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Report No. 42

Chapter 18

Offences Relating to Documents and to Property Marks

18.1. Sections 463 and 464 analysed.-

The offence of forgery is defined in sections 463 and 464. The two sections have to be read and construed together for deciding whether a person has committed the offence. The actus reus is making a false document, and the mens rea, under the first section may be any one of the following.-

(i) intent to cause damage or injury to the public or to any person;

(ii) intent to support any claim or title;

(iii) intent to cause any person to part with property;

(iv) intent to cause any person to enter into a contract;

(v) intent to commit fraud;

(vi) intent that fraud may be committed.

The actus reus, which is indicated in bare outline in that section by the words "makes a false document" is described elaborately under three heads in section 464. Practically every conceivable way of preparing a false document or of falsifying a genuine document is covered in this description. But, not content with being comprehensive as to the nature and method of falsification, the section requires in each of the three heads a culpable state of mind (either dishonesty or fraud) to accompany the physical making of the false document.

When one remembers that mere making of a false document is not punishable as such under this Chapter, it is difficult to find any cogent reason why the mental element is first given under two broad heads ("dishonestly or fraudulently") with reference to the making of the false document, and then under six heads (in section 463) with reference to the complete offence of forgery.

18.2. Definition of "forgery" in the English Act.-

The position in England where the offence of forgery stands codified in the Forgery Act of 1913 is very much simpler. By sub-section (1) of section 1 of this Act, "forgery is the making of a false document in order that it may be used as genuine., and forgery with intent to defraud or deceive, as the case may be, is punishable as in this Act provided". Sub-section (2) of the same section sets out in detail (more or less on the same lines as section 464 of our Code),the circumstances in which a document will be considered to be false or to have been made false, but it does not again bring in the mental element. Thus, the English definition amounts to stating that whoever dishonestly or fraudulently makes a false document in order that it may be used as genuine commits forgery.

18.3. Mental element of the offence.-

We consider that sections 463 and 464 could be easily combined and simplified giving a clearer definition of the offence of committing forgery. The duplication of the mental element which is patent and unnecessary should be removed. When one analyses the six "intents" specified in section 463, it is clear that all of them, except perhaps the last, are covered by the "dishonestly or fraudulently" formula repeated three times in section 464; the mental element of the offence would, it seems to us, be sufficiently specified by the words "dishonestly or fraudulently or with intent that fraud may be committed on the public or on any person". It may be recalled that under the revised definition of "fraudulently" proposed by us in Chapter 2, the intention to deceive another and by that deceit to cause injury to any person or to induce any person to act to his disadvantage is covered by that word.

18.4. The culpable act.-

As regards the act required for the offence, the description given in section 464 requires little modification. Under the first clause, a person makes a false document if he makes it appear that the document was made "at a time at which he knows that it was not made", it being understood, of course, that the time of making the document is material for the object in view. The place of making a document may be just as material as the time and it should be forgery if this detail is somehow falsified. We, therefore, propose that the first clause should refer to "place" as well as "time" but expressly qualify both by adding "when the time or place is material".1

In the second clause of section 464, it seems desirable to mention "addition" and "obliteration" besides "cancellation".

1. Cf. section 1(2) of the (UK) Forgery Act, 1913.

18.5. Illustrations unnecessary.-

As many as 17 illustrations are appended to the section. It is doubtful whether any of them is really required to elucidate any obscure point in the definition. In fact, they seem to be stating the obvious and we suggest that they could be omitted in the revision.

18.6. Sections 463 and 46.-combined and revised.-

The two sections may accordingly be combined and revised as follows.-

"463. Forgery.- A person is said to commit forgery who, dishonestly or fraudulently or with intent that fraud may be committed on the public or on any person.-

(a) makes, signs or executes a document or part of document with the intention of causing it to be believed that such document or part of a document was made, signed or executed

(i) by, or by the authority of, a person by whom, or by whose authority, lie knows that it was not made, signed of executed, or

(ii) (when the time or place is material) at a time or place at which he knows that it was not made, signed or executed; or

(b) by cancellation, addition, obliteration or otherwise, alters a document in any material part thereof, after it has been made, signed or executed either by him self or by any other person, whether such person be living or dead at the time of such alteration; or

(c) causes any person to sign, execute or alter a document, knowing that such person, by reason of unsoundness of mind or intoxication cannot, or by reason of deception practised upon him does not, know the contents of the document or the nature of the alteration.

Explanation.- (1) In this section, "execute" includes sealing and making any mark denoting execution of a document.

(2) A man's signature of his own name may amount to forgery.

(3) The making of a document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his life-time, may amount to forgery".

18.7. Section 465.-

Section 465 prescribes the punishment for the offence of forgery. The maximum period of imprisonment now provided is two years. We propose to increase it to three years, having regard to the gravity of the offence.

18.8. Sections 466 and 46.-Amendment regarding punishment.-

Section 466 deals with forgery of Court records, public registers etc., and section 467 with forgery of valuable securities, Wills etc. These types of forgery are rightly considered aggravated forms of the offence and visited with higher punishment. However, the imprisonment for life provided in section 467 for forgery of valuable securities appears to be too harsh.

On the other hand, the maximum punishment of seven years prescribed in section 466 for forging a Court record or a public register appears to be too light, when compared with the life imprisonment or imprisonment for 10 years provided in section 467 for forging a valuable security. We are of the view that the two equally grave offences should be treated alike, and a maximum imprisonment of 10 years should be provided for both. The proposed punishment being common to both sections, they may be combined into one section.

18.9. "Authority to adopt" to be omitted.-

We are also of the view that "the authority to adopt a son" now mentioned alongwith valuable security in section 467 may be omitted, as the legal importance of an authority to adopt is no longer what it was under the uncodifided Hindu law.

18.10. "Purporting to be".-

Another point that requires to be considered regarding sections 466 and 467 is the use therein of the words "a document purporting to be". Apparently, these words have been employed by the Legislature to cover a document which does not possess legal validity qua a document of the enumerated type, though it "purports" to be such a document. The question whether the document possesses such legal validity is immaterial and what is material is what character the writing attempts to put on. But this attempt at subtlety may create its own problems.

For example, when a person forges a document.-e.g., a public register containing a few thousand entries.-is he forging "a document which purports to be a public register", or is he merely forging "a document which is a public register"? Since the rationale of sections 466 and 467 seems to be that tampering with public registers, Court records, valuable securities etc. should be considered aggravated forms of the offence of forgery, we feel that, in the interests of clarity, the words "a document purporting to be" should be replaced by the words "in respect of a document which is or purports to be", which will be wide enough to cover valid documents as well as documents whose validity (in the sense discussed above) is doubtful.

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