Understanding Forgery and Related Offences under the Indian Penal Code, Study notes of Criminal Law

Download Understanding Forgery and Related Offences under the Indian Penal Code and more Study notes Criminal Law in PDF only on Docsity! INDIAN PENAL CODE (Unit -5) 1. Essentials of mischief with illustration. The definition of mischief is mentioned under Section 425 of IPC & the punishment is prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific punishment prescribed for aggravated forms of mischief depending upon the nature & the value of the property damage. As per the Section 425 of the Indian Penal Code,1860 (hereinafter referred to as IPC) that whenever anyone performs an act either having an intention to cause or is aware that his act is likely to bring, some destruction or damage to any property, destroying or diminishing its value and utility, hence, resulting in an undue loss or damage to the public or any person is said to commit mischief. In simpler terms, it can be understood as when an individual intends to perform an act or has the knowledge that his/her act will create hindrance in allowing another person to enjoy the benefit of their property by one means or other, it is called a mischief. However, this act can be even against the public or against a specific person as well. ILLUSTRATIONS 1. ‘A’ voluntarily burns a valuable thing belonging to ‘Z’ intending to cause wrongful loss to ‘Z’. ‘A’ has committed a mischief. 2. ‘A’ causes a ship to be cast away, intending thereby to cause damage to ‘Z’, who has lent money on bottomry of the ship. ‘A’ has committed a mischief. In the case of Nagendra Nath Roy vs. Bijoy Kumar Das Verma, it was held that mere negligence is not mischief. Negligence coupled with intention to cause wrongful loss or damage may amount to mischief. Mischief involves mental act with destructive animus. ESSENTIALS OF MISCHIEF The section requires following essentials to constitute an offence under this section :- 1. Intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person (mens rea) – It is not necessary that there must be damage of destructive nature to constitute an offence under this section but it requires merely that there should be an invasion of right and diminution of the value of one’s property. For ex:- some persons belonging to one village pulled and removed fishing stakes lawfully fixed in the sea within three miles of the shore by the villagers of another village, and the removal of the stakes, though without any intention to appropriate them, occasioned “damage”, it was held that the offence amounted to mischief. 2. Causes the destruction of any property or any such change in any property etc. (actus rea)- The main ingredient of this section is the destruction of property or such change in it as destroys or diminishes its value or utility. For example, the accused on receiving delivery of a registered article from a postmaster was requested to sign an acknowledgement for the article received by him, but instead of returning the same duly signed he tore it up and threw it on the ground. It was held that he was guilty of mischief. In the case Byomkesh Battacharya vs. L.N. Datta, the accused stopped the supply of water to the complainants flat through operation of wrench valve key and, thereby, turning the main pipe outside the storage reservoir. It was held by the high court that the expression “change in the property so as to destroy or diminish its value or utility” in Section 425 does not necessarily mean a change in character, composition or form. The 2. When a person who without a lawful authority acting in dishonest or fraudulent manner alters a document or an electronic record, either by himself or by any other person, in material part. 3. When a person in dishonest or fraudulent behaviour causes any person to sign, seal, execute or alter a document knowing that such a person because of his incapabilities like unsoundness, intoxication or deception does not understand the contents, of the document or nature of alternation. In such circumstances, a person is said to made an false document or an electronic record and therefore, he commits the offence of forgery under Section 463 of the IPC. The Supreme Court in the case of Sheila Sebastian vs. R.J. Jawahraj and Another, talked about Section 463 and 464 of the IPC. It says that Section 463 defines the offence of forgery while on the other hand Section 464 substantiates the same by providing answer as to when a false document or an electronic record could be said to have been made for the purpose of committing the offence of forgery under Section 463. However, Section 464 defines only one of the essential ingredient of forgery i.e., making the false document. It was further said by this court in this case that charge of forgery cannot be levelled against a person who is not maker of false document in question. For ex:- ‘A’ without ‘B’s authority writes a letter and signs it in ‘B’s name certifying to ‘A’s character, intending thereby to obtain employment under ‘Z’. ‘A’ has committed forgery inasmuch as he intended to deceive ‘Z’ by the forged certificate, and thereby to induce ‘Z’ to enter into a implied or express contract for service. 3 . Offences relating to marriage. INTRODUCTION A generally accepted definition of marriage is that of matrimony or wedlock, which is a culturally recognised social sanction of union between two people. This union helps in establishing rights and obligations between two people coming together in this union, along with their children, and the in-laws.  OFFENCES RELATING TO MARRIAGE Offences pertaining to marriage are provided in Section 493 to 498, of the Indian Penal Code, 1860. These laws deal with the various aspects of a marriage, and their subsequent felonies. The most illuminated of these is Section 498 A, otherwise known as The Cruelty Law. This law, along with The Domestic Violence Act (Passed in 2005), aims to provide substantial protection to female victims of cruelty and domestic violence. With the incrementally increasing cases of such nature, it was observed that such legislation was necessary to ensure that the Fundamental Right to Life and Dignity, entrusted upon each citizen by the Constitution of India, is complied with. Furthermore, cruelty was also made to be a substantial ground for the dissolution of a marriage, too. Other sections of chapter XX include:  Mock marriages (Section 493);  Bigamy (Section 494 and 495);  Fraud Marriage (Section 496)  Adultery (Section 497);  Criminal elopement (Section 498);  Cohabitation after deceitfully inducing a belief of marriage  Section 493 is for every man who deceives a woman into having carnal intercourse with him under the pretext that she is married to him. For this, the Indian Penal Code provides for a ten-year jail term, with a fine. This section has been a topic of heated debate amongst lawmakers for a considerable amount of time.   Section 494- Marrying again during lifetime of husband or wife (Bigamy) Whoever having husband or life living marries in any case in which such marriage is void by reason of its taking during the life of such husband or wife. Shall be punished with imprisonment of either description for term which may extend to seven years and shall be liable for fine. Exception: This section does not extend to any person whose marriage with such husband or wife has been declared void by court of competent jurisdiction. Any person who contracts marriage during the life of former husband or wife, if such husband or while at the time of subsequent marriage shall been continually absent from such person for seven years and shall not been heard by such person as being alive within that time provided the person contracting such subsequent marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. Section 495 - Concealing the previous marriage before subsequently getting wed Section 495 talks about a ten year incarceration period, with fine, for a person who hides their former marriage with someone they are getting married to. It is a non-cognizable, bailable offence, with the trial being carried out by first class Magistrate. ESSENTIALS OF SCETION 495 1. Existence of previous marriage; 2. Second marriage to be valid; is living with the husband, man knowingly goes away with her in such a way as to deprive the husband of his control over her, with the intent to have illicit intercourse, then it constitutes an offence within the section. SECTION 498 – Cruelty by husband or relatives of husband Whoever being husband or relative of husband of a woman, subject such woman to cruelty shall be punished with imprisonment for term which may extend to three years and shall also be liable to fine. In the case of Inder Raj Malik v. Sunita Malik, 1896 It was held that word “cruelty” is defined in explanation which inter alia says that harassment of a women with a view to coerce her or any related persons to meet any lawful demand for any property or any valuable security is cruelty. CRIMINAL INTIMIDATION AND ITS INGREDIENTS Introduction The offence of criminal intimidation that is provided under Section 503 of the IPC. According to this Section, criminal intimidation occurs when an accused threatens the victim with damage to his reputation, body, or property, or another individual in whom he has a vested interest. The punishment for the offence is outlined in Section 506 of the IPC. WHAT IS CRIMINAL INTIMIDATION? According to the Oxford dictionary, the literal definition of intimidation is “to intimidate someone in order that the other person acts as we desire.” Criminal intimidation is defined in Section 503 of the IPC as an offence committed in which an individual endangers or threatens another with harm to his person, reputation, or property in order to compel the other individual to do an act that he is not bound by law to perform. The intimidator is the person who endangers the other. The accused may use words or gestures to intimidate and harm the victim’s body, property, reputation, or other members of the family.  Illustration: A threatens to burn down B’s house in order to persuade him not to file a civil suit. A has committed the offence of criminal intimidation. In this situation, A has threatened B that he will cause damage to the property of B and subsequently asked him to omit to do the certain act (to file a civil suit) which he is legally bound to do therefore A will be guilty of the offence of criminal intimidation. ESSENTIALS OF CRIMINAL INTIMIDATION The landmark case of Narendra Kumar & ors. Vs. State established the following elements as necessary to constitute an offence of criminal intimidation:- The threat of injury to the victim Section 44 of the IPC defines injury as any damage whatsoever unlawfully induced to any individual, in body, mind, reputation, or property. Threatening can be done in the following ways:  to cause injury to a person;  to cause injury to his reputation;  to cause injury to his property;   to cause injury to another person or the reputation of anybody in whom the victim is interested. Intimidation to cause bodily harm to another Criminal intimidation refers to any threat or danger that would cause bodily harm to an individual. Physical damage alone must be taken into account for this Section, and mental or emotional trauma must be avoided. Moreover, the danger has to be specific in nature and clearly communicated to the opposing party. Intimidation to cause damage to his reputation The term ‘reputation’ has been used in the context of goodwill because it will diminish a person’s value in the eyes of the community. As a result, any effort or danger to cause harm to goodwill falls under the purview of criminal intimidation. Threatens to cause harm to his property The property or wealth of an individual is the outcome of his tireless hard work and is extremely valuable to him. Therefore, any danger or warning that could cause significant damage to his property is also regarded as an offence under Section 503 of the IPC. The word ‘property’ encompasses both physical and intangible property. Joint-holding properties can also come under the ambit of this Section. Threatening to inflict harm to any other individual or his reputation in which the original person’s interest is involved The definition of criminal intimidation is broadened by this provision. This provision broadened the definition of criminal intimidation. This provision makes threats or warnings of threats an offence if they are intended to harm someone in whom they have a personal interest. In layman’s terms, it refers to any warning or threat given to his son, daughter, wife, or any other close family member. Moreover, the explanation mentioned in Section 503 asserts that a threat to harm a dead person’s reputation is also protected by this Section. Intention at the time of the threat The threat should be made with the intention of:  causing alerts to an individual; or ESSENTIALS OF FORGERY The following are the essentials of forgery given under Section 463 of IPC:- 1. the making of a false document or a part of it. 2. Such making should be with dishonest or fraudulent intent: (a) To cause damage or injury to : (i) Any person or; (ii) Public or; (b) To support any claim or title or; (c) To cause any person to part with the property; (d) To cause any person to enter into an contract, whether implied or expressed or; (e) To commit fraud or that fraud can be committed in the coming future. 1. Making of a false document The first ingredient in order to make someone liable for the offence of forgery is making of a false document or electronic record. The person is said to make a false document is explained under section 464. In other words, we can say, Section 464 explains what amounts to making of a false document or electronic record. The document must be legally capable of affecting the fraud intended and it is not necessary that the document should be published or made in the name of an existing person. The Supreme court in Mohd Ibrahim v. State of Bihar (2009) 8 SCC 751, observed that a person is said to have made false document if: i. He made or executed a document claiming to be somebody else or authorized by someone else; or ii. He altered or tampered a document; or iii. He obtains a document practicing deception or form a person who is not in control of his/her senses. To Cause Damage or Injury to the any person or public The 2nd essential is that some damage or injury must be intended to be caused by the false document to the public or to any individual. In the case of Sanjiv Ratanappa v. Emperor AIR 1932 Bom. 545, the court held that a police officer who makes any changes in his diary so as to show that he had not kept certain persons under surveillance will not be liable for the offence of forgery because there is no risk of damage or injury to any other individual. Therefore, if there is no damage or loss to any individual then the person will not be made liable under Section 463 of IPC. To Support any claim or title A person who has legal claim or title over a property can be made liable under section 463 if he counterfeits the documents in order to support it. For Example: ‘D’ said that my property will be transferred to ‘A’,’ ‘B’ and ‘C’ in equal share after his life time. ‘A’ acting in dishonest manner scratched the name of ‘B’ intending that whole property will be shared between himself and C. Here A has committed forgery and will be liable under section 463 of IPC. To cause any person to part with property When a person makes a false document with an intention to cause, any other person to part with his property, damage or injury, then it is immaterial that the property must be in existence at the time when the false document was made. For example: If ‘A’ gives an order to ‘B’ to make Sofa cum Bed for him, but ‘C’ before the Sofa cum Bed is made writes a false letter purporting, but falsely, to be signed by ‘A’, authorizing ‘B’ to deliver the same to ‘D’ when made. Here ‘C’ will be guilty of an offence under this section by eating that false letter with intent to cause ‘B’ to part with the tea-set, when made. Intent to commit fraud There are cases in which a person can be made liable if he makes a false document with an intention to commit fraud with the other individual. In order to constitute fraud, an intention to deceive is required. For Example: ‘B’ makes a painting and signs the name of a well known artist on that picture. He exposes the same picture for the sale in the market which was purchased by ‘C’. Here ‘B’ will be liable under the offence of forgery because he defrauds ‘C’ by giving out the impression that the picture was painted by renowned artist whereas the painting was made by him. Here, B could be made liable for the offence of forgery even if the picture was not purchased by anyone because the intent to deceive the public by exposing the picture in market itself amounts to forgery. ILLUSTRATIONS:- 1. X has a letter of credit upon B for rupees 10,000 written by Z. X, in order to defraud B, adds a cipher to the 10,000 and makes the sum 100000 intending that it may be delivered by B that Z so wrote the letter. A has committed forgery. 2. A picks up a cheque on a banker signed by Himanshu, payable to bearer but without any sum having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum of ten thousand rupees. A commits forgery. 6 MARKS 1. CRIMINAL TRESPASS Introduction Every individual has a right to the full enjoyment of their property without any disturbance, this is the reason trespass was made an offence. Even though trespass is ordinarily a civil wrong for which the defendant can sue for damages, but when such trespass occurs with a criminal intention it amounts to criminal trespass. If your enjoyment of your property, whether movable or immovable is disturbed due to criminal activities of any kind, be it theft or assault, you can seek remedy under the Indian Penal Code (IPC). For instance, X unlawfully and without Y’s permission enters into Y’s house to steal his grandfather’s antique watch, X would be liable for theft as well as criminal trespass.  Meaning of criminal trespass Section 442 of IPC, defines house-trespass as committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, place of worship or as a place for the custody of the property. As house – trespass is against the possession of property, it cannot take place if the defendant is not in actual possession of property. Section 448 talks about the punishment for house trespass which not exceeding the term of 1 year, with fine of 1,000 or loss or both. Lurking house-trespass Section 443   of IPC, deals with a further aggravation of house- trespass, known as lurking house-trespass. The section defines this offence as committing house trespass and taking precautions to conceal the offence of house-trespassing from any person who has a right to exclude or eject the trespasser from the building which is the subject of the trespass. For example the case of, Prem Bahadur Rai vs. State. Lurking house-trespass by night Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e trespass committed at night. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC. House-breaking Housebreaking is also an aggravated form of house-trespass and implies forceful entry into one’s house. Section 445 of IPC lays down 6 ways in which housebreaking can occur. For example the case of Pullabhotla Chinniah. Housebreaking by night When housebreaking is committed after sunset and before sunrise, it is considered an aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC. Conclusion If a stranger or for that matter even a known person enters any property in your possession with an intent to cause harm or injury, then such a person would be liable for committing an offence of criminal trespass under IPC and remedy can be sought by any court of law. While determining the offence of criminal trespass it is necessary to have an intention to commit wrong and mere knowledge would not amount to criminal trespass. 2.Bigamy Section 494 – Marrying again during lifetime of husband or wife. Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable for fine. Exceptions 1. This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction. 2. The said provision does not extend to any individual who contracts a marriage during the lifetime of their former partner wherein such partner at the time of such individual’s second marriage was not heard of for a period of seven years or wherein there is no information of them being alive. Section 495 Whoever commits the offence defined in the last preceding section, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable for fine. Essential Ingredients 1. Existence of a prior lawful marriage In the offence of bigamy, one of the essential elements is that of the existence of a prior lawful marriage. The mere subsistence of a prior lawful marriage itself declares the subsequent marriage void because it confirms the existence of a living wife or husband of such individual. In case the prior marriage is not valid in the eyes of the law then marrying again will not be labelled as bigamy. 2. Second marriage to be valid The second essential element to constitute the offence of bigamy is that the person concerned should have married again. In order, to attract the provisions of this section not only the first marriage, but also, the second marriage should be a valid one. This means that all the necessary ceremonies required by the personal laws governing the parties to the marriage should have been duly performed. The mere keeping of a concubine or mistress is not sufficient to attract the penal consequences of this section. For ex., the case of Satya Devi vs. Khem Chand. 3. Second marriage to be void by reason of first husband or wife living – The sole basis of the second marriage being void shall be due to the existence of the partner from the prior lawful marriage. This means that the wife or husband of such individual from the prior lawful marriage must be alive during the time of the subsequent marriage to declare it void and establish a case of bigamy. It is pertinent to note that this Illustrations 1. ‘A’ finds the key of ‘Z’s house door, which ‘Z’ had lost, and commits house – trespass by entering ‘Z’s house, having opened the door with that key. This is house – breaking. 2. ‘A’ commits a house trespass by entering into ‘Z’s house through window. This is house breaking. Conclusion House-trespass is a more serious offence than mere criminal trespass, lurking house-trespass and house-breaking are aggravated forms of house-trespass and lastly lurking house-trespass by night and housebreaking by night would attract the highest kind of punishment.