Sunday, August 7, 2016

Snippet - Unintended amendments to the Crime of Forgery?

My attention was drawn to a rather startling fact recently [see here for the one piece I found discussing this online]. The definition of forgery under Section 464 of  the Indian Penal Code 1860 [IPC] today is not what it used to be - and is commonly still assumed to be by many laypersons and lawyers alike. The cause of this is the series of amendments made to the IPC by the First Schedule to the Information Technology Act 2000 [the link leads to all statutes passed in 2000, scroll around to find the this particular one].

Section 464 before the amendment read as follows:

First - Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed ... [emphasis supplied]

The provision after the amendment reads as follows:

A person is said to make a false document or false electronic document or false electronic record - 
First - who dishonestly or fraudulently - 
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature

with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed executed, transmitted or eaffxed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed ...    

The last bit in bold has curiously disappeared with the amendment. This has important ramifications for it means that antedating documents no longer constitutes forgery. Mr. Mahesh Jethmalani argues that it is possible to rebut this conclusion by arguing that this consequence is the result of an inadvertent legislative oversight, rather than the product of explicit legislative design. This invokes the doctrine of casus omissus, which has been invoked by courts to remedy patent legislative defects [the Madras High Court in 2007 discussed the concept at length in Sundaram Brake Linings Ltd. v. Kotak Mahindra Bank Ltd.], albeit rarely. The argument certainly has merit in this case. The purpose of the amendments made by the Information Technology Act to the IPC was to broaden the scope of the offences by including the electronic medium within them. And no discussion in parliament on the Information Technology Bill mentioned anything about removing a substantial portion of the forgery offence.

It has been nearly sixteen years since the amendments were passed and this issue has not received any judicial attention to my knowledge. From the latest I've heard though, a petition is currently pending in the Supreme Court where this issue has been flagged for consideration. It will be interesting to see which way the decision goes, whenever it does come.

1 comment:

  1. Do you need a quick long or short term loan with a relatively low interest rate as low as 3%? We offer Xmas loan, business loan, personal loan, home loan, auto loan,student loan, debt consolidation loan e.t.c. no matter your score, If yes contact us via Email: finance2014911@gmail.com Fill The Loan Application Form Below Name............ Amount Needed........ Duration.......... Country............ Monthly income....... Age............. Phone Number........ Sex ................. Email................Business Plan/Use Of Your Loan:....... Apply now on this email :finance2014911@gmail.com Warm Regards Dr Purva Sharegistry

    ReplyDelete