‘Forgery’ and ‘Making of False Documents’: Sheila Sebastian V/s R. Jawaharaj & Anr. (Criminal Appeal Nos. 359-360 of 2010)

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Preface:

Section 463 of the Indian Penal Code, 1860 defines the offence of forgery and Section 464 of the Indian Penal Code, 1860 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 of the Indian Penal Code, 1860. Therefore, it can be stated that, Section 464 of the Indian Penal Code, 1860 defines one of the ingredients of forgery, that is, making of a false document.

Section 465 of the Indian Penal Code, 1860 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465 of the Indian Penal Code, 1860, first it has to be proved that forgery was committed under Section 463 of the Indian Penal Code, 1860, implying that ingredients under Section 464 of the Indian Penal Code, 1860 should also be satisfied. Therefore, until and unless the ingredients specified under Section 463 of the Indian Penal Code, 1860 are satisfied, a person cannot be convicted under Section 465 of the Indian Penal Code, 1860 by solely relying on the ingredients of Section 464 of the Indian Penal Code, 1860, as the offence of forgery would remain incomplete.

When a person is said to have made a false document?

In the matter of: Md. Ibrahim & Ors V/s State of Bihar & Anr, (2009) 8 SCC 751, it was held that, a person is said to have made a ‘false document’, if:

1.   He made or executed a document claiming to be someone else or authorized by someone else; or,

2.   He altered or tampered a document; or,

3.   He obtained a document by practicing deception, or from a person not in control of his senses.

In the matter of Sheila Sebastian (Supra) it was observed that:

I.          Forgery can be described as merely the means to achieve an end- the end being deception. The main difference between cheating and forgery is that in cheating the deception is oral, whereas in forgery it is in writing.

II.         The very basis of the offence of forgery is the making of a false document with the criminal intention to cause damage to any person.

III.       Only those acts of forgery, which are accompanied by the elements of deception and injury, can be said to be covered by the definition of forgery under Sections 463 and 464 of the Indian Penal Code, 1860.

IV.       Making of false document is the soul of forgery. What constitutes a false document or part of document is not the writing of any number of words which in themselves are innocent, but the affixing of the seal or signature of some person to the document or part of a document knowing that the seal or signature is not his and that he gave no authority to affix it. In other words, the falsity consists in the document, or part of a document, being signed or sealed with the name or seal of a person who did not, in fact, sign or seal it.

V.        To constitute forgery within the meaning of Section 463 of the Indian Penal Code, 1860, the following ingredients must be established:

i.          The document or the part of the document must be false;

ii.         It must have been made dishonestly or fraudulently within the meaning of the words as used in Section 464 of the Indian Penal Code, 1860; and,

iii.       It must have been made with one of the intents specified under Section 463 of the Indian Penal Code, 1860.

VI.       Preparation for forgery is not an offence under the provisions of the Indian Penal Code, 1860.

Excursus:

i.          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 authorized or empowered by the owner, to execute the deed on owner’s behalf. Latter is a case of forgery and not the former.

ii.         When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. Both these possibilities fall outside the purview of the offence of forgery.

When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document, purporting to convey some property of which he is not the owner, is not execution of a false document as defined under Section 464 of the Indian Penal Code, 1860. If what is executed is not a false document, regards being had to Sections 463 and 464 of the Indian Penal Code, 1860, there is no forgery.

iii.       The definition of ‘false document’ is a part of the definition of ‘forgery’. Making of a document is different than causing it to be made. For constituting an offence under Section 464 of the Indian Penal Code, 1860, it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.

iv.        Even if a man has a legal claim or title to property, he will be guilty of forgery if he counterfeits documents in order to support it.

For example: X sells and conveys an estate to P. X afterwards, in order to defraud P of his estate, executes a conveyance of the same estate to Q, dated 6 months earlier than the date of the conveyance to P, intending it to be believed that he had conveyed the estate to Q before he conveyed it to P. X has committed forgery.

v.         Where an accused person obtains a genuine signature upon a false document, by inserting the document in a heap of papers placed for signature before the person signing it, the accused person cannot be held liable for commission of an offence under Section 464 of the Indian Penal Code, 1860 as no deception can be construed to have been practiced on the person signing the document preventing him from knowing the nature of the document.

Takeaways:

A person is said to have made a false document or record if one of the following three conditions stand satisfied, namely:

a.   Impersonation: 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.

b.   Altering the documents by causing interlineations and obliterations: Where a person without lawful authority alters a document after it has been made.

c.   Receiving the documents by exercising deception: When the document is made to be signed by a person who due to his mental incapacity (intoxication or unsoundness of mind) does not know the contents of the documents which were made.

For a document to be a false document, it is not necessary that it must be a complete document. However, if a document, say a deed of sale is caught before any signature, in part or in full, is put thereon, then, the deed will not be treated as a false document inasmuch as the offence will still remain at the stage of preparation, but if the accused is caught, while signing such a deed, the offender can be said to have been caught, when the offence had gone beyond the stage of preparation and had already entered into the zone of attempt to commit the offence of forgery. Therefore, before the process of signing of the deed commences, the ‘making’ of false document will remain under process and the crime will remain within the stage of ‘preparation’. It will be just like making of a duplicate key to a lock for committing theft or procuring of poison for committing murder. For merely making such a key, even if the intended offence is theft, one cannot be held to have attempted to commit the offence of theft. Similarly, procuring of poison, in itself, will not constitute offence of attempt to commit murder, though the objective might have been to administer poison to a specific person. The law punishes a man not for guilty intention, but for the overt act done.

About Shivam Goel

Shivam GoelShivam Goel; B.Com (H), LL.B. (Delhi University), LL.M. (NUJS, Kolkata); Author of: Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India, Partridge India, 2015; Associate, S.G. & Co. (New Delhi); advocate.shivamgoel@gmail.com

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