Forgery as Distinct Crime and its Development

I. Introduction

Forgery negates the notion that most crimes are ancient crimes. Forgery is regarded as quite a modern offence; most mythological stories and tales had fierce robbers who used to loot queens & princesses travelling from one place to another place on the tip of swords. Forgery is also a kind of theft, but instead of a violent crime, it can be considered an art. The article traces the history of forgery as a distinct crime from falsification of documents and coinage, its inclusion in common law and its development in India. The purpose of this article is also to know how flexible the crime of forgery is?

II. History of Forgery

In ancient society, most crimes were physical crimes, and the laws were made to prevent those crimes. The era of documents came when the testamentary wills & documents were issued for the proof of holding property which led to the creation of false documents with an intent to prove ownership on other’s land.

The history of forging documents begins with the enactment of ‘lex Cornelia de falsis²’ in Rome. It was a law that dealt with the falsification of documents and coinage in 81 B.C. This was the beginning of the act of forgery, but at that time, it was not as broad as it stands today. The act of coining started when Julius Caesar broke the republican rule of abstaining from public display of images of living men and enforced provisions to mint coins bearing his head, this led criminals to mint false coins. At that time, Emperors were considered to be of divine authority³ , which made the crime of making the false coin a very serious offence. This made treason, forgery and coinage offences more or less the same.

As emperors were considered to be of divine authority, one can sense the grave nature of the offence which lowered their authority. Then came the two types of charters – Carta Regia and Carta private. The Carta Regia referred to royal charter while Carta private referred to private charter. Again, since royal charters were issued by the emperors, making false royal charters amounted to treason. Basically, when writs were forged, if they pertained to public interests, they were kept in the category of “ugly” treason whose punishment was death sentence while for the writs or private documents which didn’t impact a mass at large and were only concerned with the private affairs was dubbed as “petty” and fines were the remedies to it. But forgery was not a distinct crime per se and was included in different categories of treason.

III. How forgery came to common law

From the historical account, one can infer that

forgery was a species of treason, and this should not be a very uncommon phenomenon because, practically, there was no need for the distinction. If you can listen to music, watch movies and call someone using your smartphone, then why would you need a music player and V.R. set. Since at that time, the use of documents was so limited, and the prevalent crime was forging coins which may seem ridiculous just because of the king being considered of divine origin, but the other way round was to consider the impact of forging coins which has potential to upset the economic balance of that particular kingdom.

With statute 1 of Henry the V⁴, for the very first time, he introduced the concept of granting civil remedies to the persons who suffered a loss due to the forging of documents concerning manors, lands or tenements. The law was stiffened and expanded in 1562 by Elizabeth⁵’s act. The act’s preamble spoke of the forging of "false and untrue Charters, Evidence, Deeds and Writings". But in the writings of Coke, there was no indication of the fact whether forgery was included in common law or not.

In 1727, One John Ward John Ward was charged with forgery of a simple unsealed certificate for the delivery of goods by making a false entry purporting to be a variation signed by the Duke of Buckingham. Declaring that the use of the word "writings" in the preamble to the Statute of Elizabeth recognized that forging of writing not sealed "came within all the mischief of forging a deed" and was punishable by law before that statute, the Court⁶ held that the offence was indictable as a forgery at common law.

IV. Forgery In India

IPC deals with the offences relating to documents and to property marks under Chapter XVIII. Section 463 of the IPC⁷ defines forgery as

“Whoever makes any false documents 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.”

Notice the word false electronic record; it isn’t a very ancient concept and was introduced in India by the I.T. Act 2000⁸. It was substituted in IPC by section 91 of the I.T. Act 2000⁹.

“S.91 - Amendment of Act 45 of 1860. -The Indian Penal Code shall be amended in the manner specified in the First Schedule to this act.”

In IPC, there are various types of purposes mentioned for which forgery can be committed; how these purposes developed over time will be seen through the case laws in India.

V. Forgery for the purpose of property, children & will

Forgery was mostly done for the purposes of obtaining property¹⁰ & matters related to adoption¹¹. This was done through forging documents of wills, signatures¹², and negotiable instruments.¹³

In the rare case of Empress of India v Mulla¹⁴, the accused planned to plot revenge on the complainant. For this purpose, he made another person impersonate the complainant and obtain a stamp paper; under the impression that the person impersonating the complainant was the actual complainant, the vendor made the usual endorsement on stamp paper.

It was held that

“Inasmuch as the intention of the accused was to use the falsely endorsed stamp paper in a judicial proceeding, he was guilty of the offence of fabricating false evidence, and the other person was guilty of abetting the same.”

In yet another particular case¹⁵ of 1835, forgery was committed with the purpose to file conflicting petitions in an appeal court from the Sadar Dewani Adalat of Bengal.

During this time period, a very interesting question of law was dealt with by the High Court of Allahabad in the case of Queen-Empress vs Sheo Dayal¹⁶. The defendant used to live in a rented property; the proprietors of that property outset him from there. To recover the occupancy of the land, he applied in the revenue courts, and since the receipts of payment were lost, he forged those receipts. The Sessions Court observed that:

“It amounts to forgery if the false document is made with intent to support any claim or title. 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.”

When the matter was appealed in the H.C. of Allahabad, the judge held that the sessions court had overlooked s.464 of the Penal Code, which says “to constitute the offence of forgery, the intention must be dishonest and fraudulent”, which was absent in this case and quashed the ruling of the sessions court.

VI. Interpretation of Section 463

In a case¹⁷ of 1904, whose facts run as follows:

“A Range Forest Officer was charged with having “misappropriated Rs. 21-6-9 by drawing the pay of one Sonu Copal, a fictitious person, with having prepared false bills, forged his name, and used as genuine forged documents known to be so, and falsified the accounts.”

The sessions court convicted the accused of forgery, but on an appeal, the matter was contested before the H.C. of Bombay and the possibility of a conspiracy was furthered since the amount was very insignificant and the appellant had served for 18 years.

The prosecution alleged that there was no Sonu Copal, while the defence successfully established that there existed a Sonu Gopal, who was employed by the defendant and used to draw a salary. A possibility arose at this stage that the pay bills were only vouchers, and it was used to screen the offender after the offences had been committed. Therefore, the Court held that:

“The intention, therefore required to be established by section 463 of the Penal Code, 1860, in order to constitute forgery, does not seem to have been made out. The damage had been already caused, and fraud had already been committed, and therefore it cannot be said that the false document was prepared with such intent as is described in section 463.”

During this time, a substantial amount of judicial interpretation was given to the specific sections of IPC because the purposes of committing forgery began to change. As narrated through a case above, the intent was to hatch a conspiracy against the public servant.

At that time, CrPC 1898¹⁸ was in force, Section 195¹⁹ of it read as:

“195. Prosecution for contempt of the lawful authority of public servants. - [(1) No Court shall take cognizance-

(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;

Prosecution for certain offences against public justice.

(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or

Prosecution for certain offences in relation to documents given in evidence.

(c) of any offence described in Section 463 or punishable under Sections 471, 475 and 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.].”

In the case of Sanjiv Ratanappa Ronad and another. Vs Emperor²⁰, the following issues were raised:

1. Whether “Section 195(1)(c) of the Criminal Procedure Code, 1898, has application when the document which is alleged to be forged is produced at the trial of the person alleged to have forged it, not having been produced in any independent proceeding?”

2. Whether “the element of injury or risk of injury to an individual or to the public is an essential ingredient in the definition of forgery in sections 463 and 464 of the Penal Code, 1860?”

3. Is it “sufficient enough to show that the deception was intended to secure an advantage to the deceiver?”

The facts of the case²¹ ran as there occurred a theft at a house of one Vekanna Purohit of Kolhar. The suspect fell upon some persons of the Kathbus tribe, which was a criminal tribe, and on 28^th June, the police arrested three Kathbus tribes and beat them up to accept their guilt. This forced one of the tribes to commit suicide & due to this incident, the other two were released and then they made a complaint to the superintendent of police and the district magistrate.

The accused sub-inspector was charged under sections 330 and 348 of the IPC; learning about this development, the S.I made false entries in the case diary to create evidence in favour of him. The prosecution alleged that the accused is now guilty of the offence of forgery under section 465 of the IPC²². It was contended that:

“that in view of the provisions of section 195(1)(c) of the Criminal Procedure Code²³, 1898, it was not open to the Sessions Court to take cognizance of the offence of forgery in the absence of a complaint from the Committing Magistrate in whose Court the diary alleged to have been forged was first produced.”

The Court held “that the document being produced in Court, not in connection with any other case, but in a prosecution founded upon it, no question of giving sanction by the Committing Magistrate under section 195(1)(c) could arise.”

It was further held that “The element of injury or risk of injury to an individual or to the public is an essential ingredient in the definition of forgery in sections 463 and 464 of the Penal Code, 1860. It is not enough to show that the deception was intended to secure an advantage to the deceiver.”

VII. forgery for the purpose of harming reputation

Reputation is also considered as a property as it

was held in Dixon v. Holden²⁴, which is one of the probable reasons for the inclusion of forgery for the purpose of harming reputation under the head “offences related to property”.

In 2016, Justice Dipak Misra reasoned²⁵ that the right to reputation is an integral part of article 19 and article 21 of the Indian Constitution. The Court held²⁶ that, though there exists freedom of speech and expression, it cannot be at the cost of injuring someone’s reputation. That is to say; there are certain reasonable restrictions on article 19.

Though these observations do not date much back in time, we cant say that the importance of reputation was the latest concept. The law commission report²⁷ of 1971 advised repealing sections 468 and 469 of the IPC relating to forgery for the purpose of defamation. The advice read as

“We do not think that these are particularly aggravated forms of the offence of forgery, and as we have already proposed a slight increase in the punishment for forgery517, we recommend that Ss. 468 and 469 should be omitted.”

In 1991, Publisher and Executive Editor of a vernacular magazine stood in the courtroom to save themselves from the charge under IPC S.469.

“With a photo of the then CM of Tamil Nadu, a letter said to be written by Natarajan, addressed to the complainant is embodied. No such letter was addressed to him or received by him. He is well acquainted with the signature of Natarajan. The signature in the said letter is not that of Natarajan. The letter and signature of Natarajan are forged. It is intended to harm his reputation. The contents of the article are scurrilous and defamatory of the Government and the Chief Minister and intended to mislead the public and prejudicial to the maintenance of harmony between different political parties and regional groups and likely to disturb the public tranquillity. Hence, he had requested action, according to law.”

This was the complaint made to the Inspector General of Police by the special assistant of the CM. The defendants argued for the FIR to be quashed on the grounds of truth and violation of fundamental rights. The Court ruled that prima facie, any news made on the forged document, is always liable for prosecution and cant infringe fundamental rights. The petition was dismissed. This was the case of R.R. Gopal alias Rajagopal and others vs Inspector of Police, CB CID, Madras.²⁸

The abovementioned case clearly shows the need for section 469.

VIII. Forging electronic records

The introduction of computer technology changed the definition of documents, signatures, records etc. Before computers, documents only meant papers that were stored in the cabinets of offices or homes. But as we know, with the advent of new technology, intelligent deviants figure out a way to invent a new method of committing crimes.

The cases regarding this provision witnessed a growth after 2010, in a case of Sandeep P. Jain vs the State of Maharashtra²⁹, “the applicant and said Khaled Kazi enrolled 11 members of the Cricket Club of India by committing forgery in the record of the computerized data in the process had introduced new software for the membership related affairs of the Cricket Club of India. While transferring the data in the new software, the accused Khaled Kazi has used unallotted membership numbers to members who were recorded by the commission of the offence.”

The Court observed that³⁰:

It appears that the law, as amended, contemplates and comprehends within the definition of forgery, making of the false electronic record with the intention to cause damage or injury to the public or any person or to support any claim, title etc.

The objective behind amending the definition of forgery is to comprehend a variety of acts is to widen its compass to include in it various acts such as alteration, insertion etc., in computerized records to amount to forgery.

The appeal was dismissed, and the punishment under the relevant sections was upheld by the Bombay Highcourt.

IX. Conclusion

The journey of forgery as a distinct crime is very interesting, and it took much time to get included in the common law, as evident from the case of R v. John Ward³¹. In India, forgery is defined in Chapter XVIII of the IPC, and it deals with many types of purposes to commit forgery. Forgery is a very flexible kind of crime, and it needs a medium for its commission, like documents, electronic records, receipts, bills etc. As we are developing, so do our means and mediums; for example, after the introduction of computers, we saw the concept of e documents and ultimately forging of these e documents. So we can say that forgery is a very flexible kind of crime, and with new means and mediums to be introduced in future, there will be a possibility of forgery of those mediums. But, one thing that will remain constant, as again and again reiterated by our courts, is ‘intent to defraud’, ‘dishonest intention’ & ‘intention to cause damage and injury.

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