Report No. 42
2.51. Section 2.-"reason to believe".-
Section 26 explains the meaning of the words "reason to believe", and emphasises that only if a person has sufficient cause to believe a thing can be said to have reason to believe it. The Code thus accepts only "rational belief" as something worth taking notice of; and that is how in law it should be, in order that needless controversy about the mere existence of a belief does not arise in courts. In actual working, the explanation has been found satisfactory, and we see no reason to disturb it.
2.52. Section 2.-"possession of property".- Section 27 says.-
"When property is in the possession of a person's wife, clerk or servant, on account of that person, it is in that person's possession within the meaning of this Code."
This explanation is particularly useful in relation to the offence of theft, and two illustrations under section 378 (which defines "theft") bring out the point of the explanations.-
"(d) A being Z's servant and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate, without Z's consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return, A carries the plate to a goldsmith and sells it. Here the plate was not in Z's possession. It would not therefore be taken out of Z's possession and A has not committed theft, though he may have committed criminal breach of trust."
Section 27 is confined to a wife, clerk or servant, because of the close proximity of such persons to the person on whose behalf they could be holding property. The explanation is intended to do away with any argument based on any nice distinction between possession and custody, without, of course, obliterating that distinction. We think the explanation is helpful, and should be retained, although we do not suggest any extension of this principle to cover other persons, such as trustees, agents or bailees.
2.53. Section 2.-"counterfeit".-
Section 28 explains the word "counterfeit", used mostly in relation to offences governing coins, currency notes and revenue stamps. To counterfeit is "to make one thing to resemble another thing intending by means of that resemblance to practise deception or knowing it to be likely that deception would thereby be practised."
There are two explanations to the section, of these, the second explanation is important. It says, "when a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it should be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or know it to be likely that deception would thereby be practised."
Counterfeiting has, thus, two ingredients:
(1) actual imitation of something, and
(2) intention to induce a belief in others that the imitation is the genuine article.
The explanation directs that the fact of close resemblance sufficient to deceive another Would be presumptive evidence that deception was intended. It was suggested that the presumption should not be obligatory, but left to the discretion of the court; but we think that there is little room for discretion here, in view of the terms of the explanation, and the presumption would arise only if the court in fact thought the resemblance close enough to deceive.
It may of course happen that an imitation prepared innocently has a close resemblance to the original. Such innocent imitations, however, are not "counterfeits", as there is no intention to deceive anyone, and that can be readily shown by disclosing the purpose of the imitation. We do not think that any innocent imitation can be brought within the meaning of "counterfeit" because of the explanation, although, of course, the innocent intention, in such circumstances, will have to be disclosed and the court persuaded that was so. In certain circumstances, proof of innocent imitation may be onerous, but that does not persuade us to water down the second explanation. We therefore propose to leave the section as it is.
2.54. Section 2.-"document".- Section 29 defines a "document" thus.-
"The word 'document' denotes any matter expressed or described upon any substance by means of letters, figures, or marks or by more than one of those means intended to be used, or which may be used, as evidence of that matter."
This is followed by two explanations, the first of which states that "it is immaterial by what means or upon what substance the letters, figures or marks are formed or whether the evidence is intended for, or may be used in, a Court of Justice or not." The second provides that letters, figures or marks which have a special significance according to usage should be understood to have that meaning, "although the same may not be actually expressed." Half a dozen illustrations are attached.
2.55. Two other definitions of "documents".-
The Evidence Act has a definition of "document" which reads1.-
"Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter.
Five illustrations are given of which two are practically the same as those given in the Code and the others are different. The General Clauses Act also has a definition which is practically the same as the one in the Evidence Act. It reads2.-
"Document" shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, which is intended to be used or which may be used for the purpose of recording that matter."
No illustrations are appended.
1. Section 3, Indian Evidence Act, 1872.
2. Section 3(18), General Clauses Act, 1897.
2.56. Definition in the Code to be retained.-
The main idea in all the three Acts is the same and the emphasis is on the "matter" which is recorded, and not on the substance on which the matter is recorded. We feel, on the whole, that the Penal Code should contain a definition of "document" for its own purpose, and that section 29 should be retained. The two Explanations attached to section 29 are, we think, helpful. The first Explanation helps to clear ambiguity about the import of the word "evidence" used in the section, and is in accord with the view of the Courts.1
1. (a) Dharmindra v. Rex, AIR 1949 All 353.
(b) M.S. Iyengar v. Queen, ILR 4 Mad 393.
2.57. Amendment proposed.-
The definition is wide enough to cover every kind of document. Some doubt has, however, been expressed whether it includes mechanical records of sound or image. We are anxious that it should, as such mechanical devices like "tape records" are now in frequent use. The Supreme Court has held1 that a conversation recorded on a tape is good evidence, and obviously, if a person forges a tape record, he ought to be punishable the same way as a person preparing a false document. We intend to make this clear by adding an illustration to section 29. We propose, in fact, to delete some of the more obvious illustrations under section 29, and insert some more useful ones taken from the Evidence Act. Also we suggest a slight alteration in the language of the main section to make its intention clearer. The section should, we think, read as follows.-
"29. Document.- The word 'document' denotes any matter recorded upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.
Explanation 1.- It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice or not.
The following are document.-
(a) a map or plan;
(b) a caricature;
(c) a writing on a metal plate,2 stone or tree3;
(d) a film, tape or other device on which sounds or images are recorded.
Explanation 2.- Whatever is expressed by means of letters, figures or marks as understood by mercantile or other usage, shall be deemed to be recorded by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.
A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement as understood by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words "pay to the holder" or words to that effect had been written over the signature."
1. Pratap Singh Kairon, (1964) 4 SCR 733: AIR 1964 SC 72 (86) para. 15.
2. See section 3, Evidence Act.
3. As to trees, see Emp. v. Krishnappa, AIR 1925 Born 327 (Letters imprinted on trees).
2.58. Section 3.-"valuable security".-
A "valuable security", mentioned in section 30, is one kind of document, the test being that it creates or deals with a "legal right". No difficulty has arisen about the meaning of this expression, although, of course, the question whether a document does or does not create a legal right has to be determined in each case according to the nature of the document. We do not suggest any change in section 30.
2.59. Section 3.-"will".-
Section 31 defines a "will". So does the General Clauses Act1. The term is now so well understood that a separate definition in the Code seems unnecessary, and the General Clauses Act definition ought to be enough. We would, therefore, delete section 31.
1. Section 3(64), General Clauses Act, 1897.
2.60. Sections 32 and 3.-"act" and "omission".-
Section 32 merely says that "act" includes illegal omissions. The General Clauses Act1 says the same thing, so that section 32 is now unnecessary. The same considerations apply to section 33, which explains that an act includes a series of acts, and an omission, a series of omissions.-exactly as the General Clauses Act does1. Both these sections can, therefore, be omitted.
1. Section 3(2), General Clauses Act, 1897.