Forgery and property marks

1. Document and electronic record

A document (s.2(8)) is any matter expressed or described on any substance by letters, figures or marks, and now expressly includes electronic and digital records, intended to be used or which may be used as evidence of that matter. A cheque, a contract in writing and a power of attorney are documents. Throughout Chapter XVIII the BNS adds “electronic record” and “electronic signature” to the IPC text, so the same law applies to a forged e-mail or a falsified digital register.

2. Making a false document: section 335

A person makes a false document or false electronic record (old s.464 IPC) in three ways:

• (A) False authorship. He dishonestly or fraudulently makes, signs, seals or executes a document, makes or transmits an electronic record, affixes an electronic signature, or makes a mark denoting execution, with the intention of causing it to be believed that it was made or authorised by a person by whom, or by whose authority, he knows it was not made.
• (B) Unauthorised alteration. Without lawful authority, dishonestly or fraudulently, he alters a document or electronic record in a material part after it has been made, whether by himself or another, living or dead.
• (C) Procured execution. He dishonestly or fraudulently causes a person to sign, seal, execute or alter a document, knowing that the person cannot understand it because of unsoundness of mind or intoxication, or does not know its contents because of deception.

Illustrations: adding a cipher to turn 10,000 into 1,00,000 in a letter of credit (A); filling a blank signed cheque for more than the authorised sum (B fills in 20,000 when authorised up to 10,000); scratching a legatee's name out of a will (alteration); writing a different legatee into a will dictated by Z and getting Z to sign it (procured execution).

The Explanations add that signing one's own name may be forgery, if the intention is to make it appear that another person of the same name signed (Explanation 1), and that a document in the name of a fictitious or deceased person may be false (Explanation 2). Antedating a deed to defeat a creditor or a prior purchaser is making a false document even though the maker signs in his own name.

3. Mohd. Ibrahim: the limits of “false document”

In Md. Ibrahim v. State of Bihar, 2009 INSC 1110, (2009) 8 SCC 751, the first accused executed sale deeds in favour of the second accused for land that, according to the complainant, belonged to the complainant. He was charged with forgery under ss.467 and 471 IPC and with cheating. The Court quashed those charges. It explained that a person makes a false document only in the three categories above: where he executes a document claiming to be someone else or authorised by someone else; where he alters a document; or where he obtains a signature by deception or from an incapable person. A person who executes a sale deed in his own name, claiming the land is his, does not make a false document, even if his title is false. The remedy, if any, lies in a civil suit; and cheating failed because the complainant was not the person deceived.

The same reasoning was applied in Sheila Sebastian v. R. Jawaharaj, 2018 INSC 494, (2018) 7 SCC 581, where an impostor posed as the owner and executed a power of attorney in favour of the accused. The Court held that the accused, who was not the maker of the false document, could not be convicted of forgery itself, though other offences might have been charged.

4. Forgery: section 336

Whoever makes a false document or electronic record, or part of one, with intent:

• to cause damage or injury to the public or any person;
• to support any claim or title;
• to cause any person to part with property;
• to cause any person to enter into an express or implied contract; or
• to commit fraud, or that fraud may be committed,

commits forgery (old s.463). Simple forgery is punishable with up to two years (s.336(2), old s.465); forgery for the purpose of cheating with up to seven years (s.336(3), old s.468); and forgery to harm reputation with up to three years (s.336(4), old s.469).

5. Aggravated forms and use

• s.337 (old s.466): forgery of a court record, a public register of birth, marriage or burial, a certificate by a public servant, a power of attorney, or an identity document issued by Government including a voter identity card or Aadhaar card, up to seven years. The identity-document words are new.
• s.338 (old s.467): forgery of a valuable security, a will, an authority to adopt a son, or a receipt for money or property, imprisonment for life or up to ten years.
• s.339 (old s.474): possessing a document described in s.337 or s.338, knowing it to be forged and intending to use it as genuine.
• s.340 (old ss.470 and 471): a false document made by forgery is a forged document; fraudulently or dishonestly using as genuine a document known or believed to be forged is punished as if the user had forged it.
• ss.341 and 342 (old ss.472 to 476): counterfeit seals, plates and authenticating marks.
• s.343 (old s.477): fraudulently cancelling, destroying or secreting a will, authority to adopt or valuable security.
• s.344 (old s.477A): falsification of accounts by a clerk, officer or servant, wilfully and with intent to defraud, up to seven years. A general intent to defraud is enough; no particular victim or sum need be named.

6. Property marks: sections 345 to 350

A property mark is a mark used to denote that movable property belongs to a particular person (s.345(1), old s.479), such as the brand on cattle or the owner's mark on sacks. Using a false property mark, in a manner reasonably calculated to make people believe that goods belong to someone they do not belong to, is punishable with up to one year unless the accused proves he acted without intent to defraud (s.345(2) and (3)). Related offences: tampering with a property mark to cause injury (s.346, old s.489), counterfeiting a property mark used by another or by a public servant (s.347, old ss.483 and 484), making or possessing instruments for counterfeiting (s.348, old s.485), selling goods with a counterfeit mark (s.349, old s.486, with a defence for an innocent seller who took reasonable precautions and discloses his source), and making a false mark on a receptacle (s.350, old ss.487 and 488). Trade marks are now left to the Trade Marks Act, 1999.

7. Problem

A borrows money from B against a promissory note. Later A brings B a paper to sign, telling him it is a receipt for a part-payment. In fact the paper is a release of the whole debt. B, who cannot read English, signs.

Issue. Whether A made a false document and committed forgery.

Law. Section 335(C) covers a person who dishonestly or fraudulently causes another to sign a document, knowing that, because of deception practised on him, he does not know its contents. Forgery under s.336 needs one of the listed intents.

Application. B signed, but did not know what he was signing because of A's deception. A acted dishonestly, intending wrongful gain by escaping the debt. The release is a document by which B is made to give up a claim, and A intended it to support his claim that the debt was discharged.

Conclusion. A has made a false document under s.335(C) and committed forgery under s.336. If he relies on the release in court he also uses a forged document under s.340(2). His conduct is cheating under s.318 as well, so forgery for the purpose of cheating under s.336(3) is the proper charge.

How this is examined

The 10-mark form is “Define forgery. When does a person make a false document?” Answer with s.335 in its three limbs and two illustrations each, the Explanations on one's own name and fictitious persons, s.336 and its purposes, then Mohd. Ibrahim and Sheila Sebastian. Falsification of accounts (s.344) and property marks are short-note topics.