134-NLR-NLR-V-02-THE-QUEEN-v.-KAPURALA.pdf
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1897.
April 8.
THE QUEEN v. KAPURALA.(Crown Case reserved.)
Forgery—Attesting forged signature—Abetment of forgery—Ceylon PenalCode, 88. 452 and 453.
Held by Bonser, C.J., and. Withers, J., dissentiente Lawrie, J.,'that a witness who attests a document knowing that the signatureof the maker of the document is a forgery, is not guilty of forgery.Semble, he may be guilty of abetment of forgery.
r ('HE case reserved by Withers, J., for the consideration andopinion of the Full Court, was as follows :—
“ The accused Punchirala Vederalage Kapurala, of Kelegam-“ tulana in the Eppawala korale of the Province of Anuradhapura,
“ was convicted before me of forgery.
“ The documents alleged to be forged are two duplicate cattle“ vouchers, Nos. 36 and 38. The former document purports to“ record the- sale of a buffalo by one Bairalage Punchirala, of“ Tamuttegama in the place aforesaid, to one Simeon Perera, of“ Welitara in Alutkuru korale, on the 4th day of September, 1895,“ at a village called Tamuttegama, in the Province of Anuradha-“ pura. The latter document purports to record the sale of a“ buffalo by one Mudianselage Ukkurala, of Dematawewa in the“ said Kelegamtulana, to one Simeon Perera, of Welitara aforesaid,“ on the same day at the same place.
“ At the alleged date of the alleged offence, viz., the 4th“ September, 1895, the accused was an arachchi, and the said“ village of Tamuttegama was then in his jurisdiction. It was“ the duty of the accused, as such arachchi, to attest the sales of“ cattle by people resident in his jurisdiction. It was his duty to“ prepare lists of cattle owned by residents in his jurisdiction.
“ He had prepared such a list for the year 1895, which contained“ a description of two buffaloes answering to the description of the“ animals in the impeached documents, as belonging respectively“to people bearing the names of the respective vendors in the two“ documents. It was proved that the particulars under the various“ heads in both documents were in the hand-writing of the accused.“ It was further proved that the attestation in both documents was“ in his handwriting.
“ Beyond these facts, and the fact that he had those documents•“ in his possession and custody, and that when called upon to do“ so he handed them in one day'in October, 1895, to the Govem-“ ment Agent or his Assistant, it was not proved that the prisoner“ had signed the name of the vendor in either document, or put
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“the mark of the vendee named in them. Nor beyond these“ facts was it proved that he had done any act against the 2nd“ and 3rd sub-sections of section 453 of the Penal Code.
“ One Bairalage Punchirala, of the village of Tamuttegama afore-“ said, was called to prove that he was the only person of that“ name in that village, and he deposed that the name of Punohirala“ as vendor in duplicate cattle voucher No. 36, was not signed by“ him. or by.his authority.
“ One Mudianselage Ukkurala, of Dematawewa aforesaid, was“ called to prove that he was the only person of that name in that“ village, and he deposed that the name of Ukkurala,'as vendor in“ duplicate cattle voucher No. 38, was not signed by him or by his“ authority.
“ I put to the jury at the close of my charge several questions“ and directions.
“ It must be taken that the jury found that the prisoner“ dishonestly and fraudulently attested the two impeached“ documents, intending it to be believed that the documents were“ signed by or by the authority of the vendors respectively named“ in them, by whom or whose authority he knew that the documents“ were not so signed.
“ This being so, was the prisoner guilty of the offence of forging“ those documents ?
“ If not, he must be adjudicated not guilty and acquitted.
“ If he was, the verdict will stand. The documents with their .“ translations are appended.
“ From the first, the accused asserted that the duplicates were“ genuine, but he called no evidence, and did not give evidence at“ the trial on his own behalf.”
Domhorst, for' the prisoner. There is no evidence of makinga document or part of a document as required by section 452 ofthe Penal Code. Attestation is not making. Garth, C.J., in reRiaset Ali (7 L. R. 7 Cal. 352), defines the scope of the word“ making ” in the definition of forgery, and attesting is clearlyexcluded. Guilty attestation may perhaps make prisoner liablefor abetment of forgery. Mere attestation is not “ signing, sealing,or executing,” which .imply acts of . parties to the document.[Per Curiam.—Is a notary attesting a notarial document guiltyof forgery ?] He is not. [Per Curiam.—If accused was presentaiding and abetting, he would be liable as principal.] But thereis no eyidence of that.
Bamanaihan, S.-G., for the Gtown. The attestation in thiscase is required by law, and such attestation is a material andnecessary part of the document, without which it would be
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April 8.
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1897.incomplete and worthless, so that even if he did not make a
April 8.document he has made part of a document. Did vendor or vendee
by signing make the. document ? No; it was incomplete, andtill signed by the accused and his signature made it complete,so that he executed the document.
Dornhorst, in reply. It would be a contradiction in terms tosay that a witness executed a document. “ Executing,” saysWharton, “ is signing, sealing, and delivering in the presence of“ witnesses, so that a witness is not a person executing.” A personmay be guilty of the forgery of even an incomplete and worthlessdocument, provided other conditions and the elements of forgeryare present.
Cur. adv. vult.
On 8th April the following judgments were delivered :—
Bokser, C.J.—
The question in this case may be strictly stated thus :—Is awitness who attests a document, knowing that the signature ofthe maker of the document is a forgery, guilty of forgery ? Itwas argued by the Solicitor-General that he is; he fraudulentlysigns the document with the intention of causing it to be believedthat such document was signed by a person whom he knew didnot sign it. But a fallacy seems to me to lurk in this use of theword “ sign.” The attesting witness does not sign the documentin the same sense as the maker of the document does—indeed, hecannot, strictly speaking, be said to sign it at all. What he doesis to sign a part of the document, viz., the attestation clause. . Inmy opinion the word “ sign,” when it occurs in the first clause ofsection 453 of the Penal Code, refers to one and the same act ofsigning. In other words, the intent must be to cause it to bebelieved that the signature which was really affixed by the accusedwas affixed by or with the authority of some other person. Thatseems to have been the view of the meaning of this clause, whichwas taken by Garth, C.J. of Calcutta, in Empress v. Riaset Ali(7 Cal. 352). It may be that in the present case the prisonerwas guilty of some other offence in doing what he did, e.g., abet-ment of forgery, but I am of opinion that he was not on the factsstated guilty of forgery, and the question/must be answered inthe negative.
Lawbxe, J.—
In a case tried before my brother Withers at the Kandy sessions,the jury .found that the prisoner “ dishonestly or fraudulently“ attested two documents intending” it -to be believed that these
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“documents were signed by, or by the authority of, the vendors
“respectively named in them, by whom or by whose authority^pri***
“he knew that the documents were not signed.” My brother Lawbtb,J.
referred to the Full Court the question of law—whether, this
being so, the prisoner was guilty of the offence of forging these
documents ? The essence of forgery is the use in a writing of
another’s name; such use as to cause it to be believed that the
other signed a document which he did not sign. It seems to me
'that this fraudulent use of another’s name may be made in many
ways, notably in two ways : first, by writing the other person’s
name with the intention of causing it to be believed that that
other person wrote it; and secodnly, by writing his own name as
attesting or certifying that the other signature is genuine. It is
here urged that our Penal Code, in defining and dealing with
forgery or making of false documents, omits to notice or to punish
those who dishonestly and fraudulently with their own names
falsely attest to a signature which is not signed, and which is
known by them not to be the signature it pretends to be. I
understand that by the common law of England several persons
who by signing take a part in making a false document are all
guilty of forgery. That is, if I in England were to write my name
as witness to a signature purporting to be that of the Chief Justice,
when I knew that the writer of that signature was not the Chief
Justice, I would be guilty of making part of a false document,
and punishable for forgery. It is contended that that is not the
law of Ceylon : that by the Penal Code the only way of committing
forgery is by writing a name with the intention of causing it to
be believed that that very signature was written by or by the
authority of a person by whom it was not written. Now, in the
case before us, it is plain that the only signature written by the
prisoner was his own, and that he did not intend it to be believed
that that signature was written by any one else. What he did
intend to cause to be believed was that a signature appearing on
another part of the document was written by a person .who in
fact did not write it. It is in my opinion that this later case is
dealt with by the 453rd section: “ A person is said to make a
“ £alse document who dishonestly or fraudulently signs a document
“ with the intention of causing it to be believed that the document
“ was signed by a person by whom he knows it was not signed,”
seems to me'to include the case where there are two signatures,
the one, false the other genuine, but written with the fraudulent
intent to cause it to be believed th&t the false signature is genuine.
In my opinion the words of section 453 are wide enough to treatthis’case, that the construction put on this section by the Solicitor-27-
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1897.
Aprils.
Lawbzb, J.
General is reasonable. I am aware that Sir Richard Garth; ChiefJustice of Bengal, in a case reported in 7 Cal. Rep. p. 335, read thecorresponding section of the Indian Penal Code differently. Hesaid : “ What constitutes a false document is not the writing of any“ number of words that are in themselves innocent, but the affixing“ the seal or signature of some person to the document knowing“ that seal or signature is not his, and that he gave no authority to“ sign it.” This, however, was obiter dictum, not essential to thedecision of the case before him; but that still more the opinion ofHie rest of this Court, that the 453rd section does include the. offencecommitted by the prisoner, necessarily makes me distrustful of thesoundness of the opinion I have formed on repeated considerationof the section. I am of opinion that by our law there expressedthe person who attested by his own signature, another signaturenot written by himself, but which he knew was not written bythe man whose signature it purports to be, is guilty .of making afalse document and liable to punishment for forgery.
Withers, J.—
The accused has been convicted of forging a document, andthe question is, Do the facts found support the verdict ? Whatis the law applicable ? The document impeached is known as. a duplicate cattle voucher. It is intended by law at once torecord and to vouch the disposal of a head of cattle in themanner expressed on the face of it. On one side of the documentis a column containing the required particulars of the transactionto be recorded and attested therein. On the same side are spacesfor the signature or mark of the vendor and purchaser and twowitnesses. On the other side is a space for the official attestation.It is a composite document, wh'ch is only complete when theparties to the transaction, the ordinary witness and the officialattesting witness, have put their signs or marks. It was found inthis case that the signatures of the vendors of the two impeacheddocuments were forged, but it was not found that the prisoner hadforged them. It was found that he filled in and signed that part ofthe document which it was his duty to fill in and sign, and that hedishonestly filled in and signed it with the intention of having itbelieved that the vendor's signature was genuine when he knewthat it was not. What is the law ? Section 453 of the CeylonPenal Code enacts : “ A. person is said to make a false document“ who dishonestly or fraudulently makes, signs, seals, or executes“ a document or part' of a document, or makes any mark
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“ 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.” Now, the prisoner’sown signature purported to be his own and was his own,but he had no right to put it, for by putting it he was consciouslytestifying to a lie in the shape of a fictitious sale, without theauthority of the vendor named in the document. Does the 453rdsection contemplate the case of the attestation of a forgery, which isreally the case before us ? In my opinion, according to this section,forgery attaches only to what the man himself makes, signs, seals,or executes. It may be the whole of a document, or it may be apart. If the accused had been a private person having the samename as the headpian prisoner, and had put his own name intendingit to be believed that it' was the headman prisoner’s name, thatwould have been forgery under this section, but this is not imputedto him. Now I will assume that filling in the particulars by theprisoner was making part of the document. They were in hishandwriting, and he never intended to induce any one to supposethey were not in his handwriting. It is true he was not authorizedto write those particulars by the person most concerned in the matter,but I understand the Ordinance to say that the part made and the.part signed by the person charged must be a forgery, and notanother part of the same document which the person has not made'or not signed, &c. The question must be answered in the negative.
1897.
April 8.
Withkbs, J.