evidence provedthat the entries in question were true entries,, as already contendedby him before the jury.
“ (4) That there was a misjoinder of charges in the indictment incontravention of section ,179 of the Criminal Procedure Code, asargued by him at the outset in his objections to the indictment,and that being so, the trial was illegalconviction bad.
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1903.
Augtiat 7,10,11, and SO.
“ (5) That my directions to the jury to the effect that they mightconvict even if the actual manner in which the forgery was com-mitted was different from the particulars given in the indictment,and that they might so convict if they found that the prisonermade the entries without authority, intending it to be believedthat he had such authority, were misdirections.
“ I sentenced the prisoner to rigorous imprisonment for a termof three years on each of the charges, and I reserved and herebyrefer the above questions of law for the decision of the SupremeCourt, under the provisions of section 355, sub-section (1),. of theCriminal Procedure Code.”
The ease was argued before Layard, C.J., Wendt, J., andMiddleton, J., on the 7th, 10th, and 11th August, 1903.
Domhorst, K.G. (with him H. Jayawardene), for the accused.—The indictment discloses no offence, because making a falseentry in one’s own book is not a forgery under the definition of. itin the Penal Code, section 457. In a simple case of theft or the likeonly theft need be mentioned, but in a complex charge, like that offorgery or cheating, the mode of forgery or cheating should bespecified, and then no other mode can be proved. The chargeagainst the prisoner is an aggavated form of forgery. Mayneexplains that when the intention is to use the forgery for thepurpose of cheating there must be proof first of the forgery and'then its fraudulent use. The indictment is bad because it doesnot specify the intent, which is an essential ingredient in thecharge. It has been held that a false entry is forgery if made in abook kept by someone else. (Starling, p. 576.) In India a specialenactment, Act No. 3 of 1895, founded on 38 and -39 Viet., chap. 24,specially makes it an offence to make false entries in books kept byoneself. Queen-Empress v. Kunji Nay ah (7. L. R. 12. Madras,114). In this case the book was the accused’s own, but kept bythe complainant. Thambyah’s Ceylon Law Review, p. 91, andRe Jaggan Lall (7 Calcutta, 355). A man cannot forge unless hemakes' a signature (3 N. L. R. 330). ( The Judge directed the juryto convict the prisoner on the indictment as it stood,' if theyfound that the accused had purported! to act with authority, whilehe f reajly had ( no- authority. The- indictment contains eightcharges, and iscso mixed <up that the Judge would not even amend'it (5 Allahabad, 221). It has not been proved here that—ybody was defrfiuded. The indictment averred xorgerv in aparticular way. The Commissioner of Assize ('irected the jurythat they might convict on a forgery perpetrated in tome otherway. le was in error there. A verdict ‘of guiby on the indict-ment £s it stands, but on facts not specif d in <he indictment,
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is illegal. The Commissioner committed the fault of misdirection IMS.[Layanft C.J.—How many parties are necessary for a forgery7]
There must be somebody whose handwriting is imitated in order —to lead someone else to believe that somebody made it. Amust forge an entry in B’s book usually written by B in orderto make C believe that B did it and not A. There must be threeparties to a forgery to constitute forgery. A cannot make a false .entry in his own book. [Layard, C.J.—The Indian Act requiresonly two people.] Just so. If the prisoner moved this Court fora habeas corpus writ, the Court would look into the indiotmentonly, and if the indiotment did not disclose an offence, he wouldbe entitled to a discharge, without reference to what the jury hadfound. Section 179 provides that there should be a separatecharge for every distinct offence not exceeding three. But theindictment sets out four offences under one section, and four moreoffences under another section. This is a clear misjoinder,
(7. L. R. 25, Madras, p. 61.) There appear to have been fourforgeries here, but they were not acts in a series under section180. but each was a different offence (79 Law Times Reports,
740).
Van Langenberg (with him H. J. C. Pereira), tor the Crown,addressed the Court on the facts, and contended the differentforgeries were all linked together so as to form one transaction,namely, to defraud the bank of Bs. 2,000, therefore section 180applies. [Layard, C.J.—The principal offence is defrauding, andyet the prisoner has not been charged with it, nor does it appear thatthe main object of all the forgeries was to commit one fraud.] Wehave shown the main object in the evidence led. [Layard, C.J.—
Where does it appear in the indiotment? If it is not in the indict-ment, what is your authority for omitting it?] It is submitted theoffence is forgery because the accused made a false document inthat he dishonestly and fraudulently made a document with theintention pf causing it to be believed that such document wasmade with the authority of a person, by whose authority he knewit was not made. The intent’ was to make the bank believe thatthe entries were made with the authority of the bank’s account-ant so as to pay out Saibo’s cheques, £ut he had not the authorityof the credit slip, which is his only authority to make the1* entriesin question’. The person “ made to believe ” was tte accountant.Queen-Empress v. Kunji Nay ah (12 Madras, llff) is not a case in'point. There the accused wrote something’ different from that whichhe was authorized to write. There was no question of his actingwithout authority. In Cronenberg’s Notes to the Indian PenalCode will be found a case in which a person 'who made entries in!8-
1003.
August 7,10lli ami 28.
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a ledger in his own custody was held guilty under section 464 of
• making false entries in his own book. [Middleton, J.—It must'mean that the forged entry purported to be written by someperson other than the person who really wrote it. All the entrieshere are made by himself, not by some other person.] He wroteit himself, purporting to write it himself, and also purporting tohave authority for writing it, whereas he had none. The latterpart of the forgery section makes this a forgery. Under section488 of the Indian Code, Agnew gives a case where a person<was convicted of falsifying entries in a book kept by him to•deceive his employer. [Wendt, J.—That is not so. There thebook was the cashier’s book, temporarily in the accused’s custody,and the accused made entries in it purporting that they weremade by the cashier, to deceive the employer. There were threepersons there, and that case is one of real forgery.] [Layard, C.J.—When accused made his entries he purported to say this: Theseentries are made by me in the book kept by me.] But the booksare not the accused’s books, but the bank’s, and the accusedpurported to have authority for the entry. [Layard, C.J.—He isnot charged on the indictment with making entries withoutauthority, nor is there proof that he represented the entries weremade by anyone else than himself.] Accused was not misled bywant of allegation as to authority. If the Court thinks that noforgery has been committed, it is open to it to convict ■ him ofcheating. In Caderaman’s case (6 N. L. B., p. 67) this was done.[Middleton, J.—There this Court found the . accused guilty ofa lesser offence than was charged, but here cheating and forgeryare quite distinct. One offence cannot be substituted foranother.] The Supreme Court has power under section 855 tomake such order as justice requires. The indictment may beamended and the finding of guilty appropriated to the counts ofthe amended indictment.
Domhont, K.C., in reply.
Cut. adv. unit.
28th August, 1903. Layard, C.J.—‘
The first objection taken by prisoner’s counsel is that the indict-ment contravenes the provi&ions of section 179 of the CriminalProcedure Codg, as it alleges more than three offences. On the„ face of it, it admittedly discloses more than three offendes. Coun-sel for the Crown, ohowever, relies on sub-section (1) of section 180of the Criminal Procedure Code, and argues that the offences werecommitted by the prisoner in one series of acts so connectedtogether as to form one transaction, and ‘that consequently unddr/the provisions of that section all the offences alleged can be triad
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■on the same indictment. There isnothing in the indictment1903.
itself to show that thecharges arefounded on one single con-
tinuous transaction. Onthe contrary,the indictment alleges more—
than three offences, andI do not seehow the prosecuting counsel
can be allowed to say on presenting such an indictment to thecourt, “ The indictment, it is true, alleges more than three offences;
I am going to prove, however, they were all committed by the.prisoner in one and the same transaction ”. The Crown, where the•charge is founded on one single transaction, should first ascertainthe offence committed by such transaction and make it the firstcount in the indictment,, and then add counts -setting out theseveral other offences committed by the prisoner in that trans-action. The indictment oh the face- of it should conform to theprovisions relating to the joinder of charges contained in chapter
of the Criminal Procedure Code.
I have so far assumed that the several counts of the indictmentdo disclose that the prisoner has committed offences. If weexamine, however, more carefully the counts in the indictment, theyare lamentably deficient. A glance at the first three counts showshow carelessly they have been drawn. I will, however, pass over thatand assume that the several counts properly set out that the prisonercommitted forgery, to wit, by making certain false documents,intending that the documents so forged should be used for thepurpose of cheating some named individual, and thereby committedan offence punishable under section 457. To establish the chargeof forgery it is necessary to show that the accused has producedsomething which is a false document within the meaning of.section 453. A person can only commit forgery when he hasmade a false document within the meaning of that section. Thatsection does not enact that a person who enters a false entry in abook thereby makes a false document. What it does enact, amongother things, is that a person is said to make a false document whofraudulently or dishonestly makes a document, or part of adocument, with the intention of making it to be believed that suchdocument, or part of a document, was made by, or by theauthority of, a person by whom or by whose authority he knew itwas not made. To be ' a false document, therefore, within themeaning of that section, is something more than a more fplseentry. The document must have been made with the intention ofmaking it to be believed that it was made by, or by the authority*of, another. There is no allegation in *the counts in the indict-ment that the false dociiments mentioned were respectively madewith any such intention* In fact, the indictment does not show onthe face, of it that any forgery was committed.'
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1903.
August 1,10tM, and 28.
Layabs, C. J.
The prisoner’s counsel, however, has raised another veryimportant question as to whether, even if the indictment waagood and properly alleged a forgery, the evidence in this casedisclosed that the prisoner had been guilty of the offence offorgery. The facts proved appear to be that the prisoner’s dutywas to enter in the accounts kept by himself of certaincustomers of the bank only such credits as he was speciallyby credit slips authorized to' enter. In contravention of suchduty he made the false entries mentioned in the indictment,never having received any credit slips to support them. Theentries complained of do not profess to have been made by anyother than the prisoner himself, and the fault he has committedis that, being only authorized to make proper entries, he has madefalse ones. Each entry on the face of it purports to have been madeby himself of his own free will, and does not purport to have beenmade under the authority of any one else. No one reading thedocument alleged to be forged would assume that in making theentry he professed more than that he had made it himself in thedue course of business. In order that a document should be afalse document within the meaning of section 453 it must appearthat it was made with the intention of inducing the belief thatsuch document was made by, or by the authority of, one who didnot make it or give such authority. There is nothing on the faceof the entries complained of to make it appear that- the writingwas made under the authority of any one else than the prisoner.I understand clause 1 of section 453, so far as it relates to adocument executed by the authority of a person other than theperson who wrote it, to refer to a document made by-one person asby the authority, and according to the direction, of another, andintended to pass as the act of the other, not to a documentpurporting merely to be made by one man by the order orauthority of another for the use of that other.
The evidence here discloses that the entries were false, but doesnot show any intention on the part of the prisoner that the entriesshould pass as the act of any otherf person than himself. I can-not hold, therefore, that the entries are documents made by theprisoner with the intention denoted by clause 1 of section 453, andconsequently the prisoner has not committed, in my opinion, theoffence of forgery.
Further, no authority thas been cited to us to show that themaking of a false entry in a book kept by a person, in contraven-tion of his duty, would amount to making* a false document withinthe meaning of clause11 of section 453.
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■ft
The Indian cases to which we have been referred, on the 1903.
contrary, seem to decide that an entry made under such cireum-
stances would not amount to a forgery. In the matter of. Juggan
,, ,. UTABD.OJ.
LaU (7 Cal. L. B., p. 356), the accused made a false entry■of rent received in a book kept by him for the purpose ofinforming the collector as to the rents which had been paid, intothe collectorate. It was proved that the prisoner’s duty inkeeping such book was only to make therein such entries as hewas authorized by written warrants to do, and that he had neverreceived any such written authority to make the entry which hedid make. The Calcutta Court in appeal held that, as the entrydid not profess to be made by any other than the prisonerhimself, he had not committed the offence of forgery; con-sequently, he could not be convicted under section 466 of theIndian Penal Code. Again, in the case of Queen-Empress v.
Kunji Nayah (13 I. L. R., Madras, 115), where the prisoner,having been requested to make an entry in a ■ book of accountto the effect that he was indebted to the complainant in acertain sum of money, instead of making such entry,, enteredin a language not known to the complainant that this sum hadbeen paid to complainant, it was held that the prisoner had notcommitted the offence of forgery. The Judges pointed out thatthere was nothing on the face of the entry in the complainant’sbook to make it appear that the writing was made or authorizedby him, the entry not being signed by the complainant andcontaining no indication that he acknowledged it as his ownstatement. The entry, therefore, they say, was not made by theprisoner with the intention denoted by the 1st clause of section464 of the. Indian Penal Code (which is the same as clause 1 ofsection 453 of our Code).
I understand counsel for the Crown to argue, even if thisCourt should find, (1) that there has been a misjoinder of charges,
(2) that the indictment on the face of it discloses no offence,and (3) that the evidence does not disclose the offence offorgery, still this Court, in’ view of certain provisions of theCriminal Procedure Code, and of the section of that ■ Codeunder which this Court is now acting, can make such alterationin the conviction as justice requires and convict *the prisoner ^ofsome offende other than the one he has been charged and tried for.
First, he urges that, even if there was an eijror in stating theoffence or the particulars required by law to be- stated in thecharge, under section 171, no omission to state the offence or theseparticulars shall be regar'ded at any stage of the case as material,unless the accused was misled by such error or omission. That
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1003. simply means no such error shall be regarded as material during
August 1,10, 00urse of the trial unless the accused was misled, and con-22 flfiff Bo*
sequently section 172 provides that the Supreme Court may alter
Layasd.C.J. jn(jictment for the purpose of correcting any error or omissionat any time before verdict, but not after verdict, so as to enable thejury to bring in a verdict of guilty or not guilty of an offenceknown to the law. In the present case the jury have convicted oncounts of an indictment which, as I have said before, discloses nooffence according to our law, and we have no power to amend theindictment after verdict. •" The Commissioner in charging the juryappears to have overlooked the fact that the indictment on theface of it did not disclose the offence of forgery, for the onlyerror he mentioned to them was an error in describing the manner1of committing the forgery. The jury gave a general verdict con-victing on the indictment as presented, and it is impossible to saywhether, in view of the Commissioner’s charge, they were notleft under the impression that- in every, case a false entry madefor the purpose of cheating was a forgery.
Counsel for the Crown further argues that, even admittingthe indictment , is bad in having contravened the. provisionsof the Criminal ProcedureCode—whichprovidesthatevery
separate offence shall be charged and tried separately, exceptthat three offences of the same kind may be tried togetherin one charge if committed within the period of one year,and is not saved by theprovisions of section180,which
enacts that, if in one series of acts so connected together as toform the same transaction more offences than one are com-mitted by the same person, he may be charged with and triedat one trial for every such offence—still, under the provisions ofsection 355 of the Criminal Procedure Code, this Court on a casereserved can make such order as justicerequires,andentirely
disregard all the provisions ofthe law as tothe modeof trial to be
observed. That is to say, that we are to hold that a trial whichhas been conducted in a manner explicitly prohibited by StatuteLaw is a legal trial. We are, however', it appears to me, bound bythe ruling of the Privy Council in the case of SubrahmanianAyyar v. King-Emperor {38 I.qL. R-, Madras Series,- p. 61). Therethecappellant wa's tried and convicted on one' indictment charging(more than three offences in contravention of section 234 of the IndianCriminal Procedure, Code, from which our section 178 has beentaken. On a case reserved and heard by the Full Court of Madrasit was held by the majority of the Judges of the High Court ofMadras that the indictment was bad for 'misjoinder, but it wasopen to them to strike out one of the counts, rejecting the evidence
( 65 )
with regard to it, and to deal with the evidence as to the remainingcounts of the indictment. The High Court consequently did this
and upheld the conviction on one count only. The prisoner
appealed to the Privy Council. The Lord Chancellor, in delivering ^AYABD» 6 J.the judgment of the Privy Council setting aside the judgment ofthe Madras High Court and the conviction of the prisoner, pointedout that the indictment was bad and plainly contravened theprovision of the law which provided that a person can only betried for three offences. He showed the reasonableness of such aprovision, and added, “ The policy of such a provision is manifest,and the necessity of a system of written accusation specifyinga definite criminal offence is of the essence of criminal procedure.”
Their Lordships of the Privy Council stated that they thought thecourse followed by the High Court of Madras was plainly illegal,and that after verdict in revision the High Court cannot amendthe indictment by arranging afterwards what count might ormight not have been properly submitted to the jury* Theyfurther held that the trial having been illegally conducted, theHigh Court of Madras could not dissect the verdict of the juryafterwards and appropriate the finding of guilty only to such partof the indictment as that Court thought ought to have beensubmitted to the jury.
We are asked in this case to pursue the course followed by theMadras High Court, and to dissect the verdict of the jury, andto act in contravention of the judgment of the Privy Council, andto hold that a trial which has been conducted in a mode prohibitedby law was a legal trial, and to uphold a conviction obtained bythe Crown on an admittedly bad indictment and on one disclosingno legal offence. I cannot see my way to do so.
To sum up, in my opinion, for the reasons given in the earlypart of this judgment, the indictment was bad on the face of it.
Assuming the indictment, however, did properly allege the offenceof forgery, I think the evidence did not disclose the commissionof such an offence by the prisoner.
I would set aside the convection and quash the indictment andall subsequent proceedings thereon.
Wendt, J.—I concur.
Middleton, J.—
This was a case reserved for the copsidersftion of this Courtunder section 355 of the .Criminal Procedure Code. The prisonerwas found guilty on >three counts for forgery, intending thedocument forged should be used for the purpose of cheating,
( 66 )
1903.under section 457 of the Ceylon Penal Code, and on a fourth
August 7,10, count for fraudulently and dishonestly using as genuine the saidli, and 28. documents, lowing them to be forged, under section' 459 of the
Middleton, Ceylon Penal Code.
J. •. It appeared that the prisoner was the clerk keeping what iscalled the No. 1 current account ledger and the current accountbalance book in the National Bank of India, and it was his dutyto enter in his current account ledger such sums as appeared onslips sent to him from the accountant to the credit of the respectivecurrent accounts kept in his books, also to debit these accountswith cheques drawn against them, to write under the head ofbalance in a separate column the balance amount of debit orcredit of the current account, and also to enter these balances inthe current account balance book.
Practically the only authority for making any entry in his ledgerwas the slip initialled or signed by the accountant. The currentaccount balance book was entered up twice a month, except inJune and December, when it was checked for the half-yearlybalances.
On 24th June. 1902, the prisoner’s current account ledger andbalance book were checked, and it is alleged for the prosecutionthat after the checking the two entries mentioned in the firstsecond, and third counts were made by the prisoner either on themorning of the 25th June or on the evening of the 24th, butboth under date 24th June.
The theory of the prosecution was that the accused on thatdate intended to steal a sum of Bs. 2,000, and that, having up tothat date falsified his accounts to the extent of Bs. 18,000 by hismanipulation of the figures in the current account ledger andbalance book, he tried to cover the abstraction, but in effect leftthe apparent deficit due to the bank of Bs. 20,000.
The jury found him guilty on each count in the indictmentand he was sentenced to three years’ rigorous imprisonment oneach count to run concurrently. .
On' application by counsel for the ‘defence certain points werereserved by the learned Commissioner who tried the case for theconsideration of this Court under section 355 of the CriminalProcedure Code. c .
To my mind Cthe first and most important question is' whetherthe accused by making1 the false entries in his books committedthe offence of forgery as it is defined. under sections 452 and 453of the Penal Code.
The committing of forgery involves 'a making of falsedocuments, and the way in which a false document may be made
( 67 )
is set out under section 453 in three sub-sections, of which it isadmitted that the first is the only one which can be deemedapplicable to this case.
Now, under that sub-section a person is said to make a falsedocument who dishonestly or fraudulently makes part of adocument with the intention of causing it to be believed that suchpart of a document was made By the authority of a person bywhose authority he knows that it is not made. It is contendedhere by counsel for the prosecution that these entries were madeby the accused with the intention of causing it to be believed thatthey were made by the authority of the official of the bank whowas charged with the duty of vouching the payment slips asa warrant to the accused to make entries in his books therefrom,and it was argued that this being so the definition in this respectis complied with.
I think, however, this is not the meaning of the sub-section. Inmy opinion the theory of forgery there involves the representationthat the thing written is the handiwork of some one other thanthe actual writer, or that it purports to be written as the actof another, and so by his authority. It must appear on the face ofit that it is intended to pass as the act of another person.The examples under the sub-section seem to me to support thisconstruction.
. To my mind, where a person who has authority to make entriesin the account books of another person subject to a certainprocedure makes an unwarranted entry in his books, he does notintend it to be believed that it was an entry made by any otherperson than himself, or as representing on the face of it anauthority given by any other person, which is, I think, the meaningto be given to the words. “ by the authority of a person ” in thesub-section.
If we give the words the meaning contended for by Mr.Van Langenberg, every clerk who makes an unauthorized entry ofhis own in his employer’s books with a fraudulent intent wouldbe a former.*
Such offences must be extremely common, but counsel wasunable to put before us any reported* case, either in the Indian orour own Courts, in which false entries of this ’description hihvebeen charged in the indictment as forgeries. In our Code there is,no provision made for the punishing of person^ charged with thefalsification of accounts, nor was there in the Indian Code untilsection 477 a was enacted some few years back. This section is areproduction in slightly varied phraseology of 38 and 39 Viet,cap. 24 8. 1. It seems to me, therefore, that both the English and
1003.
August 7,10,11, and 28.
Middleton,
J.
1903.
August 7,10,11, and 28.
Middleton,
J.
( 68 )
Indian Legislatures found it necessary to provide for the specificpunishment of acts of the description charged here. If themaking of false entries by a clerk in the books of his employerwith a fraudulent intent were punishable in India or England asforgeries, it would not be necessary to legislate in the way alludedto, and there would certainly be some case to be found in which ithad been held that such acts were forgeries.
It is contended by counsel for the prosecution that the actscharged in the indictment are so connected together as to form thesame transaction, and that therefore it is permissible to chargethem in one indictment under section 180 of the CriminalProcedure Code.
When the objection was taken that more than three offences ofthe same kind were charged in the indictment no evidence hadbeen given, and there was nothing on the indictment other thanthe allegation of time and place to show that these acts were a seriesforming one transaction. It was stated, however, by counsel therewas evidence to show that together they constituted an act of mis-appropriation of the bank’s funds on a certain date, brought aboutby means of the alleged forged entries; if this were so, there wasa transaction which constituted an offence, and I think that it mighthave been charged as a specific count in the indictment. Had thisbeen done and the forgeries subsequently charged in separatecounts, it would have been apparent on the record that they wereacts in a series so connected together as to form the same trans-action, and to my mind the indictment, assuming the false entriesto be forgeries, would have been unobjectionable on this ground.
As an example, I would take the case of a riot and the series ofacts which are so connected together as to constitute it. These actsby themselves would in each case probably constitute a separateoffence, and justice would require that they all should be so charged,and there might be more than three of them. If, however, the riotwas not charged and the series of separate acts were, there would benothing to show on the indictment thflt they formed one transac-tion, and in my opinion they might be objected to if they exceededthree in-number under section 179.,
I .think, therefqre, as there is in this case some evidence on theface of the indictment to <3how this series of false entries, was nots>o connected together as to form one transaction, inasmuch as thethird count contains* an allegation of entries in a book other than'that mentioned in the first and second .counts, that this indict-ment would be prima jade objectionable under section 179. Itmight, however, have ‘been amended by the addition of the count& have before mentioned. The third and fourth counts are also
t
objectionable, inasmuch as they contain allegations—the third oftwo offences and the fourth of four offences.
* Objections have also been taken to the form of the first threecounts in the indictment on the ground that, even if the allegedmaking of false entries constituted forgery, they did not discloseoffences under section 457.
I am inclined to think, assuming the making of false entriesconstituted forgery, that the particulars given in these counts werereasonably sufficient to give the accused notice of the matterscharged against him; although I think that it was possible thattire particulars after the words “ to wit ” might perhaps have beenmore extended.
In my judgment the conviction of this man should be set asideon the ground that he has been tried on an indictment whichdiscloses no offence according to law.
I t.kink that the matter should be left to the Attorney-General todetermine upon what other charges the accused should be tried.I do not think it would be right or within our province, acting undersection 355 of the Criminal Procedure Code, to look at the evidenceand see what, if any, offence is disclosed, and thereupon to find averdict for an offence against which the accused has not had theopportunity of defending himself. From the facts disclosed uponthe argument and by the Commissioner in the case it would appearthat justice may require that the accused should be re-tried forsome offence. I would therefore leave it to the Attorney-Generalto determine what offence should be charged against him.
1903.
August 7,10,
11, and 28.
Middleton,
J.