FORGING SIGNATURES WITH CONSENT: ASSESSMENT UNDER THE IPC

INTRODUCTION

Forgery is referred to as the creation of a false instrument, the intention of which is to deceive.[1] It is to be noted that forgery is normally understood to be cheating. However, both the terms differ slightly; the point of differentiation between the two is that in cheating deceiving is done through oral means whereas in forgery written means is adopted.

The Indian Penal Code (IPC) defines the offence of 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.”[2]

Although the IPC doesn’t define the term “consent” anywhere it does describe what not consent is through section 90. The same has also been reiterated in Kaini Rajan v. the State of Kerala[3]. As per section 90 of the IPC, consent of an insane person and that of a child are dismissed straightaway to qualify for consent backed by law. The section also negates the legality of consent if it is given under fear of injury, or even if some misconception of fact is present, given that the person doing the act has the knowledge that such consent is induced by any of the factors mentioned.

Consent seems to be a justification of deeds. Herein we will assess what role does consent of a person play to another where he (the person) has allowed another to make a signature on his behalf and another person then makes the signature on the document where the signature masquerades that of the real person.

Assessment under IPC

The basic elements of forgery are[4]:

  • the creation of a false document or part of it; and
  • such creation should be backed by intention as is stated in section 463 of the Indian Penal Court (IPC):
  • for causing any damage or injury to (i) the public, or (ii) any individual, or
  • for supporting any claim or title, or
  • for causing any individual to give up his/her possession of control with any property, or
  • for causing any individual to enter into a contract (which may either be express or implied), or
  • for the commission of fraud or that fraud may be committed.

From the above requisites, (ii) can be judged in the light of the person’s intention who gave his consent. The purpose of the clause is to limit the scope of matters that can entertain the offence of forgery. Clause (i) needs to be checked to determine his/her (replicator’s) liability, and for that matter, the document, whether false or not, is to be determined through section 464 of the IPC.

Sec. 464, IPC is of relevancy for determining the present contention. The false document is said to have been made when a person dishonestly or fraudulently makes a document as backed by an intention of him/her, causing it to be believed in the mind of another that such an instrument was made by some other person in the first place.[5] Here, it is to be noted that the scope of the term ‘fraudulently’ is wider than the term ‘dishonestly’. ‘Dishonestly’ is limited to the extent of causing wrongful gain to one or wrongful loss to another. However, doing something ‘fraudulently’ can also entail non-economic losses. The expression fraudulent includes any kind of injury (bodily, mental or reputation).[6]

In the above observation, the instrument, to be a forged one, should entail both dishonest and fraudulent elements in its making. Even though the presence of the ‘intention’ element is clear, the document cannot be said to be false if the signature is neither made dishonestly nor fraudulently.

In Dr. Vimla v Delhi Administration[7], the accused purchased a car in the name of her minor daughter (6 months old), she signed the insurance policy on behalf of the minor by signing her daughter’s name. The car went through two accidents, expenses of which were repaid by the insurance company. Later, upon realization by the insurance company of signing made by the accused in the name of her daughter, the insurance company sued her for the offence of forgery. The court observed that the accused didn’t enjoy any pecuniary benefit through her act of making the signature. Moreover, the insurance company also didn’t suffer any loss (pecuniary or otherwise) as the conduct of the insurance company relating to the paperwork would have been more or less the same even if the minor would have signed the document by herself instead of her mother in actuality. This was enough for the court to drop the alleged charges against the accused (Sec. 467 & 468, IPC).

Explanation 2 of Section 464 on reading makes it clear that in the present issue if the consent giving person is no more alive and the signature is being made in accordance with his consent after the death, this may amount to forgery. Therefore, the document or any part of it (the signature) is not false, making the elements of forgery not being fulfilled. Moreover, the aforementioned case law illustrates the absence of gain or loss of any pecuniary benefits dissolves any scope of forgery.

“Intent to defraud” is different from “intent to deceive”

In Dr. S Dutt v State of Uttar Pradesh[8], the accused was a legal practitioner who was using forged certificates as proof regarding his qualifications. In response to charges framed against him under Sec. 463 & 471 (IPC), the apex court found no intention on his part to cause a wrongful gain to one or a wrongful loss to another, the court observed that his forged documents may carry the intention to ‘deceive the court’, as he deceived others regarding his qualification. However, he didn’t act dishonestly. Here the court confirmed the difference between ‘intent to defraud’ and ‘intent to deceive’. The court didn’t hold him liable under Sec. 471, IPC but he was made liable under Sec. 196, IPC.

Conclusion

Consent, even though it seems to be a justification prima facie for offences, is not a determining factor in such matters. To be an element of forgery, the signature must be made dishonestly, i.e. with an intention to cause wrongful gain or loss to one or another. Other than that, to be an element of forgery, the signature must be made fraudulently, i.e. with an intention to defraud, injury of which extends to non-pecuniary losses.

If there exist all these elements within a particular scenario, then only the liability for the offence of forgery may arise. However, if the signature is made without the affirmation of any of these ingredients, making of such signatures, will not amount to forgery. That means, if suppose a person signs on the behalf of another any document with his consent, he won’t be held liable for the offence of forgery if the document didn’t aim to defraud anyone and was not dishonest.

Author(s) Name: Divyanshu Kumar (Chanakya National Law University, Patna)

References:

[1] R v Riley [1896] 1 QB 321 (India)

[2] Indian Penal Code 1860, s 463

[3] Kaini Rajan v St. of Kerala (2013) 9 SCC 113 (India)

[4] Sushil Suri v CBI (2011) 5 SCC 708 (India)

[5] Raj Shekhar Agrawal v State of WB (2015) 4 CALLT 615 (HC) (India)

[6] Union of India & Ors v Rabinder Singh (2012) 12 SCC 787 (India)

[7] Dr. Vimla v Delhi Administration AIR 1963 SC 1572 (India)

[8] Dr. S Dutt v State of Uttar Pradesh AIR 1966 SC 523 (India)

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