Report No. 42

18.11. Sections 466 and 46.-combined and revised.-

Sections 466 and 467 may be combined and revised as follows.-

"466. Forgery of Court record, public register, will, valuable security, etc.-Whoever commits forgery in respect of a document which is, or purports to be

(i) a record or proceeding of or in a Court of Justice;

(ii) a register kept, or document made, by a public servant in his official capacity;

(iii) a register of birth, baptism, marriage or burial;

(iv) a Will;

(v) a valuable security;

(vi) an authority to make or transfer any valuable security;

(vii) an authority to receive or deliver any valuable security, movable property or money;

(viii) an acquittance or receipt for the delivery of any valuable security or movable property or for the payment of any money;

(ix) an authority to institute or defend any suit or to take any proceedings therein or to confess.judgment; or

(x) a power of attorney; shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

18.12. Sections 468 and 469 to be omitted.-

Sections 468 and 469 deal, respectively, with forgery for the purpose of cheating and forgery for the purpose of harming reputation; the punishment is seven years for the former offence, and three years for the latter. 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 forgery,1 we recommend that sections 468 and 469 should be omitted.

1. See para. 18.7, supra.

18.13. Section 470.-

Section 470 defines a "forged document" as "a false document made wholly or in part by forgery". This is defective, inasmuch as forgery is itself defined in section 463 as "making a false document" with the requisite intent, so that, when one reads section 470 and section 463 together, one meets the idea of "making a document" twice. Further, in view of the revised definition of "forgery" proposed above, a "forged document" could be defined as a document in respect of which, or any part of which, forgery has been committed. We propose that this revised definition be put in as section 464 thus.-

"464. Forged document.- A document in respect of which, or any part of which, forgery has been committed is a forged document."

18.14. Section 47.-conflict of decisions.-

Under section 471, whoever uses as genuine a forged document shall be punished in the same manner as if he had forged such document. The use of the words "in the same manner as if he had forged" has led to some conflict of decisions, regarding the question whether a person who has both forged the document and used it as genuine, can be punished for both the offences.

In Umrao Lal, 1900 ILR 23All 84 Aikman, J. of the Allahabad High Court sai.-

"The concluding words of this section lead me to believe that it is directed against some person other than a person proved to be the actual forger. The section is useful as an alternative charge when it is not certain whether the accused person is himself the forger of a document or has merely used it as genuine. But I cannot recollect a case in which the forger has been punished both for forging a document and for using it as genuine."

In the later case of Badri Prasad, 1912 ILR 35 All 63 Knox and Muhammad Rafiq, JJ. of the same High Court said they knew of no authority for the proposition that "the accused cannot be convicted at one and the same time of forging a document and using that document as genuine, and the charges under sections 467 and 471 must, therefore, be regarded as alternative". Apparently, Umrao Lal's3 case was not brought to their notice, nor did they go into the question in any detail.

In Sriramulu Naidu, 1928 ILR 52 Mad 532 however, Waller and Jackson, JJ. of the Madras High Court expressly disagreed with Aikman, J.'s view and sai.-

"All, it seems to us, that section 471 lays down is that the sentence that can be imposed for the offence of using a forged document as genuine is the same as the sentence that can be imposed for the offence of forgery. They are separate offences and, under section 35, Criminal Procedure Code, separate sentences may be passed on an accused person who has been convicted at the same trial of both."

In Gajanan Sakharam, AIR 1924 Nag 162 Hallifax, A.J.C., of Nagpur was emphatic that committing forgery and using a forged document as genuine are separate transactions, the commission of one does not necessarily involve the commission of the other, and a person committing the two offences can certainly be convicted of them both. But, in Ismail Panju, AIR 1926 Nag 137 Findlay, A.J.C., of the same Court agreed with the reasoning of Aikman, J. in Umrao Lal, 1900 ILR 23 All 84 and thought that "the language of section 471 most obviously suggests that this provision, is expressly directed against some person other than the forger himself".

According to him, "the reason for the presence of section 471 on the statute book, in the somewhat unusual language which is employed therein, is in order to provide a useful alternative charge in cases where there is uncertainty as to whether the person on trial is himself the forger of the document, or has merely used it as genuine, knowing it to be nothing of the sort".

18.15. Section 471 revised.-

To the extent that this controversy has arisen from the "somewhat usual language employed" in section 471, we are of the view that it should be avoided by dropping the referential form and making the punishment provision self-contained. We have ourselves no doubt that the object of employing the abbreviated form the punishment to be imposed for the offence of using a forged document is simply to equate it to the punishment for committing forgery in respect of that document which may fall under section 465 or 466 or 467.

The wording of the punishment provision in section 471 does not appear to be specially designed to provide a useful alternative charge in cases of uncertainty. The offence under this section may be committed either by the forger himself or by another person, e.g., one who has employed a professional to prepare the forged document for him. It is difficult to see why in the former case the offender should not be charged with, and convicted of, both the offences.

Section 471 may be revised as follows.-

"471. Using as genuine a forged document.- Whoever fraudulently or dishonestly use as genuine any document which he knows, or has reason to believe, to be a forged documen.-

(a) shall, if the document is one of the description mentioned in section 466, be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and

(b) shall, in any other case, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

18.16. Sections 472 and 47.-combined and revised.-

Section 472 punishes the making of any instrument for the purpose of forging any document mentioned in section 467, while section 473 punishes similar acts for the purpose of forging any other document, including documents of the type mentioned in section 466. While this preparatory act requires to be punished where the object is forgery of any document mentioned in section 466 or section 467, it is hardly necessary in the case of other documents. The punishment of life imprisonment now provided in section 472 appears to be unduly harsh. The maximum punishment of imprisonment for ten years should be sufficient for the offence. We propose that sections 472 and 473 may be combined and revised as follows.-

"472. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable under section 466.- Whoever makes or counterfeits any seal, plate or other instrument making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under section 466, or with such intent, has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

18.17. Section 474 revised.-

In view of the proposal to combine sections 466 and 467 in one section, section 474 may be revised as follows.-

"474. Possessing a forged document described in section 466.- Whoever has in his possession any document of the description mentioned in section 466, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

18.18. Sections 475 and 47.-combined and revised.-

Sections 475 and 476 are similar to sections 472 and 473. These two sections also may be combined and revised on the same lines as follows.-

"475. Counterfeiting device or mark used for authenticating documents described in section 466 or possessing counterfeit marked material.- Whoever counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document described in section 466, intending that such device or mark shall be used for the purpose of giving the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who, with such intent, has in his possession any material upon or in the substance of which any such device or mark has been counterfeited, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

18.19. Section 477 revised.-

Section 477 deals with the offences of cancellation, destruction etc. of "a will, or an authority to adopt a son, or any valuable security". For the reason given1 under section 467, the words "or an authority to adopt a son" may be omitted from this section also. The punishment for this offence may be the same as that provided for the aggravated offence of forgery under the revised section 466 above,. Section 477 may be revised as follows.-

"477. Fraudulent cancellation; destruction etc., of valuable security or Will.- Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the public or to any person.-

(a) cancels, destroys or defaces, or attempts to cancel, destroy or deface, or secrets or attempts to secret, any valuable security or any document which is or purports to be a Will; or

(b) commits mischief in respect of such valuable security or document; shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

1. See para. 18.9, above.

18.20. Sections 477.-applicability to partner keeping accounts of the firm.-

Section 477A deals with the offence of falsification of accounts by a clerk, officer or servant with regard to books, papers etc. belonging to his employer. There appears to be a difference of judicial opinion on the question whether the section applied to the case of a partner who falsifies the accounts of the firm.

In a Calcutta case,1 it was held that a partner cannot be guilty under this section, and that the offence can only be committed by somebody in the employ of another person as a clerk or officer or servant, and the falsification can only be committed in respect of the books of accounts of the employer. A similar view has been taken by the Allahabad High Court.2 But in a Bombay case,3 it was held that a partner, if appointed as such to manage the business or to write the accounts of the firm, acted as its servant, and if he falsified the accounts, section 477A would apply to him.

On a full consideration of both the views, we were inclined to agree with the former interpretation. The opinion expressed by the Supreme Court4 that a partner cannot be held guilty of breach of trust under section 405 is likely to prevail as regards the liability of partners under section 477A also. No amendment of the section by way of clarification is, therefore, necessary.

1. C.V. Krishnan v. Virji Kunverji, AIR 1959 Cal 498.

2. Hari Prasad v. State, AIR 1953 All 660.

3. State v. Devakinandan, AIR 1959 Born 484.

4. Velji Raghavji, AIR 1965 SC 1433: (1965) 2 SCR 429.

18.21. Sections 478 to 489.-

The next twelve sections originally dealt with offences relating to trade marks, property marks and merchandise marks. Two of them, namely, sections 478 and 480 were repealed, and the other sections were amended, by the Trade and Merchandise Marks Act, 1958. The group of ten sections now deals with offences relating to property marks only. There is no controversy about them.

18.22. Sections 489A to 489E.-

Sections 489A to 489E, which deal with offences regarding currency notes and bank notes, have been considered in a previous Chapter.1

1. See Chapter 12 above.

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