Author: Kunal Khare
Introduction
It was Oscar Wilde who said, “Imitation is the sincerest form of flattery . . .”. Forgery is a fraudulent act of creating a copy of a document, signature, a bank note or work of authorship that is intended to be passed off as genuine when it is not. Forgery in simple terms means fabricating and producing false documents or part of a document to cause harm to an individual. It also includes fraudulently making or altering writing or signature claiming/purporting to be made by another, and the false making or material alteration or addition to a written instrument like a cheque or a bond for the purpose of fraud and deceit leading to harming someone. Negotiable instruments, cheques, bonds, wills and contracts are some of the examples of documents which can be forged.
Relevant Provisions of IPC
Offences related to forgery are given in Chapter XVIII of IPC. Sec 463 deals with forgery whereas Sec 465 is punishment for forgery. What constitutes a false document is elaborately given in Sec 464. Whereas Sec 466 to Sec 469 are few aggravated offences of forgery. Sec 470 defines a forged document.
Section 463 – forgery –Whoever makes any false documents 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 enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.[2]
Section 464- making of a false document- A person is said to make a false document-
First– Who dishonestly or fraudulently makes, signs, seals or executes a 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 practiced upon him, he does not know the contents of the document or the nature of the alteration.[3]
Section 465- Punishment for forgery – Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.[4]
Ingredients
In the landmark case Sushil Suri v. C.B.I.[5] the Supreme Court laid down the basic elements of forgery in S.463 IPC as follows:
- Making a false document or part of it.
- Such act is done with intention ;
- To cause damage or injury to the public or any person
- To support or claim any title
- To cause any person to part with property
- To cause any person to enter into an express or implied contract
- To committed fraud or that fraud is committed
Explanation
Sec 463 defines the offence of forgery whereas Sec 464 talks about when a false document is said to have been made for the purpose of committing the offence of forgery. One ingredient of Sec 463 is making of a false document, and Sec 464 defines that ingredient. Further, three conditions are given in Sec 464 providing a wide view when a false document is said to have been made. Sec 465 provides the punishment for the commission of the offence of forgery.
Sec 463 says for forgery to take place there must be making of false document or false electronic record or part of a document or electronic record. If there is no making of any of the above-stated things then case of forgery cannot arise. The intention of offender also matter under this section. Five situations are given under this section and if the intention of offender in any one of the situation is met then one of the ingredient of forgery is fulfilled.
While Sec 463 defines forgery as making of false document or false electronic record with intention to cause damage, whereas Sec 464 defines the making of false document or false electronic record to bring it within the bounds of forgery.
According to Sec 464, making of false document or false electronic record means making of a document or a part, signing of the document or electronic record, execution of the document or electronic record fraudulently or dishonestly. Also when the signature, seal or date is false it can be said it is a false document. This section also covers the cases when accused signs document or electronic record, or affix any digital signature on an electronic record.
An analysis of Sec 464 shows that there are three ways to make a false document :
- By making, signing, sealing or executing a document or part of a document, or by making or transmitting any electronic record or a part of any electronic thereof, or by affixing any digital signature on any electronic record.
- By altering a document or an electronic record.
- By causing a person who is of unsound mind or intoxicated and does not know the contents of the document or electronic record or nature of the alteration, to sign, seal or execute or alter.
There are three explanations attached to section 464 which explain three important aspects of this law.
- The first of the explanation states that a man’s signature of his own name may amount to forgery. The illustrations under this explanation illustrate that the offender or the accused must have dishonest or fraudulent intention if he is to be held guilty.
- Like, a signs his own name to a bill of exchange, intending that it may be believed that the bill was drawn by another person of the same name. A has committed forgery.
- The second explanation states that the making of a false document in the name of a fictitious person with the intention that it may be believed that the document was made by a real person, or in the name of a deceased person with the intention that it may be believed that the document was made by a person when he was alive, may amount to forgery.
- This explanation is self-explanatory in nature and can be better be understood by an illustration: X draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. X commits forgery.
- The third explanation states that the expression “affixing electronic signature” shall have the same meaning as assigned to it by section 2(i) (d) of the Information Technology Act, 2000.
Sec 465 prescribes the punishment for the offence of forgery. The offence under this is non-cognizable, non-compoundable, bailable and triable by a magistrate of the first class.
It can be said that Sec 466 is an aggravated offence of forgery. It states that when a person forges a document or electronic record, and document purports to be record of proceedings of a Court of Justice, or register of birth, baptism, marriage or burial or register kept by a public servant as such, or certificate or document made by public servant in his official capacity, or authority to Institute or defend suit etc. or power of attorney. Mostly this section applies to those cases where a certificate or a document is forged by a person with a view to make it appear that it was duly issued by a public office, e.g., forging a marriage certificate.
Under Sec 467, the person forges the document which purports to be a valuable security or a will, or an authority to adopt a son or authority to any person to make a transfer valuable security or authority to receive the principal, interest or dividends on a valuable security or authority to receive or deliver money, movable property or valuable security or acquaintance or receipt acknowledging the payment of money, or acquaintance of receipt for any movable property or valuable security. The offence under this section is an aggravated form of the offence described in the preceding section. The forged document must be one of those mentioned in the section.
When a person forges a document or an electronic record for the purpose of cheating then Sec 468 comes into play and this section does not require that the accused had actually committed the offence of cheating, what is material is the intention of the accused in committing forgery. Whereas the purpose of forgery is to harm or defame the reputation of someone Sec 469 is used.
Sec 470 is – A false document or electronic record made wholly or in part by forgery is designated “a forged document or electronic record”. [6]
According to Sec 471, a person uses as genuine of any document which is known or believed to be a forged document. The accused used it fraudulently or dishonestly, knowingly or had reason to believe that it was a forged document or electronic record.
Making or possession of counterfeit seal, plate, etc, with intent to commit forgery which would be punishable under Section 467, is punishable under Sec 472. Whereas under Sec 473, whoever makes or counterfeits any seal, plate, etc with intention of committing forgery which would be punishable under any section of the same chapter expect Sec 467 or has in his possession any such seal, plate, etc then he will be punished under this section.
When a person has a document or an electronic record in his possession knowing it to be a forged one and intended that the same shall be fraudulently or dishonestly be used as a genuine, then he will be punished under Sec 474.
Case Laws
1. Sheila Sebastian v. R. Jawaharaj[7]
Date of Judgment: May 11, 2018
Supreme Court, in this case, ruled that-
“Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made.”
i.e. that the charge of forgery cannot be imposed on a person who is not a maker of the same.
The Court also held that until and unless the ingredients of Sec 463 are satisfied an individual can’t be convicted under Sec 465 by solely relying upon the ingredients of Sec 464, as an offence of forgery will remain incomplete.
2. Ibrahim & OrsV/s State of Bihar & Anr[8]
In this landmark case, the Supreme Court of India held that a person is said to have made a ‘false document’ if;
- He made or executed a document claiming to be someone else or authorised by someone else; or
- He altered or tampered a document; or
- He obtained a document by practising deception, or from a person not in control of his senses.
Supreme Court also held that to get a conviction under Sec 465 of IPC false document must have been made with the intention. The court in the case observed that;
“There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner’s behalf.”
3. Mir Nagvi Askari v. C.B.I[9]
The Supreme Court held that a person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section.
- The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly, the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else.
- The second criteria of the section deal with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore in our opinion, the second criteria of the said section are also not applicable to the present case.
- The third and final condition of Section 464deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind etc. Such is also not the case before us. Indisputably, therefore, the accused before us could not have been convicted with the making of a false document.
Conclusion
It should be noted that under Sec 463 intention is essential; five situations are provided in the section. Intention is the essence of the offence of forgery. To constitute it, some damage or injury must be intended to be caused by false document to an individual or to the public.
Under the Sec 464, it is given that the act should be done dishonestly or fraudulently. Also, the definition given is Sec 463 is in itself subjected to the Sec 464 that is defining the essential ingredient of Sec 463. So, it can be said that whichever of the intent provided in Sec 463 is applicable, it should have been done fraudulently or dishonesty to support the allegation of forgery.
A charge of forgery often boils down to intent; burden of proof is on the prosecution to prove the intent of accused beyond reasonable doubt. The prosecution also needs to prove various elements and are discussed above in brief.
[2] Section 463, IPC 1860
[3] Section 464, IPC 1860
[4] Section 465, IPC 1860
[5] 5 SCC 708, AIR 2011 SC 1713
[6] Section 470, IPC 1860
[7] AIR 2018 SC 2434
[8] (2009) 8 SCC 751
[9] AIR 2010 SC 528
About the Author: Kunal is a 2017-22 Batch student at National Law Institute University, Bhopal.
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