INTRODUCTION: In day-to-day course, the courts in India come in contact with the different questions involving a document. And the courts found different situations, one in which the document produced is a fake document, not having any legal sanctity and is not issued by any competent authority but the accused has made it on its own by some means and the other one is, the document which was produced is issued by a competent authority but with false information in it. Hence, this question became really tricky in some cases and on certain grounds the accused gets acquitted. The very basic example should issuance of a Birth certificate with a trend of falsely mentioning of Date of Birth. Indeed, it would be a misrepresentation and a false document, but the certificate has legal sanctity. And in some cases, it was also seen that the document which was issued by a competent authority was after the issuance by some means was altered, for example changing a photograph in a bank entry copy and then producing the same for some other purpose. These all are part of the offence of forgery.

BODY

Section 29 of the IPC defines ‘Document’—The word ‘document’ denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

Illustrations

• A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.
• A cheque upon a banker is a document.

Section 3 of the INDIAN EVIDENCE ACT,1872 defines document as, “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.”

Forgery in general terms means to illegally modify or reproduce a document, unlawfully alter or duplicate a text, signature, instrument, legal tender or some other means of storing material. Any material which is copied is often considered to be forged.

Section 463 in the IPC deals with the definition of Forgery.

—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.

Making of a false document is the soul of forgery. So, the question thus arises, what a false document is. In a major judgement the Supreme Court had put down a ground for the determining a false document.

In 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.

The ingredient of Section 471 IPC is that there should be forgery, as defined under Section 463 IPC, and forgery in terms depends upon creation of false documents, as defined under Section 464 IPC. As there is no false document, then offence under Section 468, 471 IPC is not made out.

Section 471 deals with the question that the person who didn’t committed forgery but knows or has reason to believe that the document is forged and still uses that document as a genuine one.

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

The section clearly states that even only for using a forged document intendedly shall be treated as similar as if the person has done the offence of forgery and shall be punished correspondingly.

The punishment for forgery is defined in Section 465 in the IPC:

Punishment for forgery—Who ever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

As according to the section 471 IPC, person even only for using a forged document intendedly shall be punished as according the relevant section prescribing the punishment for the offence of forgery such as Section 465 IPC. There are different sections in IPC dealing with the definition and punishment of the offence of forgery as per the intentions of the offender e.g. if a person has committed offence of forgery for cheating Section 468 IPC shall be applied with other relevant sections.  

In various cases Ld Court has observed and said certain statements which may contradict with the above-mentioned submission, but they are as according to the facts and circumstances of the cases.

In the case of Smt Rupa Bania v. State of Assam 2006 CriLJ 3455

The Gauhati High Court laid down that while considering the question that no evidence is there to prove that the accused had herself forged the documents, it is pertinent to note that to constitute an offence under Section 471 of IPC, prosecution must prove the following ingredients:

i) That the document was forged one.

ii) That the accused person used such document fraudulently or dishonestly.

iii) That the accused used the document, in question, as a genuine one.

iv) That the accused knew or had reason to believe that it was a forged document.

  In the face of the above proven facts, the Court mentioned that the accused-petitioner however presented that forged documents and in the face of such facts, the conviction of the accused-petitioner under Section 471 of IPC cannot be held to have suffered from any illegality, impropriety and/or incorrectness. Therefore, keeping in mind the ingredients and the judgment given in the above case we can say that if the accused though forged the document in question or not if presents  the forged documents for  his benefit fraudulently or dishonestly even after knowing the fact that the documents he is presenting is the forged one can be convicted of offence under section 471 IPC.

In the case of S.V. Rama Rao v. Unknown AIR 1967 Mys 59 the question raised that if a person is already charged with the offence of forgery can he still be charged with the offence under section 471 IPC. The Karnataka High Court held that: –

Section 471 covers not only some person other than a forger but also a forger who forges the document and then makes use of it. The forger is not excluded from the operation of Section 471 Indian Penal Code.

In the case of Mir Nagvi Askari v. C.B.I (2009) 15 SCC 643 the Supreme Court held that a person is said to obtain a false document or record if he satisfies one of the three conditions as mentioned herein before and provided for under the said section:

The supreme court held that the document has been falsified with the intention of making it be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly, the document in question in the present case, even it to be believed that they were made by or under the authorization of someone else.

The second criteria of the section deal with a case where a person without legal authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion, this principle of the said section is also not applicable to the present case.

The third and final condition of the section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the document which were made i.e. because of intoxication or unsoundness of mind etc. such is also not the case before us. Therefore, the accused before us could not have been convicted with the making of a false document.

In the case of Sheila Sebastian v. R. Jawaharaj (2018)SC 265 Supreme Court, ruled that the command of forgery cannot be imposed on a person who is not a maker of the same. The court also held that until and unless the components of Section.463 are satisfied an individual can’t be convicted under section 465 by solely relying upon the ingredients of S.464, as an offence of forgery will remain incomplete.

The offence in 471 IPC has not to deal with the issue that if loss has been caused or not, but the courts take a lenient view when the loss/harm was not caused, or when the intention was not to cause a grievant loss.

In the case of Manilal Girdharilal Shah v. State of Gujarat AIR 1979 SC 1343

S. Murtaza Fazal Ali, J.— In this appeal by special leave the appellant has been convicted under Section 471 and sentenced to one year’s rigorous imprisonment and a fine of Rs 1000. Mr V.S Desai has pressed this appeal on the question of sentence only. It appears from the record that the appellant has served more than two months in jail. From the facts found by the courts below it also appears that although a forged Bank Guarantee Bond was filed by the appellant before the Public Works Department but as soon as the forgery was detected the appellant immediately withdrew the bond and paid one lakh and forty-three thousand rupees by way of fixed deposit receipts. Thus, even if the appellant had used forged documents, no loss has been caused to anybody. In this view of the matter we are inclined to take a lenient view of the matter. We, therefore, while upholding the conviction of the appellant reduce the sentence of imprisonment to the period already served and for the balance of the sentence remitted, we impose an additional fine of Rs 4000. Thus, the total fine imposed is Rs 5000, in default six months’ rigorous imprisonment, with this modification, the appeal is dismissed.

CONCLUSION

In the light of the above submissions, it is very clear that offence of forgery can only be charged to a person who actually committed the offence in the meaning of section 463 IPC, but  offence of producing a forged document intendedly as described in section 471 IPC shall also be dealt with as not less than forgery and offender shall be punished in correspondence to forgery. The soul of the offence defined in 471 IPC is forgery despite the fact who has committed the act of forgery, hence to charge a person with 471 IPC the very basic thing is that the document in question must be a forged document in the meaning of section 463 IPC and is produced by the offender even after knowing or has a reason to believe that the document is forged and making of a false document is defined in the section 464 IPC. If the document in question is not proved to be a forged one the offence under section 471 IPC cannot be made out. And even if the person who himself forged a document i.e. he is a forgeror, and already charged with forgery under section 463 IPC, if he produces the document so forged by himself, he can also be charged with the section 471 IPC without any contention that he was already charged with the offence of forgery.    

WEB REFERRENCES

• www.sconline.com
• www.casemine.com
• nicfs.gov.nic
• www.lawinsiders.com

LAW REFFERRED

• THE EVIDENCE ACT ,1872
• THE INDIAN PENAL CODE, 1860

CASES REFFERED

• Md. Ibrahim & Ors V/s State of Bihar & Anr, (2009) 8 SCC 751
• Smt Rupa Bania v. State Of Assam 2006 CriLJ 3455
• S.V. Rama Rao v. Unknown AIR 1967 Mys 59
• Mir Nagvi Askari v. C.B.I (2009) 15 SCC 643
• Sheila Sebastian v. R. Jawaharaj (2018) SC 265
• Manilal Girdharilal Shah v. State of Gujarat AIR 1979 SC 1343