Govindan Nair v. State of Kerala — 1999 DIGILAW 1283 (MAD)

Judgment: The petitioner, one P.V. Govindan Nair alias P.V.G. Nair, was tried in Sessions Case No. 37 of 1965 in the Court of the Assistant Sessions Judge, Tellicherry, for the offences under sections 406, 420 and 467 of the Indian Penal Code. The learned Assistant Sessions Judge found that the petitioner was guilty of the offences under sections 406 and 467 Indian Penal Code; and acquitted the petitioner of the offence under section 420 of the Indian Penal Code, giving him the benefit of doubt. The petitioner was sentenced to undergo rigorous imprisonment for three years for each offence; and the sentences were directed to run concurrently. The petitioner filed an appeal before the Sessions Judge of Tellicherry as Criminal Appeal No. 69 of 1965. The learned Sessions Judge, while accepting the findings arrived at by the trial Court, held that the petitioner was guilty of the offence under section 420, Indian Penal Code and not under section 406, Indian Penal Code. Accordingly, he altered the finding of the trial Court and maintained the sentence under section 423(1)(b) of the Code of Criminal Procedure, as regards the charges against the petitioner under sections 406 and 420, Indian Penal Code. The conviction of he petitioner under section 467, Indian Penal Code, was upheld. Accordingly, the appeal was dismissed. The petitioner has, therefore, come before this Court in revision. The nature of the case demands that the facts should be set out at some length. There is an organisation called the Co-operative for American Relief everywhere, shortly known as ‘CARE’, working in India with its headquarters in Delhi and branches in various States. The object of this organisations to distribute gift articles furnished by the American people to the needy and poor in India. The distribution is being done in collaboration with the Regional Directors of Food Supplies in the various States. The ‘CARE’ has a branch office in Madras, of which one R. Sreenivasan, who is P.W. 2 in this case, was the Manager at all relevant times. He was formerly a stenographer in the General Hospital, Madras. The petitioner was than a representative of the Life Insurance Corporation of India in Madras. He happened to be treated in the Madras General Hospital, while P.W. 2 was working as a stenographer there. During that time, the petitioner and P.W. 2 became acquainted. He was formerly a stenographer in the General Hospital, Madras. The petitioner was than a representative of the Life Insurance Corporation of India in Madras. He happened to be treated in the Madras General Hospital, while P.W. 2 was working as a stenographer there. During that time, the petitioner and P.W. 2 became acquainted. In August, 1960, the petitioner visited the office of the ‘CARE’ in Madras and represented to P.W. 2 that he had taken up charge as Honorary Secretary of the Kerala Sarvodaya Samithi in Thiruvangad, Tellicherry, (hereinafter referred to as the Samithi), which was said to be an Organisation founded for doing social service. He made a request to P.W. 2 for arranging the supply of the gift articles from the ‘CARE’ to the Samithi, for distribution amongst the poor people of the area, which was being served by the Samithi. The ‘CARE’ distributes these articles usually through such social organisation; and before it entrusts the articles for distribution, it takes an assurance from the person to whom the articles are to be entrusted for distribution. This is taken in a set form. Exhibit P-2 dated 16th August, 1960, is the form said to have been furnished by the petitioner as Honorary Secretary of the Samithi, undertaking to distribute the articles to be entrusted to him on behalf of the Samithi as per the assurances contained therein. P.W. 2, on receipt of this form, wrote to his central office in Delhi, recommending the supply of the articles to the Samithi for distribution. Exhibit P-3, dated 8th November, 1960, is the letter written by P.W. 2 in this respect. On the basis of this recommendation, the ‘CARE’ in Delhi included the name of the Samithi amongst its list of distributors. In November, 1960, the ‘CARE’ got a consignment of milk powder at Madras; and it allotted 200 cartons out of this consignment to the Samithi. Accordingly, P.W. 2 arranged to despatch 200 cartons to the Samithi, which was done through its transporting agents; and the goods were sent by rail from Madras to Tellicherry. Exhibit P-43, dated 30th December, 1960 is the railway receipt relating to the despatch of these goods. Exhibit P-43 was sent to the petitioner by registered post; and the petitioner received the same at Tellicherry on 9th January, 1961. Exhibit P-43, dated 30th December, 1960 is the railway receipt relating to the despatch of these goods. Exhibit P-43 was sent to the petitioner by registered post; and the petitioner received the same at Tellicherry on 9th January, 1961. Exhibit P-15 is the postal receipt; and Exhibit P-16 is the postal acknowledgment receipt, which evidence that the registered article containing the railway receipt was received by the petitioner on 9th January, 1961. The petitioner took delivery of these 200 cartons of milk powder from the railway as per Exhibit P-43 on the same date. Exhibit P-57 dated 9th January, 1961, is a letter, which the petitioner sent to the ‘CARE’ at New Delhi, reporting the arrival of the above articles. The petitioner had to furnish to the ‘CARE’ a distribution plan regarding the manner of distribution of these articles, and also certificates regarding the distribution of the same. Exhibit P-63 dated 10th January, 1961, is the distribution plan, which the petitioner submitted to the ‘CARE’ regarding the distribution of the said articles. Exhibit P-61, dated 4th February, 1961, Exhibit P-62 dated 28th February, 1961 and P-59, not dated are the certificates of distribution relating to the months of January, February and March respectively of 1961, which the petitioner furnished to ‘CARE’ certifying the distribution of the said goods, in the manner stated in these certificates. In March, 1961, the ‘CARE’ got another consignment of milk powder at Madras. As per despatch instructions issued from Delhi, 200 cartons of milk powder out of this consignment were allotted to the petitioner; and the said goods were sent to the petitioner from Madras to Tellicherry through rail as before. Exhibit P-44, dated 3rd April, 1961, is the railway receipt; and it was sent to the petitioner by registered post. Exhibit P-27 and Exhibit P-28, both, dated 10th April, 1961, are the postal receipt and postal acknowledgment which evidence that the registered article containing Exhibit P-44 was delivered to the petitioner on the above date. The petitioner took delivery of these goods on 12th April, 1961. Exhibit P-58 dated 12th April, 1961, is the report, which the petitioner sent to the ‘CARE’ at New Delhi acknowledging the receipt of the goods on 12th April, 1961. Exhibit P-10 dated 7th May, 1961, is the certificate of distribution which the petitioner sent to the ‘CARE’ regarding the distribution of the goods in May, 1961. Exhibit P-58 dated 12th April, 1961, is the report, which the petitioner sent to the ‘CARE’ at New Delhi acknowledging the receipt of the goods on 12th April, 1961. Exhibit P-10 dated 7th May, 1961, is the certificate of distribution which the petitioner sent to the ‘CARE’ regarding the distribution of the goods in May, 1961. After taking delivery of these goods on 12th April, 1961, the petitioner sold 100 cartons out of them to one Mohammed Sali of Gannanore, who is P.W. 21 in this case, for a sum of Rs. 12,000 He paid Rs. 9,000 in cash, and promised to pay the balance on reaching Gannanore. The sale was effected through a common friend, P.W. 17. These 100 cartons of milk powder were taken from Tellicherry to Gannanore on the same day; and it happened to be seized by the Sales Tax Officer, P.W. 3, at the check post at Chovva, on the ground that the transport of the goods was not accompanied by the necessary documents as required by the General Sales Tax Act, 1125. P.W. 3 ordered the goods to be confiscated, and fixed a fine of Rs. 1,200 in lieu of confiscation. The petitioner was got to the check post to get the goods released on the plea that ‘CARE’ were exempt from sales tax; but this plea was not accepted by P.W. 3. The amount of fine was paid by P.W. 21; and the goods were redeemed by him and taken to Cannanore. The remaining 100 cartons of milk powder were taken by the petitioner to Calicut through a motor lorry. Exhibit P-85 is the Goods Vehicle Register relating to this lorry; and item No. 7 relates to the trip taken by this lorry on the night of 12th April, 1961, from Tellicherry to Calicut. There is an entry therein showing that 100 cartons of milk powder were sent by P.V.G. Nair, Kerala Sarvodaya Samithi, Tellicherry, to one P. Velayudhan. In the meanwhile Shri K. Kelappan, Chairman, Kerala Sarvodaya Mandal, got Information that ‘CARE’ articles were being received in the name of a bogus Samithi, and were being sold in the black market. He wrote a letter Exhibit P-1 dated 15th May, 1961, to the Director of ‘CARE’ in India, New Delhi, stating all the information that he had got in this respect. He wrote a letter Exhibit P-1 dated 15th May, 1961, to the Director of ‘CARE’ in India, New Delhi, stating all the information that he had got in this respect. P.W. 1 also sent a copy of this letter to the Superintendent of Police, Crime Branch, Trivandrum. The Director of ‘CARE’ at New Delhi took up the matter with the Crime Branch. Accordingly, the police took up the case, and started investigation. A number of witnesses were interviewed, and a number of searches were conducted, and a volume of materials and documents were also seized by the police. Among the articles thus seized, are a series of empty milk powder cartons, and an unopened full carton of milk powder both recovered from the possession of P.W. 21. The investigation also established that these cartons related to the consignment of 200 cartons of milk powder despatched from Madras to Tellicherry as per Exhibit P-44, and taken delivery of by the petitioner. After the completion of the investigation, the police filed final report against the petitioner charging him with the offences under sections 406, 420 and 467, Indian Penal Code; and he was committed to the Assistant Sessions Court, Tellicherry, for being tried for the said offences. A large number of witnesses were examined, and a large volume of documents were let in evidence in the trial Court. The evidence in the case have been fully discussed by both the Courts below; and it is unnecessary for me to refer to them in any great detail. The petitioner contended both in the trial Court and in the lower appellate Court that he knew nothing about the so-called Kerala Sarvodaya Samithi, that he never styled himself as an Honorary Secretary thereof, that he did not know P.W. 2, and that he had nothing to do with any of the transactions relating to the milk powder in question. This plea was rejected by the trial Court; and the trial Court’s finding was affirmed by the lower appellate Court. This plea was rejected by the trial Court; and the trial Court’s finding was affirmed by the lower appellate Court. There is a large volume of evidence both oral and documentary, to establish conclusively that a society by name “The Kerala Sarvodaya Samithi” did not exist at Thiruvangad in Tellicherry District or in any of the neighbouring villages, that the petitioner falsely styled himself as the Honorary Secretary of such a Samithi, assured the ‘CARE’ by Exhibit P-2 to distribute the ‘CARE’ articles as per terms and conditions contained therein, dishonestly managed P.W. 2 to recommend the Samithi to be included among the list of distributors of the ‘CARE’ actually got 400 cartons of milk powder from the ‘CARE’ and misappropriated the whole goods. The trial Court held that the evidence of P.W. 2 was unreliable, and that it appeared that P.W. 2 was an accomplice to the fraud committed by the petitioner. It took the view that, if P. W. 2 1 new that actually no organisation as the ‘Kerala Sarvodaya Samithi’ existed, and he was also a party to the fraud played on the ‘CARE’ the charge of cheating P.W. 2and dishonestly inducing him to supply the milk powder to the Samithi cannot stand against the petitioner. Accordingly, the trial Court acquitted the petitioner of offence under section 420 of the Indian Penal Code, giving him the benefit of doubt. As regards the offences under sections 406 and 467, Indian Penal Code, the trial Court found that on the facts established on the evidence, the petitioner was guilty of the said offences. The lower appellate Court, however, held that, in so far as the petitioner got possession of the property by deception, the offence of criminal breach of trust cannot stand under law, and that the offence which the petitioner had committed was one under section 420, Indian Penal Code. Accordingly, the learned Sessions Judge altered the finding to one under section 420 and maintained the sentence. As regards the conviction under section 467, Indian Penal Code, and the sentence awarded for the said offence, the lower appellate Court confirmed the same. Accordingly, the learned Sessions Judge altered the finding to one under section 420 and maintained the sentence. As regards the conviction under section 467, Indian Penal Code, and the sentence awarded for the said offence, the lower appellate Court confirmed the same. The learned Counsel for the petitioner raised four contentions before me namely, (1) The lower appellate Court’s finding that the petitioner is guilty of the offence under section 420, Indian Penal Code, is not sustainable on the facts and circumstances of the case; (2) The trial Court’s finding that the petitioner is guilty of the offence under section 406, Indian Penal Code, is wrong under law, as held by the lower appellate Court; and hence there was no question of convicting the petitioner for either of the offences under sections 406 or 420, Indian Penal Code; (3) The lower appellate Court has no jurisdiction to convict the petitioner of the offence under section 420, Indian Penal Code, as he was acquitted of the said offence by the trial Court, and the State did not file any appeal against the said acquittal; and (4) The finding that the petitioner is guilty of the offence of forgery under section 467, Indian Penal Code, cannot be sustained on the evidence in the case. In order to appreciate the above contentions, it is necessary to refer to the charges-framed against the petitioner in the trial Court. They are as follows: “Firstly, with having in or about August, 1960 falsely pretending to be the Honorary Secretary of a bogus institution which he styled as the Kerala Sarvodaya Samithi, Tellicherry, cheated the Manager, ‘CARE’ Madras and induced him to despatch by rail during the period between 18th January, 1961 and 13th April, 1961 to the address of the Secretary of the aforementioned bogus Samithi milk powder-an offence punishable under section 420 of the Indian Penal Code. Secondly, with having on or about the 9th day of January, 1961, and in the course of the same transaction forged a certain document purporting to be a receipt for delivery of movable property, to wit, Goods Invoice Receipt for delivery of milk powder by signing the same as Honorary Secretary of the Kerala. Secondly, with having on or about the 9th day of January, 1961, and in the course of the same transaction forged a certain document purporting to be a receipt for delivery of movable property, to wit, Goods Invoice Receipt for delivery of milk powder by signing the same as Honorary Secretary of the Kerala. Sarvodaya Samithi, Tellicherry and made use of the said document to take delivery of milk powder booked to the address of the aforementioned Samithi-an offence punishable under section 467 of the Indian Penal Code, and Thirdly, with having at or about the same time and place and in the course of the same transaction dishonestly used or disposed of the milk powder taken supply of by him from the ‘CARE’ Organisation by selling them for value instead of distributing the powder to the poor and needy as he was bound to do under the terms of the supply-an offence punishable under section 406 of the Indian Penal Code. To the charges read over and interpreted to him is Malayalam, the accused pleads not guilty.” I shall now consider the petitioner’s first contention. At the outset, I have to observe that the charge relating to the offence under section 420, Indian Penal Code, has been framed very carelessly. It may be seen from the facts of the case, which I have narrated above that the 400 cartons of milk powder despatched to the petitioner from Madras to Tellicherry were the property of the ‘CARE’ and not of P.W. 2, who was only the Manager of its Madras office. Exhibit 2, the assurance for the distribution of the articles was given by the petitioner in favour of the ‘CARE’. The allotment of the milk powder to the petitioner, and despatch of the goods to him as per Exhibit P-43 and P-44 were all made by the ‘CARE.‘All what P.W. 2 did in this transaction was only as an agent of the ‘CARE’ and/or incompliance with its instructions from Delhi. Under these circumstances, P.W. 2 had no property in the milk powder which the petitioner got as per Exhibits P-43 and 44; and the person who was induced to part with the property is the ‘CARE’ itself, and not P.W. 2, its Manager at Madras. Under these circumstances, P.W. 2 had no property in the milk powder which the petitioner got as per Exhibits P-43 and 44; and the person who was induced to part with the property is the ‘CARE’ itself, and not P.W. 2, its Manager at Madras. The charge for the offence under section 420, Indian Penal Code, is in this respect defective in so far as it states that the petitioner cheated P.W. 2. This charge is also defective, when it states that the petitioner induced the Manager, ‘CARE’ Madras to despatch the goods to the petitioner by rail, during the period between 8th January, 1961, and 13th April, 1961. The first consignment of 200 cartons of milk powder were despatched from Madras to the petitioner as per Exhibit P-43, dated 30th December, 1960, and they were taken delivery of by the petitioner on 9th January, 1961. The second consignment was despatched from Madras as per Exhibit P-44 on 3rd April, 1961, and taken delivery of by the petitioner on 12th April, 1961. So the date put in this charge may not take in the first consignment of 200 cartons of milk powder, despatched as per Exhibit P-43. P.W. 2 turned out to be a hostile witness at the trial and he was cross-examined by the prosecution. As the trial Court pointed out, he is a very unreliable witness; and his evidence is a net-work of falsehood. It may be that P.W. 2 is an accomplice to the fraud committed by the petitioner, or that he is perjuring to help the petitioner. This aspect of the matter has not been considered by the lower appellate Court. However, the petitioner has no case that P.W. 2 ever know that the Samithi of which the petitioner styled himself to be the Honorary Secretary never existed or that the milk powder was not intended for distribution, but for misappropriation. There is no evidence to probabilise such a theory. Though P.W. 2 denied any knowledge about the petitioner or the petitioner being the Honorary Secretary of the Samithi, the witness admits that he recommended the Samithi for being included in the list of distributors, and arranged the despatch of the milk powder as per Exhibits. P-43 and 44 on the faith that the Samithi existed, and that the goods would really be distributed among the poor and the needy as undertaken in Exhibit P-2. P-43 and 44 on the faith that the Samithi existed, and that the goods would really be distributed among the poor and the needy as undertaken in Exhibit P-2. Therefore, the conclusion is inevitable that the petitioner obtained the 400 cartons of milk powder concerned in this case from the ‘CARE’ by cheating. The lower appellate Court held that the person who was deceived in this case was the ‘CARE’ and it is on this basis that it found that the offence under section 420, Indian Penal Code was made out. Strictly speaking, such a finding may not be in accordance with the charge. But the evidence in the case, the cross-examination of the witnesses as well as the statement of the accused under section 342 of the Criminal Procedure Code show that there was no doubt at the trial regarding the real nature of the charge, and that it was in substance the petitioner cheated the ‘CARE’ through the agency of P.W. 2, its Manager, and obtained dishonestly from the ‘CARE’ 400 cartons of milk powder on the undertaking that the same would be distributed among the poor and the needy. Hence the apparent defect in the form of the charge cannot cause any prejudice to the accused. I am, therefore, of the opinion that in any view of the matter, the offence under section 420, Indian Penal Code, against the petitioner has been fully made out on the evidence in the case. The petitioner’s second contention may now be considered; and the question for determination is whether the finding of the trial Court that the petitioner is guilty of the offence under section 406, Indian Penal Code, is sustainable. The evidence in the case has established that the 400 cartons of milk powder were sent to the petitioner by the ‘CARE’ on the basis of assurances contained in Exhibit P-2 to the effect that he shall distribute the goods to the poor and needy in accordance with the terms and conditions contained in it. The evidence in the case has established that the 400 cartons of milk powder were sent to the petitioner by the ‘CARE’ on the basis of assurances contained in Exhibit P-2 to the effect that he shall distribute the goods to the poor and needy in accordance with the terms and conditions contained in it. Though the representation that there, was an organisation called “Kerala Sarvodaya Samithi,” and that the petitioner was its Honorary Secretary was both false, and that, but for this representation, the ‘CARE’ would not have entrusted any goods with the petitioner for distribution, there can be no doubt that the goods were not given to the petitioner for his own use, nor did the goods become the property of the petitioner on his taking delivery of the same. On the other hand, the goods were delivered to the petitioner on trust that the petitioner would discharge the obligations which he undertook as per Exhibit P-2. It is seen from Exhibits P-57 and P-58, which are the arrival reports of the goods, Exhibit 63, the distribution plan, and Exhibits P-59 to Exhibit P-62, which are the certificates of distribution, that the goods were entrusted with the petitioner on the faith that the petitioner would discharge the obligations under Exhibit P-2. It is also established in this case that, as regards the first consignment of the 200 cartons of milk powder, the petitioner did not make any distribution at all, and that, as regards the second consignment of 200 cartons, he sold 100 cartons out of it for sale. There can be no doubt on the above facts that the petitioner is guilty of the offence of criminal breach of trust under section 406 of the Indian Penal Code. The petitioner has got a contention that one P.R. Nair is shown as the Honorary Secretary of the Samithi in Exhibit P-2, and that there is no evidence in the case that Exhibit P-2 was handed over to P.W. 2 or in his office by the petitioner. The petitioner has got a contention that one P.R. Nair is shown as the Honorary Secretary of the Samithi in Exhibit P-2, and that there is no evidence in the case that Exhibit P-2 was handed over to P.W. 2 or in his office by the petitioner. This is true; but it is established by a large volume of evidence, both oral and documentary, that it is the petitioner who was styling himself as the Honorary Secretary of the Samithi, and receiving money orders, registered letters and all postal articles addressed to “The Honorary Secretary, Kerala Sarvodaya Samithi, Thiruvangad.” In some of them, the name “P.V.G. Nair” appears as Honorary Secretary of the Samithi. There are also letters by the petitioner in which he has himself described as the Honorary Secretary of the Samithi. In Exhibits P-43 and P-44, the two railway receipts relating to the despatch of the 400 cartons of milk powder the petitioner has signed “For Kerala Sarvodaya Samithi-Honourable Secretary.” These words are impressed on Exhibits P-43 and P-44 by a seal; and the petitioner has signed above the words “Honourable Secretary”. Exhibits P-43 and P-44 also contain a seal of the Samithi. Exhibit P-56 is the office copy of a letter dated 17th May, 1961 from the ‘CARE’ addressed to “Sri P.R. Nair, Honorary Secretary, Kerala Sarvodaya Samithi, P.O. Thiruvangad,” calling for certain informations and issuing certain directions regarding the distribution of the 400 cartons of milk powder supplied to the petitioner as per Exhibits P-43 and P-44. Apparently Exhibit P-56 was addressed in the above manner on the basis of the address given in Exhibit P-2; but the person who functioned as the self styled Honorary Secretary of the Samithi, which really never existed, is the petitioner himself. It is also abundantly clear from the evidence in this case that the recommendation by P.W. 2 to supply the ‘CARE’ articles to the Samithi for the distribution and the actual supply of the 400 cartons of milk powder to the Samithi by the ‘CARE’ were done on the basis of the assurance contained in Exhibit P-2. I have, therefore no hesitation to hold that Exhibit P-2 was given at the Madras office or the ‘CARE’ by the petitioner himself or some body at his instance and on his behalf. I have, therefore no hesitation to hold that Exhibit P-2 was given at the Madras office or the ‘CARE’ by the petitioner himself or some body at his instance and on his behalf. The learned Sessions Judge held that the facts established against the petitioner do not under law constitute the offence under section 406, Indian Penal Code but they constitute the offence under section 420, Indian Penal Code. The reason stated by her is that there can be no breach of trust in respect of an article which an accused receives as a result of deception. The learned Judge has relied on the decisions in C.M. Narayan v. State of Travancore Cochin1 Arab Mihan v. Emperor2, Emperor v. John Mc Iver3, State v. Radhakanta4, and Lake v. Simmons5, in support of the above proposition. The petitioner’s learned Counsel also relied on the same decisions Before examining the above derisions it is advantageous to refer to the relevant statutory provision, and consider how far the above proposition holds good in the light of the said provision. Section 405, Indian Penal Code, defines criminal breach of trust and it reads as follows: “405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust.‘” All what is required to satisfy the definition of this section is that (i) there must be an entrustment with property or with any dominion over property in any manner (ii) a dishonest misappropriation or conversion of that property to the own use of the person with whom it was entrusted or a dishonest use or disposition of that property; and (iii) that the said misappropriation, conversion, use or disposition must be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, which he has made touching the discharge of such trust. The facts found in this case show that the petitioner was entrusted with 400 cartons of milk powder on the basis of the assurance given by him that he would distribute the same among the needy and the poor, in accordance with the terms and conditions of the said assurance as contained in Exhibit P-2 and that the petitioner misappropriated the whole goods to his own use in violation of the assurance which he had given for their distribution. This is sufficient to satisfy the definition of the offence of criminal breach of trust. It is true that ordinarily there can be no entrustment on trust with regard to a property that a person manages to get from another by deception. But it is also quite possible that the person deceived delivers the property to the other person on trust and on the basis of an undertaking by the latter that he shall hold the property for a particular purpose or use it in a particular manner. It is hardly possible to contend that, when one of the parties to a contract or to a deed of settlement or trust never intended to perform the contract or the trust, and his sole object was to deceive the other, there is under law no valid contract or trust. I shall now proceed to consider the decisions relied on by the petitioner’s learned Counsel. C.N. Narayan v. State of Travancore-Cochin1, is a decision of the Supreme Court in an appeal from a decision of the High Court of Travancore-Cochin. The appellant in that case was one of the two Receivers appointed by the Court for the management of a textile mill. Under the terms and conditions of the appointment, the Receiver was bound to sell the textile products at fixed prices. It was a time when there was a scarcity for clothes; and the appellant availed of this situation to get from the customers, to whom goods were sold, much larger amounts than what was fixed as the price of the goods. He credited in the accounts of the mill only the prices fixed for the goods; and he misappropriated the excess amounts received from the customers. He credited in the accounts of the mill only the prices fixed for the goods; and he misappropriated the excess amounts received from the customers. On the above facts, the appellant was found guilty by the High Court of the offence of criminal breach of trust under section 409 of Indian Penal Code in respect of the excess moneys, which he received from the customers and misappropriated to himself. The Supreme Court held that the offence under section 409, Indian Penal Code, would not stand against the appellants on the facts of the case, as the excess amounts were paid to him by the customers as illicit gratification, and there was no question of any entrustment of the amounts to the accused for any purpose. The Court observed as follows: “In both these letters P.W. 1 says that the appellant promised to give him 100 bales of Sitaram piece goods in return for which he was to pay the accused a secret profit of Rs. 10,000. This indicates that the money was intended to bepaid to the accused as his own personal profit and it was not an item of additional or extra price for the goods purchased, which was demanded by or paid to the accused on behalf of the mills.” It is, therefore, clear that this decision does not lend any support to the proposition contended for by the learned Counsel. In Arab Mihan v. Emperor2, the accused went to the house of a person and represented to him that he was tinner; and on the basis of that representation, the accused received from the other person certain utensils for repairs, which the accused promised to return after repairs on the very same day. But the accused absconded with the articles; and it was subsequently found that he was not a tinner at all, and that he did not do any repairs to the goods as he under took The accused was convicted for the offence under section 406 But the Court of the Judicial Commissioner of Sind set aside the conviction, and held that the charge under section 406 of the Indian Penal Code would not stand on the facts of the case, and that the offence that the petitioner had committed was one under section 420 of the Indian Penal Code. In the result the learned Judicial Commissioner altered the conviction from one under section 406 to section 420, and confirmed the sentence. I am not quite sure about the correctness of this decision. It is based on a decision of a Full Bench of the Madras High Court in Emperor v. John Mclyer1, and the rulings relied on therein. As I am proceeding to examine the above Full Bench decision, it is unnecessary to say anything more regarding the decision of the Judicial Commissioner. Emperor v. John Mclyer1, is a leading case for the proposition that there could be no entrustment with regard to a property received by deception; and this decision therefore, deserves careful consideration. The accused in this case approached the complainant and represented to him that they had entered into a contract with the Imperial Bank of India to sell and deliver to the Bank certain bonds of the value of Rs. 3,50,000 within a particular day, that they purchased the requisite bonds from Bombay, that, when they offered the bonds to the Bank, the Bank returns them owing to irregular endorsement, that they had sent the bonds to Bombay for proper endorsement, and that they expected to get the bonds back within a few days. The accused requested the complainant under the above circumstances to oblige them by giving him bonds temporarily for a few days, so as to enable them to give the bonds within the contract period to the Imperial Bank, and they assured the complainant that the complainant’s bonds would be returned to him on a certain date, before which they expected to get back their bonds from Bombay. The complainant believed these representations, and on the faith of the assurance given by the accused to return his bonds on the promised date, the complainant handed over his bonds to the accused. These representations were actually false; and the accused after getting the bonds from the complainant in the manner stated above, disposed of the bonds and misappropriated the proceeds thereof. The accused were charged of the offences under section 406 and 420, Indian Penal Code. Pending the trial, it was submitted by the complainant and the accused that the facts of the case only disclosed an offence under section 420, Indian Penal Code, and they sought permission for compounding this offence. The accused were charged of the offences under section 406 and 420, Indian Penal Code. Pending the trial, it was submitted by the complainant and the accused that the facts of the case only disclosed an offence under section 420, Indian Penal Code, and they sought permission for compounding this offence. The permission was given, and the accused were acquitted The Crown filed an appeal to the High Court, against the order of acquittal, contending that the complaint disclosed not only an offence under section 420, Indian Penal Code; but, also an offence under section 406, Indian Penal Code, which was not compoundable. The appeal was heard by a Division Bench of the Madras High Court, consisting of Madhavan Nair and Burn, JJ., and their decision is reported in Emperor v. J. Mclyer and another2. The following observations contained in the Judgment: are relevant and useful. “The rest of the argument on the above point is based upon the interpretation put by the House of Lords in Lake v. Simmons3on the word ‘entrusted’ which appeared in a clause in a certain insurance policy. In the circumstances of the case it was held that the obtaining by a person of articles by larceny by a trick cannot amount to entrustment as there was no real consent by the owner of the articles to the transferee obtaining possession of the same Read in the light of the facts of the case it will be found that that decision is not helpful in interpreting the word”entrusted“as used in section 405 of the Code. As pointed out by Lord Haldane in that very case ‘entrusted’ is not necessarily a term of law. Itmay have different implications in different contexts. In its most general significance all it imports is a handing over the possession for some purpose which may not imply the conferring of any proprietary right at all On the allegations in the complaint in this case we have no doubt that the 14 bonds in question were ‘entrusted’ by the complainant to the accused within the meaning of section 405 of the Code. This argument must also be rejected.” Accordingly the learned Judges set aside the acquittal of the accused for the offence under section 406, Indian Penal Code, and directed the Chief Presidency Magistrate who acquitted the accused, to restore the case to file and proceed according to law. This argument must also be rejected.” Accordingly the learned Judges set aside the acquittal of the accused for the offence under section 406, Indian Penal Code, and directed the Chief Presidency Magistrate who acquitted the accused, to restore the case to file and proceed according to law. The learned Magistrate committed the accused to stand their trial before the High Court Sessions. At the trial, the accused raised two preliminary points, firstly, the trial was barred by section 403, Criminal Procedure Code, as they had already been acquitted by the learned Presidency Magistrate, and secondly, the charge under section 406, Indian Penal Code, was not maintainable against the accused as there can be no legal entrustment of a property obtained by deception. The learned Chief Justice reserved these points for the consideration of a Full Bench particularly in view of the Division Bench decision of the Court in Emperor v. J. Mclyer and another1. This is how this case came before a Full Bench, which consisted of Cornish, Mockett and Lakshmana Rao, JJ. We are concerned here only with the discussions of the learned Judges on the second point. Justice Cornish, after referring to the decision in Lake v. Simmons2, stated as follows: “The word ‘entrusted’ Lord Haldane has said in Lake v. Simmons2, may have different implications in different contexts. We have here to construe that word as it occurs in a section of the Penal Code headed”of Criminal Breach of Trust.“The notion of a trust in the ordinary sense of that word is that there is a person the trustee or the entrusted in whom confidence is reposed by another who commits property to him; and this again supposes that the confidence is freely given. A person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term; and section 405 gives no sanction to regard him as a trustee. A person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term; and section 405 gives no sanction to regard him as a trustee. The illustrations to the section show that it is intended to cover the case of property honestly obtained by the person entrusted with it and subsequently dishonestly misappropriated by him in breach of his trust.” Justice Mockett, concurred with Justice Cornish, and his Lordship referring to the decision in Lake v. Simmons2, and few English authorities, concluded as follows: “It seems to me to follow that there can be no consent by a person who is cheated, and so, to adopt Lord Summer’s language, if there was deceit which prevented any true consent arising, there could be no entrusting; the tarns are mutually exclusive.” Justice Lakshmana Rao, however, dissented with the majority; and after quoting section 405, the learned Judge stated: “The terms of the section are very wide and entrustment may be brought about in any manner. It may be of mere dominion over property and the word ‘entrustment’ has not been defined anywhere. It is not a term of law and in the ordinary sense it includes a case of misplaced confidence as well as a case of well justified confidence. That there can be an entrustment obtained by false pretences, as distinguished from an obtaining by larceny, by trick or theft, is recognised under the English law, and the distinction between the two is emphasised by the Law Lords in Lake v. Simmons2, not to mention the admission of Jowitt, K.C...” Accordingly it was held by the majority that the offence under section 406 of the Indian Penal Code was not sustainable against the accused. I am prepared to agree that the decision of the majority on the facts of the case is correct; for the bonds were handed over to the accused for being made use of the same for their own purpose. Apparently there was no entrustment of the property satisfying the requirements of section 405, Indian Penal Code, and all that the accused did, in addition to the commission of the offence under section 420, Indian Penal Code, was a breach of the promise to return the bonds, after the temporary use for which, it was said, the accused required them. Apparently there was no entrustment of the property satisfying the requirements of section 405, Indian Penal Code, and all that the accused did, in addition to the commission of the offence under section 420, Indian Penal Code, was a breach of the promise to return the bonds, after the temporary use for which, it was said, the accused required them. But with great respect, I am unable to subscribe to the statement contained in the last two sentences in the passage extracted above from the judgment of Justice Cornish and agreed to by Justice Mockett. If a person, X, assumes a false or fictitious character and represents to another person, Y, that X is really the person whom he represented to be, and Y, believing the said representation, delivers property to X on the basis of an undertaking given by X to Y or an agreement entered into between them, regarding the mode in which the said property is to be held by X, or used by him, and if X, in violation of the said undertaking or agreement, misappropriates the property to his own use, the acts committed by X constitute, in my opinion, clearly an offence under section 406 of the Indian Penal Code. I am unable to understand the logic of the proposition that there can be no entrustment of a property, which a person delivers to another, as a result of cheating. In my view, criminal breach of trust and cheating are different offences; and the question whether a transaction constitutes both these offences or only one of them depends on the question whether it falls under both the definitions of the said offences in the Indian Penal Code or only under one of those definitions. I think that the correct legal position is what justice Lakshmana Rao has stated in the passage extracted above from his judgment. This decision does not, therefore, support the petitioner’s contention. Lake v. Simmons1, is a decision of the House of Lords and the question that arose for consideration therein related to the construction of a clause in an insurance policy touching the entrustment with the property to the customers of the insured. The observations contained in this Judgment cannot, therefore, be of any help in interpreting section 405 of the Indian Penal Code. The next case cited by the petitioners’ learned Counsel is State v. Radhakanta2. The observations contained in this Judgment cannot, therefore, be of any help in interpreting section 405 of the Indian Penal Code. The next case cited by the petitioners’ learned Counsel is State v. Radhakanta2. In this case, the accused was entrusted to engage labourers departmentally on muster roll, and the charge against him was that he prepared a false muster roll showing that labourers had been engaged, received money on that account and misappropriated the same. The question arose whether the petitioner was guilty of the offence under section 409, Indian Penal Code. Their Lordships, following the decision in Emperor v. John Mclyer3, held that, if the offender appropriates property which he obtained by a trick, there can be no offence of criminal breach of trust. It will be seen from the facts of this case that the petitioner did not receive the money for the purpose of engaging labourers, but he received it on the pretext that he wanted to pay it to the workers said to have been already engaged by him, but actually never engaged. It is not, therefore, a case of any entrustment; and this decision does not in any manner support the proposition canvassed by the petitioner’s learned Counsel. In the result, I come to the conclusion that conviction of the petitioner for the offence under section 406, Indian Penal Code, by the trial Court was correct. The learned Sessions Judge went wrong in thinking that, on the facts of the case, the offence under section 406 of the Indian Penal Code will not stand; and it was unnecessary for her to alter this finding to a finding of guilty under section 420, Indian Penal Code. The next contention of the petitioner’s learned Counsel is that, in view of the fact that the petitioner was acquitted of the offence under section 420 of the Indian Penal Code by the trial Court, and the State did not file any appeal from the said acquittal, the lower appellate Court has no jurisdiction, in an appeal from a conviction for another offence, to convert the order of acquittal into one of conviction. On the facts of this case, it appears to me that this contention cannot stand. The findings of the Courts below on the questions are concurrent. On the facts of this case, it appears to me that this contention cannot stand. The findings of the Courts below on the questions are concurrent. The difference between the trial Court and the lower appellate Court is only on the question as to which one of the two sections 406 and 420 of Indian Penal Code applies to the case. Looking at the matter from this angle, it cannot be said that the lower appellate Court has converted a finding of acquittal into a finding of conviction. All what has been done is to apply the correct provision of law to the facts found by the Courts below. Section 423 of the Code of Criminal Procedure deals with the powers of a Court in an appeal both from an order of acquittal and from a conviction. This section reads as follows: “423. Powers of Appellate Court in disposing of appeal-(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of an appeal under section 411-A, sub-section (2), or section 417, the accused, if he appears the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retired or committed for trial, as the case may be, or find him guilty, and pass sentence on him according to law; in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3), not so as to enhance the same; (c) in an appeal from any other order, alter or reverse such order; (d) make any amendment or any consequential or incidental order that may be just or proper. (1-A) Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything inconsistent therewith contained in clause (b) of sub-section d): Provided that the sentence shall not be so enhanced, unless the accused has had an opportunity of showing cause against such enhancement. (2) Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.” The scope and extent of the powers of an appellate Court under the above section have been considered exhaustively by the Supreme Court in State of Andhra Pradesh v. T. Narayana1. This decision has been followed by the Supreme Court in Matukdhari Singh v. Janardan Prasad2, and Lakhan Mehta v. State of Bihar3. As the law is well settled by these decisions, it is only necessary to refer to the decision in State of Andhra Pradesh v. T. Narayana1Dealing with the powers of the Court under section 423(1)(b) the Court observed as follows: “In our opinion section 423(1)(b)(1) is, therefore, clearly confined to cases of appeals preferred against orders of conviction and sentence, and the powers exercisable under it are therefore conditioned by the said consideration. It is impossible to accede to the argument that the powers conferred by this clause can be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved.” Then the Court proceeded to consider the meaning of the expression “alter the finding” and “maintaining the sentence” appearing in section 423(1)(b) and held that the expression “alter the finding” has only one meaning, and that is alter the finding of conviction and not alter the finding of acquittal. It also pointed out that the question of altering the finding and maintaining the sentence can arise only in cases where the offences fall under sections 236, 237 and 238 of the Code of Criminal Procedure. It also pointed out that the question of altering the finding and maintaining the sentence can arise only in cases where the offences fall under sections 236, 237 and 238 of the Code of Criminal Procedure. It, therefore, follows that, if the offences under section 406 and section 420 of the Indian Penal Code fall under sections 236 and 237 of the Criminal Procedure Code, it is open for the appellate Court to alter the finding of acquittal under section 420 of the Indian Penal Code and find the accused guilty of offence under section 406 of the Indian Penal Code and maintain the sentence, and vice versa. This question directly arose for decision in Sunil Kumar Paul v. The State of West Bengal.1 In that case the accused was convicted for the offence under section 409, Indian Penal Code, by the trial Court. The High Court, in an appeal against the conviction set aside the conviction but held that the accused was guilty of the offence under section 420, Indian Penal Code, and maintained the sentence. It was contended in the Supreme Court that this was beyond the power of a Court of appeal. Dealing with this contention, the Supreme Court observed as follows: “(16) When a charge under section 420, Indian Penal Code, could have been framed by the trial Court by virtue of section 236, Criminal Procedure Code, that Court or the appellate Court can, in law, convict the appellant of this offence instead of an offence under section 409, Indian Penal Code if it be of the view that the offence of cheating had been established. This would be in accordance with the provisions of section 237, Criminal Procedure Code.” The above decision relied on the decision of the Privy Council in Begu v. Emperor2, and two earlier decisions of the Supreme Court in Ramaswamy Nadar v. State of Madras3 and State of Andhra Pradesh v. Kandimalla Subbaiah4. The Petitioner’s contention is fully met by the above pronouncements, and cannot be sustained. The next contention advanced by the learned Counsel is that section 236 of the Criminal Procedure Code applies only to a case where there is a doubt about the facts, and that on the facts in this case, there was no scope for any doubt. The very same contention was raised in Sunil Kumar Paul v. State of West Bengal1and the contention was repelled. The very same contention was raised in Sunil Kumar Paul v. State of West Bengal1and the contention was repelled. Their Lordships after quoting sections 236 and 237 of the Criminal Procedure Code observed as follows: “The framing of a charge under section 236, is in the nature of things, earlier than the stage when it can be said what facts have been proved, a stage which is reached when the Court delivers its judgment. The power of the Court to frame various charges contemplated by section 236, Criminal Procedure Code, therefore arises when it cannot be said with any definiteness, either by the prosecutor or by the Court, that such and such facts would be proved. The Court had at the time of framing the charges, therefore to consider what different offences could be made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the investigating agency or by the allegations made by the various prosecution witnesses examined prior to the framing of the charge. All such possible offences could be charged in view of the provisions of section 236, Criminal Procedure Code, as it can be reasonably said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute.” I therefore come to the conclusion that the petitioner cannot in any event escape the consequences of his being found guilty of the offences under section 420 or section 406, Indian Penal Code, though in my view he is guilty of the offences under both these sections. I now come to the last point urged on behalf of the petitioner, namely, that on the facts of the case, the offence under section 467, Indian Penal Code will not stand. The evidence shows that the petitioner was styling himself as the Honorary Secretary of an organisation called the Kerala Sarvodaya Samithi, which never existed, and that he was writing as well as receiving several letters and signing several papers in that false capacity. Exhibit P-15 and P-16 are postal receipt and postal acknowledgment which he has signed as Honorary Secretary of the Kerala Sarvodaya Samithi, for getting delivery from the post office of the registered postal article, which contained Exhibit P-43, the railway receipt relating to the despatch of the first consignment of 200 cartons of milk powder. Exhibit P-15 and P-16 are postal receipt and postal acknowledgment which he has signed as Honorary Secretary of the Kerala Sarvodaya Samithi, for getting delivery from the post office of the registered postal article, which contained Exhibit P-43, the railway receipt relating to the despatch of the first consignment of 200 cartons of milk powder. Similarly Exhibits P-27 and P-28 are the postal receipt and acknowledgment, which the petitioner signed in the same capacity for taking delivery of the postal article, which contained Exhibit P-46, the railway receipt relating to the second consignment of 200 cartons of milk powder. The petitioner signed Exhibits P-43 and P-44 as Honorary Secretary to the above Samithi, and took delivery of both the aforesaid consignments of milk powder. The charge against the petitioner for the offence under section 467, Indian Penal Code related only to the signing of Exhibits P-43 and P-44, and taking delivery of the goods under these receipts. The question is whether the petitioner has thereby committed the offence under section 467, Indian Penal Code. The contention of the petitioner’s learned Counsel is that a person, who assumes a fictitious name and signs in that capacity, is not guilty of the offence of forgery. Section 463, Indian Penal Code, defines forgery; and it reads as follows: “463. Forgery.-Whoever makes any false document or part of a document, 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 cause any person to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.” According to the above definition, the essence of the offence is the making of a false document. Section 464, Indian Penal Code states when a person is said to make a false document; and it reads as follows: “464. Section 464, Indian Penal Code states when a person is said to make a false document; and it reads as follows: “464. Making a false document.-A person is said to make a false document- First-who dishonestly or fraudulently makes, signs, seals or executes a d document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or Secondly-Who, without lawful authority, dishonestly or fraudulently by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him he does not know the contents of the document or the nature of the alteration.” According to the above section, a person who dishonestly or fraudulently signs adocument or any part of a document with the intention of causing it to be believed that such document or part of a document was signed by or by the authority of a person by whom or by whose authority he knows that it was not signed is said to make afalse document. In this case the petitioner has signed Exhibit P-43 and P-44, with the intention of causing it to be believed that these document were signed by the Secretary of the Kerala Sarvodaya Samithi, knowing very well that such a Samithi did not exist, that he was not the Honorary Secretary thereof, and he had no authority to sign it. The words ‘dishonestly’ and ‘fraudulently’ are defined in sections 24 and 25 of the Indian Penal Code. Section 24 reads as follows: “24. Dishonestly.-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing ‘dishonestly’”. The words ‘dishonestly’ and ‘fraudulently’ are defined in sections 24 and 25 of the Indian Penal Code. Section 24 reads as follows: “24. Dishonestly.-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing ‘dishonestly’”. and Section 25 reads as follows: “25. Fraudulently.-A person is said to do a thing fraudulently if he does; that thing with intent to defraud, but not otherwise.” There can be no doubt that the petitioner signed Exhibits P-43 and P-44 dishonestly and fraudulently. If he did not sign these documents in that capacity, he would not have got delivery of the two consignments of milk powder, which he was not entitled to get; and by signing these documents in that capacity, he made a wrongful gain to himself. It is also beyond dispute that he did that with the intention of defrauding the CARE. It therefore follows that, by signing Exhibits P-43 and P-44 as Honorary Secretary of the Samithi and getting delivery of the goods from the railway station, the petitioner committed the offence of forgery. The documents, which he forged are valuable securities within the meaning of that term as defined in section 30 of the Indian Penal Code; and the petitioner is, therefore, guilty of the offence under section 467, Indian Penal Code. Reference may, in this connection, be made to the decision is Quern Empress v. Pera Raju1. The accused in that case, by advertisements and hand bills, notified throughout India that a work on English idioms, designed specially for matriculates, by one Robert S. Wilson, M.A., was ready, that the price was Rs. 2-4-0, and that intending purchasers might remit it by money orders to Robert S. Wilson, M.A., Council House Street, Calcutta. About a month or two later, the accused signing a letter as Robert S. Wilson, wrote to the postal authorities at Calcutta, asking that all money orders received for Robert S. Wilson may be re-directed to him at Rajam in the District of Vizagapatam. Signing himself again as Robert S. Wilson, he wrote to the Post Master at Rajam to say that his clerk Seshagiri Rau would call in a day or two for these money orders, and that their value might be paid to the clerk, who would bring a note from him. Signing himself again as Robert S. Wilson, he wrote to the Post Master at Rajam to say that his clerk Seshagiri Rau would call in a day or two for these money orders, and that their value might be paid to the clerk, who would bring a note from him. The accused since called in person at the post office at Rajam; and representing that he was the clerk Seshagiri Rau, he induced the Post Master to pay him the value of 25 money orders. There was no person known to the Post Master either as Robert S. Wilson or as his clerk Seshagiri Rau, and the prosecution case was that both were fictitious persons. It was contended that, on these facts, the offence of forgery cannot be sustained. The learned Judges repelled this contention and observed as follows: “As to thecharge of forgery it is wholly immaterial whether the name forged isthat of a fictitious person who never existed or of a real person. It is as much a forgery in the one case as in the other provided the fictitious name is assumed for the purpose of fraud in the particular case under trial. Section 464, Explanation 2 of the Indian Penal Code, provides that the making of a false document in the name of a fictitious person intending it to be believed that the document was made by a real person may amount to forgery (see also the illustration to the Explanation).” The petitioner’s Counsel relied on the decision of a learned Single Judge of the High Court of Andhra reported in Venkatasuryanarasimha Rao, In re.,2 In this case the accused issued several bills in the names of fictitious persons to cover up the sales; and the question was whether the accused was guilty of the offence under section 465, Indian Penal Code. His Lordship held that, though the bills which the accused issued were in the names of fictitious persons, they did not amount to making false documents within the meaning of section 464 of the Indian Penal Code. His Lordship held that, though the bills which the accused issued were in the names of fictitious persons, they did not amount to making false documents within the meaning of section 464 of the Indian Penal Code. His Lordship pointed out that what is essential is that the accused person must make a document with the intention of making it believe that it was signed by or by the authority of someone else, while he knows that it was not so made or authorised by that person, and that the accused did not in this case make the bills purporting to be made by or authorised by some person. This decision is of no help to the petitioner. The facts of this case are entirely different in nature. The learned Counsel also relied on a decision reported in The Queen v. Martin.1In that case, the prisoner purchased a pony from the prosecutor and issued a cheque signing as William Martin, whereas his name was Robert Martin. He was prosecuted for the offence of forgery; and the Court held that this offence would not lie; because “In all forgeries the instrument supposed to be forged must be a false instrument in itself; and if a person give a note entirely as his own, his subscribing it by a fictitious name will not make it a forgery, the credit there being wholly given to himself, without any regard to the name, or any relation to a third person.” This case does not, therefore help the petitioner. It was then contended by the petitioner’s learned Counsel that the two consignments of milk powder sent by the CARE were really intended for him; that they were sent to him in a fictitious name, and that he committed no offence in signing these documents in the name in which they were sent to him. This contention, though it appears plausible, cannot stand scrutiny. The two consignments of milk powder were not sent to the petitioner, but to the Kerala Sarvodaya Samithi, an organisation which the CARE believed to exist; and Exhibit P-43 and P-44, the two railway receipts, were sent to the Honorary Secretary of the non-existent Samithi. This contention, though it appears plausible, cannot stand scrutiny. The two consignments of milk powder were not sent to the petitioner, but to the Kerala Sarvodaya Samithi, an organisation which the CARE believed to exist; and Exhibit P-43 and P-44, the two railway receipts, were sent to the Honorary Secretary of the non-existent Samithi. Therefore, the petitioner by getting these documents from the post office, and obtaining delivery of the two consignments of milk powder from the railway by signing the said documents as Honorary Secretary of the Samithi, a capacity which he never had, has certainly made a false document; and he is guilty of the offence under section 467, Indian Penal Code. In the result, this Criminal Revision Petition fails and is hereby dismissed. M.C.M. ----- Petition dismissed.