Forgery

Introduction

Forgery came from the Latin word “fabricare”, or “fabricate.” In simple words forgery means “an act of forging” or something which has been forged, especially a crime of falsely and fraudulently making or altering a document.
The crime of forgery has been practiced since ancient times in every country where writing existed and paper was used for financial transactions. Laws against forgery can be traced to 80 BC when the Romans prohibited the falsification of documents that transferred land to heirs.
Forgery is a white-collar crime that generally refers to the false making or material alteration of a legal instrument with the specific intent to defraud.

Laws related to Forgery in India

In India, the laws related to forgery are primarily governed by the Indian Penal Code (IPC).The IPC outlines various offenses related to forgery contained in Chapter XVIII of the Indian Penal Code, 1860 (IPC) defines the offence of Forgery. Section (463 to 477-A) deals with cases of forgery of documents or electronic records.
Bhartiya Nyay Sanhita, 2023 has replaced the Indian Penal Code, 1860 but similar provisions related to forgery are incorporated in the new Act. Chapter XVIII which spans from Sections 335-350 deals with forgery.
As per Section 463 of the Indian Penal Code, 1860; Section 336 of the Bhartiya Nyay Sanhita, 2023:

Whoever makes any false document or false electronic record or part of a document or electronic record, 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.

In simple words forgery is an act of creating a false document or part of a false document with the intent to harm the public or any individual, to support a claim or title, to coerce someone into giving up property, to enter into an express or implied contract, or with the knowledge that fraud may be committed. Therefore, a person when he makes any false document or electronic record with the criminal intention to:

i. Cause injury or damage to the other person or public

ii. Cause any person part with the property

iii. Enter into any express or implied contract

iv. Support any claim or title

v. Commit or may commit any fraud

then that person will be liable for the offence of forgery under Section 463 of IPC.

Elements to constitute the offence of Forgery

In the renowned case of Sham Sunder v. State of Haryana[1], the court delineated the essential elements of the offense of forgery as defined under Section 463 of the IPC/ Section 336 of the BNS. These elements include:

1. The making of a false document or a part of it: The accused must have made or altered a document, or caused it to be made or altered.

Section 464 of the IPC/ Section 335 of the BNS further elaborates the meaning of making a false document. A person is said to make a false document if he/she makes, signs, seals, or executes a document or electronic record with fraudulent intent, or alters such documents without lawful authority. It also includes acts causing someone to sign or alter a document or electronic record through deception or when they are incapable of understanding its contents due to unsoundness of mind or intoxication.

In the case of Sheila Sebastian v. R.J. Jawahraj[2], the Supreme Court of India discussed Sections 463 and 464 of the IPC. Section 463 defines the offense of forgery, whereas Section 464 provides a detailed explanation of when a false document or electronic record can be considered to have been created for committing forgery under Section 463.

Section 464 focuses specifically on the creation of false documents, which is a key element of the forgery offense. The court clarified that a charge of forgery cannot be applied to someone who is not the creator of the false document in question. This means that to be charged with forgery, the individual must be directly involved in the making of the false document or electronic record.

2. Such making should be with dishonest or fraudulent intent: The false document must have been made with a dishonest or fraudulent intention (mens rea), which is crucial to constituting the offense of forgery.

3. Intention to Cause Damage or Injury: The accused must have made the false document with the 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 the intent to commit fraud or that fraud may be committed.

In the case of Md. Ibrahim and Others v. State of Bihar and Another[3], the court listed down some essential points related to forgery.

The Supreme Court of India analyzed the evidence and the elements of forgery as defined under the IPC. The court emphasized that for an act to constitute forgery, the following elements must be proven: The document in question must be false; There must be an intention to cause damage or injury to the public or 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 the intent to commit fraud.

The case reinforced the importance of intent in establishing the offense of forgery and provided clarity on the legal interpretation of making a false document.

This case is significant as it underscores the legal principles surrounding forgery, particularly the necessity of proving intent to deceive and the creation of a false document. It also illustrates the judicial approach in dealing with complex forgery cases, ensuring that justice is served by upholding the integrity of legal documents and transactions.

Types of Forgery

Forgery can take many forms, including but not limited to:

1. Forgery of Record of Court or of Public Register, etc.

Section 466 of IPC/ Section 337 of the BNS deals with the forgery of records of court or of any public register etc.
Whoever forges a document or electronic record, claiming it to be a record or proceeding of a Court of Justice, or a register of birth, baptism, marriage, or burial, or a register maintained by a public servant in their official capacity, or a certificate purportedly issued by a public servant in their official capacity, or an authorization to commence or defend a lawsuit, or to undertake any legal proceedings therein, or to confess judgment, or a power of attorney, shall be subject to imprisonment for a term extending up to seven years, and shall also be liable to fine.

2. Forgery of Valuable Security, will etc.

Section 467 of IPC/ Section 338 of the BNS deals with the forgery of valuable security, will etc.
This provision states that anyone who forges a document claiming to be a valuable security, a will, an authorization to adopt a son, or giving authority to someone to create or transfer any valuable security, or to receive principal, interest, dividends, money, movable property, or valuable security, or any document claiming to be a receipt acknowledging payment of money, or receipt for the delivery of movable property or valuable security, shall face punishment. This punishment may include life imprisonment or imprisonment extending up to ten years, and also a fine.

3. Forgery for the Purpose of Cheating

Section 468 of IPC / Section 336(3) of the BNS deals with forgery for the purpose of cheating.
This provision states that anyone who commits forgery with the intention that the forged document or electronic record will be used for cheating purposes shall be punished. The punishment can include imprisonment for a term extending up to seven years, along with a fine.

4. Forgery for Purpose of Harming Reputation

Section 469 of IPC / Section 336(4) of the BNS deals with forgery for the purpose of harming reputation.
This provision states that anyone who commits forgery with the intention that the forged document or electronic record will harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished. The punishment can include imprisonment for a term extending up to three years, along with a fine.

5. Forged document

As per Section 470 of the IPC/ Section 340 of the BNS, a document or electronic record that is wholly or partly fabricated through forgery is classified as a forged document or electronic record.

Punishment for Forgery in India

In India, the punishment for forgery is governed by Section 465 of the IPC/ Section 336(2) of the BNS. According to this section, whoever commits forgery is liable to be punished with imprisonment of either description for a term that may extend to two years, or with a fine, or with both. The offence is non-cognizable, bailable, triable by Magistrate of the first class and Non-compoundable.

Conclusion

Forgery is a crime that can severely impact individuals, businesses, and institutions. Laws such as those in the Indian Penal Code are crucial in deterring such offenses and maintaining trust and authenticity in legal and financial transactions. Forgery is one of the most common crimes performed in the modern world. Such crimes are frequently committed by an individual or group of people, which need to be stopped. Thus with the changing society, new legal reforms, is an important step towards a more secure legal system in India.

[1] AIR 1989 SC 1982.

[2] AIR 2018 SC 2434.

[3] (2009) 8 SCC 751.