CRIMINALITY OF FORGERY

Introduction

Forgery, in law, is making of a false writing with an intent to defraud. Writing, to be forgery, must either have legal significance or be commonly relied upon in business transactions. It need not be handwriting; the law of forgery covers printing, engraving, and typewriting as well. In most jurisdictions, however, “writing” excludes objects such as works of art, which when misrepresented are legally considered to be falsifications or frauds.

Forgery

According to section 463 of Indian Penal Code, 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 enter into any express or implied contract, or with intention to commit fraud or that fraud may be committed, commits forgery.

As per Section 463 of the Indian Penal Code, 1860 forgery is committed when an individual makes any false documents or false electronic records or a part of such documents or records with an intention to cause injury or damage to the public or any other person, or to support a particular claim or title, or to cause any other person to part with property or to enter into any express or implied contract, with an intention to commit fraud or that fraud may be committed.

Some of the documents that are often forged are wills, deeds, patents, cheques, certificates of authentication, identification documents, medical prescriptions, contracts, etc.

Essentials for forgery as per Section 463 of IPC

Such document or electronic record or any part of it should be created dishonestly or fraudulently

The document or electronic record or the part of it should be false in fact

Such creation of a false document or electronic record or any part of it should be done with an intention to –

• Cause injury or danger to the public or any individual.
• Cause any individual to part with property.
• Support any claim or title.
• Enter into any express or implied contract.
• Commit fraud or that fraud may be committed.

The previous elements were determine in the case of Sushil Suri v. CBI and Another (2011). It is admissible to understand that the term ‘fraud’ in Section 463 of IPC refers to the infringement of an individual’s civil liberties and such intention to defraud involves an intention to deceive and cause legal harm. However, a case of forgery can only be made when an item of fraud is present in the invention of a dishonest document or an electronic record or any of it.

The abovestated elements were determined in the case of Sushil Suri v. CBI and Another (2011). It is imperative to understand that the term ‘fraud’ in Section 463 of IPC refers to the infringement of an individual’s civil liberties and such intention to defraud involves an intention to deceive and cause legal harm. However, a case of forgery can only be made when an item of fraud is present in the invention of a dishonest document or an electronic record or any of it.

Forgery is often used by white-collar criminals to materialize corporate frauds and scams that result in significant losses to individuals and governments. Forging documents is particularly common; crimes such as misappropriation of funds, embezzlement, cheating, etc., typically result from forged documents. Besides forging documents, Forgery can occur in signatures, prescriptions, artwork, literary material, and so on.

Forgery is often used by white-collar criminals to materialize corporate frauds and scams that result in significant losses to individuals and governments. Forging documents is particularly common; crimes such as misappropriation of funds, embezzlement, cheating, etc., typically result from forged documents. Besides forging documents, Forgery can occur in signatures, prescriptions, artwork, literary material, and so on.

1. Material alteration- The document in possession of the person must be altered so that it has a significant effect on its legal implications.

• Intention to defraud- A common ground for conviction under criminal law is intended. Therefore, the perpetrator of the crime must have an intention to falsify a genuine document.

• Ability to defraud – The forged document must appear so genuine that it can mislead most people into believing its genuineness.

4. Absence of intention– In each case of forgery, the ultimate factor that establishes the offence is the element of intent. Thus, if the individual who is accused of forgery had no intention to commit the said offence then they cannot be held guilty.
5. Coercion– If the individual who is accused of committing forgery establishes the fact that he had to commit forgery due to coercion or any such threat leading to coercion, then such an individual cannot be held guilty.
6. Lack of knowledge– In case the individual who is accused of committing forgery proves that they had no knowledge that the document or legal instrument in question is fraudulent then they cannot be held guilty for the offence of forgery.

Comprehending Section 467 IPC

Forgery of valuable security, will, etc.—Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Ingredients of Section 467 IPC

The following are the essential ingredients of Section 467 of IPC, 1860 –

1. Any document or legal instrument that is forged purports to be a –
   1. A valuable security, or
   1. A will, or
   1. An authority to adopt a son, or
2. Such forged document or legal instrument gives authority to any individual –
   1. To make or transfer valuable security
   1. To receive the principal interest or dividends or valuable security.
   1. To receive or deliver any money, movable property or valuable security.
3. To an acquittance or receipt –
   1. For the purpose of acknowledging the payment of money.
   1. For the delivery of any movable property or valuable security.

Is IPC section 467 bailable ?

Section 467 of IPC falls under the category of non-bailable offence. In non-bailable offences, bail is considered a privilege unlike in bailable offences where bail is considered a right. Therefore, the accused cannot simply apply for bail before being presented in front of the magistrate. In such cases, the accused must   apply for anticipatory bail before being arrested if he/she has a reason to believe that they are heading down that path. The court will then consider various factors such as previous criminal record of the accused (if any), the status of the accused in the society, the motive behind the offence, charge sheet filed by the police, etc. After considering all the aforementioned details of the case, the court will decide whether bail will be granted or not.

Cognizance of IPC section 467 : A cognizable offence is defined as an offence in which the police can arrest the offender without the need of a warrant and the offender has to be presented before the magistrate within 24 hours.

Whereas, in non-cognizable offences, the police need approval of the court or commission of a warrant before proceeding to make an arrest.

Punishment under Section 467 IPC

Forgery can be understood to be a grave and heinous crime just by having a glance at the punishment given for it. Any person who commits an offence under Section 467 of the IPC shall be given the punishment of imprisonment for life or ten years. The offender may also be made liable to pay a fine in addition to his imprisonment.

OFFENCE	PUNISHMENT	COGNIZANCE	BAIL	TRIABLE BY
Forgery of valuable security, will or authority to make or transfer any valuable security, or to receive any money, etc.	Imprisonment for Life or 10 Years + Fine	Non-cognizable	Non-bailable	First class Judicial Magistrate
When the valuable security is a promissory note of the Central Government	Imprisonment for Life or 10 Years + Fine	Cognizable	Non-bailable	First class Judicial Magistrate

 

Case laws dealing with Section 467 IPC

Daniel Hailey Walcott And Anr. v. State, 1968 – In this case, the appellant Daniel Hailey Walcott made unauthorized endorsements in his passport having his photograph to travel to countries where he was not allowed to go and such unauthorized endorsements were made dishonestly and fraudulently. It was held that any individual who forges a passport and further makes use of it as a genuine passport shall be held guilty under Section 467 of the IPC.

Krishan Lal v. State, 1976 – In this case, the accused received a certain amount of money from a postman by falsely representing himself as the payee. The accused signed the postal acknowledgement in the name of the original payee. The court held that the accused has committed the offence of forgery as per Section 467 of the IPC.

Shriniwas Pandit Dharamadhikari v. State of Maharashtra, 1981 – In this case, the appellant had forged two certificates to get admission in the Arts the Commerce College affiliated to Poona University. The Hon’ble Supreme Court held that the certificates forged to get admission in a college or university shall not be considered as valuable security under Section 467 of the IPC, however, such offence will be considered under Section 471 read with Section 465 of the IPC.

Inder Mohan Goswami and Another v. State Of Uttaranchal and Others, 2007 – In this case, the respondents had committed a breach by purporting to sell a particular part of the land for which an agreement to sell was procured by misusing the Power of Attorney given to them for some other part of the land. They were also executing sale deeds without any right whatsoever. The appellants contended that the trial court was unjustified in taking cognizance of the matter wherein no prima facie case was established against the appellants. They further stated the trial court was gravely mistaken in not considering the facts of the case in toto in the required perspective. It was also stated that the trial court failed to correctly comprehend the investigation reports submitted by two different investigating officers. The court noted that the respondents in the case had committed a criminal breach by scheming to sell a particular part of the land illegally for which an agreement to sell was obtained by abusing the Power of Attorney given to the respondents for some other part of the land. In this case, one of the respondents was held guilty under Section 467 of the IPC.

Swapna Patker v. State Of Maharashtra And Ors, 2021 – In this case, a doctor was accused of using a fake Ph.D certificate for practising in a hospital in Mumbai. However, the Bombay High Court granted interim bail to the doctor on the grounds that the Ph.D certificate does not fall within the ambit of Section 467 of the IPC.

Section 471 in The Indian Penal Code

471. Using as genuine a forged [document or electronic record].— Whoever fraudulently or dishonestly uses as genuine any which he knows or has reason to believe to be a forged, shall be punished in the same manner as if he had forged such.

Ingredients of Section 471 IPC

The following are the ingredients of Section 471 of IPC, 1860 –

• The document or electronic record is a forged one, wherein such forgery is done dishonestly or fraudulently to gain pecuniary or non-pecuniary benefit.
• The accused made use of the forged document or electronic record as a genuine one.
• The accused knew or had a reason to believe that such document or electronic record is a forged one.
• The accused made use of the said document or electronic record in spite of knowing it to be a forged one.  

Whether an offence under Section 471 IPC is bailable or non-bailable?

As discussed earlier, the offences under IPC are classified into bailable and non-bailable offences. Any individual who commits an offence under Section 471 of the IPC shall have the right to get bail, i.e., it is a bailable offence.

Cognizance of Section 471 IPC

If any individual commits an offence under Section 471 of IPC then they will be arrested by the police without requiring a warrant and they shall be presented before the Magistrate within 24 hours by the police. Thus, it can be understood that an offence committed under Section 471 of the IPC is a cognizable offence.

Punishment under Section 471 IPC

The offence under Section 471 is cognizable, bailable, and non-compoundable. It may be tried by a First Class Judicial Magistrate. If the forgery is of a promissory note of Central Government, it is cognizable.

OFFENCE	PUNISHMENT	COGNIZANCE	BAIL	TRIABLE BY
Using as genuine a forged document which is known to be forged	Same as for Forgery of such document	Cognizable	Bailable	First class Judicial Magistrate
When the forged document is a promissory note of the Central Government	Same as for Forgery of such document	Cognizable	Bailable	First class Judicial Magistrate

Case laws dealing with Section 471 IPC

M. Fazal llahi v. Mohan Lal and Ors., 1922 – In this case, the appellant, i.e., M. Fazal llahi in the High Court of Lahore applied for the sanction to the prosecution of the respondents, i.e., Mohan Lal and Others as per Section 471 of the IPC. It was observed that whenever and wherever any forged document or electronic record is used as a genuine one with a fraudulent or dishonest intent then an offence under Section 471 is committed. Such offence is cognizable, bailable, non-compoundable and triable by a first class Judicial Magistrate.

Jibrial Diwan v. State of Maharashtra, 1997 – In this case, certain letters were prepared by the accused on the letterhead of a minister wherein invitations were written to invite actors for a cultural show. However, those letters did not bear the signature of the minister. It was established that neither any wrongful gain nor wrongful loss was caused to anyone by the delivery of the letters. The Hon’ble Supreme Court ruled that the act was not done dishonestly and so the conviction of the accused under Section 471 of the IPC was not approved.

A.S. Krishnan v. State of Kerala, 2004 –  In this case, the father of a student forged the marksheet of his son in order to secure admission in a medical course. However, the total marks in the forged marksheet contained more marks than that which a student could score even if he secured one hundred per cent marks. The material on record clearly contradicted the plea of innocence. The marksheet in question was purported to have been drawn up by the father after revaluation, however, it indicated the same date of seal as that of the original marksheet. Thus, the plea that the student and his father did not know the marksheet to be forged was not maintainable. The Hon’ble Supreme Court held that the accused were liable to be convicted under Section 471 of IPC as they did not just possess the knowledge that the marksheet was forged but also had a reason to believe that the said marksheet was forged before they used it.

Ibrahim and Ors v. State of Bihar and Anr., 2009 – In this case, the first accused who had no connection with a piece of land and who had no title thereto, had executed two registered sale deeds dated 2.6.2003 in favour of the second accused dishonestly and fraudulently. It was held that a person is said to have made a false document in the following circumstances –

• If he has made or executed a document claiming to be someone else.
• If he has altered or tampered with the document.
• If he has practised deception to obtain a certain document or has obtained such document from an individual who is not in control of his senses.

Sheila Sebastian v. R. Jawaharaj, 2018  – In this case, the complainant alleged that the accused with the assistance of an imposter impersonating as Mrs. Doris Victor procured a Power of Attorney in his name as if he were her agent. It was also stated that the accused, by making use of the aforementioned Power of Attorney attempted to transfer the property of the complainant with the help of a mortgage deed. After hearing the matter, the Hon’ble Supreme Court held that the offence of forgery under Section 471 of IPC cannot be imposed on someone who has not committed it. The Apex Court further held that only when the components of Section 463 are satisfied an individual can be held liable for forgery.

Conclusion

The offence of forgery can be considered as a white-collar crime that involves the creation of a false document or an electronic record or any other legal instrument with a malafide intent to defraud an individual.  Further, Section 467 of the IPC talks about the forgery of valuable security, wills, any document that enables an individual to adopt a son, or to transfer any valuable security, or to receive or deliver money or any property whether movable or immovable, or valuable security, or any such legal instrument which appears to be receipt of money acknowledging the payment, or any receipt acknowledging the delivery of movable property or valuable security.

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