To know whether an incorrect statement in Vakalatnama amount to forgery in India or not, let us get familiar with the term “Vakalatnama”.
“Vakalatnama” has been defined in Advocates Welfare Fund Act 2001 in section 2(u) as, “Vakalatnama” is a memorandum for appearing or any other document which empowers an advocate to appear or plead before any Court of law, tribunal or other authority on behalf of his client;
One who holds the Vakalatnama is called a Pleader, an Advocate, Vakil, Counsel, or an Attorney having authorization to accept the Vakalatnama on behalf of the client or his client or one who is a party to the litigation.
Vakalatnama represents a written document which if received by an Advocate from his client which declares to appear or plead before any Court of law on his behalf.
An incorrect statement at Vakalatnama does not amount to forgery in India.
Vakalatnama is the document which creates a specific relationship between the lawyer and the client.
Since the appellants have admitted their signatures in the vakalatnama and the vakalatnama that they have signed is an advertent mistake even if the trial proceeds, there may not be arising any possibility of the appellants being convicted for the alleged offences like forgery and for making forged document.
It can be termed as an inadvertent mistake. With no intent to cause misrepresentation and harm or damage to any party who being well acquainted with the facts of the case hence would not be considered as a forged document.
An important case reference in this matter is Sasikala Pushpa And Others Vs. State of Tamil Nadu
An incorrect statement in Vakalatnama amount to inadvertent mistake without intention to cause misrepresentation so it does not amount to forgery.
At this moment we can only express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts.
Vakalatnama, a species of Power of Attorney, is an important document, which enables and provides authority to the pleader to appear on behalf of a litigant to do several acts as an Agent, upon certain things which are binding on the litigant who is the principal. Therefore, it must be properly filled/attested/accepted with care and caution. The signature of the litigant obtained on blank Vakalatnamas and filling them subsequently should not be repeated so often.
Here is a judicial notice of the defects routinely found in Vakalatnamas filed in courts:-
(a) Have to mention the executing person’s name in the Vakalatnama and cannot leave the particular column blank;
(b) Must have to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor by either affixing a seal or by mentioning the name and designation below the signature of the executants.
(c) Failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney;
(d) Sometimes many persons sign a single vakalatnama, and fail to affix the signatures, point by point, and do not mention their serial numbers or names in brackets. Often it is not possible to know which person have signed the Vakalatnama.
(e) The problem in identifying the person who have executed the Vakalatnama.
These routine defects arise, as Registries/Offices fail to verify the Vakalatnamas with the care and caution they deserve. Such an undesirable act many times can lead to avoidable complications at later stages, as in the present case.
These incorrect things happen quite often in Vakalatnama.
So proper care should be taken to avoid these incorrect statements which may amount to inadvertent mistake without intention to cause misrepresentation so it does not amount to forgery. But only when it is done with proper care and caution these mistakes could be avoided. Here Mens Rea plays an important factor whether the incorrect statement is incorporated to cause wrongful gain or loss or injury to the other party or not.
Fraud is done when intentionally deception is aimed for incorporating some wrongful gain or wrongful loss or injury to the other party.
Whether there was any intention to cause the wrongful statement to do wrongful gain or loss or injury to the other party is what the Court observes in these types of cases. If there was no intention to cause wrongful gain or loss or injury to the other party then it would only amount to inadvertent mistake without intention to cause misrepresentation so it does not amount to forgery in India.
This article is authored by Indranil Adhikary, student of BA.LLB at Bengal Law College at Bolpur.