OFFENCES RELATING TO DOCUMENTS: FORGERY

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By 2016-11-04

The applicable penalty is enhanced in circumstances where the forged document is purportedly a record of a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate of document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit or to take any proceedings therein or to confess judgment, or a power of attorney, in terms of Section 455 of the Penal Code which says, whoever commits the above shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Where the forged document is one which purports to be a valuable security or a will, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, Section 456 of the Penal Code says, whoever commits the above shall be punished with imprisonment of either description for a term which may extend to twenty years, and shall also be liable to fine.

For the purpose of cheating

Where the forgery has been committed with the intention that the document forged should be used for the purpose of cheating, Section 457 says, whoever commits the above shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Defining 'a forged document', Section 458 says a false document made, wholly or in part, by forgery is designated 'a forged document'.

On using as genuine a forged document Section 459 says, 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.

In the case of Attorney-General v. Anthonipillai (1948) 50 NLR 227, the accused was charged with inserting without lawful authority a new phrase in a certificate after it had been signed and issued by the person who purported to be the relevant authority for the purpose, and with making use of the improperly altered document. It transpired, however, that the certificate, even as it was originally issued, lacked validity for want of compliance with legal requirements. Nevertheless, Windham J held in appeal that this circumstance did not vitiate a conviction of using as genuine a forged document.

A conviction of using as genuine a forged document may be sustained in circumstances where no loss is caused to any person, to the public or to the government. In the case of Silva (1935) 37 NLR 7 the accused obtained a loan from a Cooperative Society on the strength of a forged certificate of death, but subsequently repaid the loan in full. No financial detriment was, therefore, caused to anyone. Notwithstanding this fact, the accused was held guilty of using as genuine a forged document.
On making or possessing a counterfeit seal, plate, &c., with intent to commit a forgery punishable under Section 456, Section 460 says, whoever makes or counterfeits any seal, plate, or other instrument for making an impression, intending that the same shall be used for the committing any forgery which would be punishable under Section 456, or with such intent has in his possession any such seal, plate, or other such instrument, knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Possessing a counterfeit seal

On making or possessing a counterfeit seal, plate, &c., with intent to commit a forgery punishable otherwise, Section 461 says, whoever makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under any Section of this Chapter other than Section 456, or which such intent has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit,shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
On having possession of a forged record or valuable security or will known to be forged, with intent to use it as genuine, Section 462 says, whoever has in his possession any document, knowing the same to be forged, and intending that the same shall fraudulently or dishonestly be used as genuine shall, if the document is one of the description mentioned in Section 455, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in Section 456, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

On counterfeiting a device or mark used for authenticating documents described in Section 456, or possessing counterfeit marked material, Section 463 says, whoever counterfeits upon or in the substance of any material, any device of mark used for the purpose of authenticating any document described in Section 456, 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 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 imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

On counterfeiting a device or mark used for authenticating documents other than those described in Section 456, or possessing counterfeit marked material, Section 464 says, 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 456, 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 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 imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

A false message by telegraph

On sending a false message by telegraph, Section 465 says, whoever knowingly causes to be transmitted by telegraph or tenders to any public officer employed in the Posts and Telecommunications Department for transmission any false message with intent to defraud, injure, or annoy any person, or to spread any false rumour, which may be detrimental to the government or the interests of the public, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

On fraudulent cancellation, destruction &c., of a will Section 466 says, whoever fraudulently or dishonestly, or with intent to cause damage or injury to the public or to any person, cancels, destroys, injures, or defaces, or attempts to cancel, destroy, injure, or deface, or secretes or attempts to secrete any document which is purports to be a will, or any valuable security, or any record, register, book, or document kept by any public servant in his capacity as such or by any person in pursuance of any enactment or Statute, or commits mischief in respect to such record, register, book, or document, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Of falsification of accounts Section 467 says, whoever, being a clerk, officer, or servant, or being employed or acting in the capacity of a clerk, officer, or servant, willfully and with intent to defraud destroys, alters, mutilates or falsifies any book, paper, writing, valuable security, or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully and with intent to defraud makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, paper, writing, valuable security, or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

A general intent to defraud

In explanation it is said that it shall be sufficient in any charge under this Section to allege a general intent to defraud without naming any particular person intended to be defrauded, or specifying any particular sum of money intended to be the subject of the fraud or any particular day on which the offence was committed.

It was held in the case of Gunatunga (1952) 53 NLR 522 that the mental element involved in the offence of falsification of accounts has to be established by the prosecution. However, it was held in the case of Christian (1945) 46 NLR 403 that, where the accused does not deny that the material alterations were made by him without proper authority, dishonesty may be held to have been established if no plausible explanation is offered.

In the case of Ragal (1902) 5 NLR 314, cf. the case of Somander v. Uduma Lebbe (1924) 24 NLR 146, Bonser CJ observed: "If a person falsified his accounts, then you have at once evidence of dishonesty".
Of possession of any imitation of a currency note, bank note or coin, Section 468 says, (1) whoever without lawful authority or excuse, the proof whereof shall lie on the person accused, shall have in his possession any imitation of any currency note, bank note or coin which is lawfully current in any part of Sri Lanka or in any foreign country shall be guilty of an offence and shall be liable to imprisonment of either description for any period not exceeding two years, or to fine, or to both and (2) for the purposes of this Section the expression 'imitation' includes cotton, silk or other woven goods impressed with designs in imitation of any currency note, bank note or coin lawfully current in Sri Lanka or in any foreign country.

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