Offences Relating to Documents and Property Marks

By | January 17, 2020
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Offences Relating to Documents and Property Marks | Overview

This article deals with offences Relating to Documents and Property Marks. The elements of fraud and dishonesty must be present in his mind in order to bring the conduct of the defendant under the cover of this chapter.

Introduction to Offences Relating to Documents and Property Marks

The offence of forgery has also existed since the time of the invention of writing. Forgery is making a false instrument with the intention of deceiving’ in modern English Common Law. Forgery Act, 1913 describes falsification as ‘making a false report so it can be used as genuine’.

According to the Common Law of England, ‘any device that fraudulently purports to be what it is not is forgery’.  It is not necessary for the entire document or instrument to be a manufacture, given that any component element contains a falsification.

The main difference between cheating and forgery is that it is verbal when committing the fraud, while it is written in forgery. Because the mischief caused by the offence of forgery in terms of value is often proportionately high, the penalties provided are also often severe.

I. Offences Relating to Documents (Sections 463 to 477A)

  1. Forgery (Section 463)
  2. Making a false document (464)

Punishment for forgery

Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (Section 465)

A. Nature and Scope of sections 463, 464, 465 IPC

There are two key provisions for the offence of forgery as specified in the Code. Section 463 describes forgery as making a false or fraudulent electronic record with any of the stated intentions. Section 464 describes making a false report or false electronic record necessary to bring it into the cover of falsification. In both sections, there is one common component, that of fraud.

The accused must have made a false report, an electronic record, or part of such a document or electronic record, to prove forgery. Including the need for the prosecution to prove this, it will also have to demonstrate that, as the case may be, the report or electronic record was forged to satisfy any of the purposes mentioned in s 463.

The essential ingredients of ‘ forgery ‘ as described in 463 may be classified as I making a false or fraudulent electronic record or part thereof; (ii) making such records with the intention of:

  1. causing damage or harm to the public or to any person; or
  2. supporting any statement or title, or
  3. causing any person to part with property, or
  4. entering into any express or implied contract; or
  5. making any claim or title part thereof.

In Daniel Hailey Walcott v State of Madras [1], the Madras HC defined the main elements of the forgery offence as follows:

  1. the document or part of the document must be in fact false;
  2. it must have been made in a deceptive or fraudulent manner within the meaning of the words used in s 464, IPC, and
  3. it must have been made with one of the reasons set out in s 463, IPC.

B. MAKING A FALSE ELECTRONIC RECORD  OR FALSE DOCUMENT  

It is clarified in s 464, IPC, what amounts to making a false report or false electronic record. The person making a false report or a false electronic record commits falsification. It is important that once created, the false report or the false digital record should either appear on its face or be one that, if it were real, would have some legal validity.

S 464 defines three ways in which a false or incorrect electronic record or document can be made:

  1. by making, reviewing, signing or executing a document or a part thereof; or by making or transmitting any electronic record or part thereof; or by adding an electronic signature to any electronic record;
  2. by modifying a record or electronic record;
  3. by causing a person who is innocent of the content or nature of the alteration made to a document or electronic record to sign, seal or execute the document.

To make a false document or a false electronic record means to make a document or an electronic record or part thereof, to perform a document or an electronic record or to sign a document or an electronic record in a fraudulent or deceptive manner. A fake report is also said to have been made when the signature, the seal or the date is incorrect.

C. FORGED DOCUMENT COMPREHENDS CREATING A NEW DOCUMENT

The definition of the false document is sufficiently broad to include not only the act of adding false signatures to documents but also the act of making or producing entirely new documents. In Province of Bihar v Surendra Prasad [2], it was held that, in a case involving an accusation of the production of a completely new document, the important issue was whether the act of signing or creating the document was performed in a deceptive or fraudulent manner and was intended to make it appear that the document, or any part thereof, was produced, signed or sealed or executed by the authority of a person by whom or by whose author it was created.

D. MAKING DOCUMENTS BY MECHANICAL MEANS

The definition of a ‘ document ‘ (s 29, IPC) does not necessarily require that it be rendered in the handwriting in any case or include the person’s signature or facsimile, but it also requires what is achieved by printing.

 In LK Siddappa v Lalithamma [3], the accused printed an invitation to marry confirming the union between the accused and the claimant. He then circulated the news among friends and relatives with the intention of pressuring the plaintiff to marry him or threaten her for his own malicious purposes, apart from printing it in the local newspaper.

In reality, the complainant was only 20 years old and was set to inherit thousands of rupees worthy of man. Neither the complainant nor the names of the person on whose behalf the marriage invitations were given allowed the accused to print or distribute e-invitations.

The Mysore HC held that the invitations to the marriage were fabricated and fall within the meaning of a false document under s 464, IPC. This found the accused guilty of falsification and sentenced him under IPC s 465.

E. FORGING A DOCUMENT BY AFFIXING OWN SIGNATURE

It was a query that emerged in Bharat Heeralal Sheth v Jaysin Amarsinh Sampat[4] whether a person can forge a document by signing it himself. In this case, through the accused, who was running a share-brokering firm, the complainant had purchased and sold shares.

The accusation was that the defendant owed the plaintiff a large amount of money. When the plaintiff went to the accused’s office to ask for it, the accused produced a backdated bill, signed by the accused, showing that the plaintiff had actually suffered a loss due to certain transactions in an earlier period of amount Rs.30,700. The bill above was false and fabricated and created by the accused to avoid making payments to the complainant, according to the complainant.

The Bombay HC held that the aim of the section was to cover cases even when the accused was the author of the document himself, made on his own behalf and under his own seal. Therefore, the two examples made it clear that the definition’s scope was very broad and it could not be said that the first part of s 464 was the only clause defining terms, ‘making the false text’.  The accused’s conviction was upheld properly.

F. AGGRAVATED FORMS OF FORGERY

In the subsequent provisions between ss 466-471, IPC, the various elements and aggravated ways of forgery are elaborated in the Code, which prescribes different terms of punishment depending on the severity of the results of the forgery as mentioned below.

  1. For the forgery of ‘valuable security’, ‘will’ and so on (s 467), punishment for life imprisonment or imprisonment for up to 10 years, and also fine,
  2. (2) for the forgery of documents, public records and so on (s 466) and forgery for the purposes of cheating (s 468), punishment for up to seven years imprisonment and fine;
  3. forgery for the purposes of harming reputation (s 469), imprisonment for up to three years with fine.

G. FORGERY OF THE COURT RECORD OR PUBLIC REGISTER (Section 466)

The chapter deals with the falsification of five forms of documents. These are:

  1. court records and pleadings;
  2. a registry of birth, death, baptism, marriage or registration kept by a public servant as such;
  3. a certificate or document intended to be made by a public servant in his or her official capacity; or
  4. an authority to dismiss or prosecute a claim, or to take any action therein or to grant judgment; or
  5. a power of attorney.

The elements of fraud and dishonesty must be present in his mind in order to bring the conduct of the defendant under the cover of this chapter. This section does not extend to a public official or a person acting under his authority, whose responsibility is to make entries for making a false record in a public register or journal.

It only refers to a case where some unauthorized person is committing forgery in order to make the report appear to have been properly released by the officer concerned.

H. FORGERY OF VALUABLE SECURITY OR WILL (Section 467)

All the elements required to constitute forgery must be proven before there can be a prosecution under this paragraph. In order to establish this crime, the prosecutor must necessarily prove that there has been intention as indicated in ss 463 and 464, IPC, “fraudulent” or “dishonest.”

The main ingredients of the clause are: the forged document must:

  1. purport to be (a) valuable security; or (b) a will; or (c) an authority to adopt a son; or
  2. allow any person to (a) render or pass any valuable security; or (b) receive a principal, interest or dividend on valuable security; or (c) receive or deliver any cash, movable property or valuable security;
  3. the object of a receipt of acquittal: (a) the acknowledgement of payment of money; or (b) the delivery of any moving property or valuable security.

I. FORGERY FOR PURPOSE OF CHEATING(Section 468)

The forgery envisaged here must necessarily involve the purpose of cheating. When the fraud is complete, the provision will not apply, and the subsequent forgery is intended only to cover the crime.

J. Forgery for purpose of harming reputation. (Section 469)

Section 469 deals with the falsification of a report in order to damage a person’s reputation. The word ‘ harm ‘ used connotations of pain, body injury, mind, reputation and properties, and damage.

K. Using as genuine a forged document or electronic record. (Section 471)

Section 471 deals with the liability of a person who, knowingly or with reasons to believe that the document is fake, uses a forged document as authentic, fraudulently or dishonestly, and not the person who forged it. It, therefore, allows the defendant to use the forged document as legitimate, which he knew or had grounds to believe is a forged document.

II. Offences relating to Property Marks

As expressed in the IPC, the legislation on the subject originally dealt with two issues: first, trademarks as specified by the amended s 478, IPC, and second, property marks as defined by s 479 IPC. ‘Trademark’ refers to the manufacture of the products of these two, whereas ‘property mark ‘ refers to its owner.

There is a third aspect to the quantity and quality of the origin of the goods, which is generally referred to as the description of trade. The Trademarks Act,1999 governs this topic of trade classification.

A. The following are the provisions on property markings that remain in force in the IPC:

  1. Section 479 – Defines a mark of property;
  2. Section 481 – deals with the use of a mark of false property;
  3. Section 482 – Punishment for the use of a mark of false property;
  4. Section 483 – Counterfeiting of a mark of property used by another;
  5. Section 484 – Counterfeiting of a mark used by a public servant;
  6. Section 485 – Making or possession of any instrument for the forfeiting of a mark of property;
  7. Section 486 –Selling goods marked with a counterfeit mark of property;
  8. Section 487 and 488—Deceiving a false mark to a public servant.

Section 479 describes a property mark as denoting a mark placed on a mobile property that signifies that it belongs to a particular person with the implication that it distinguishes other people’s right to the same property.

The object of such a provision is clear because it protects one’s goods from other people’s fraudulent imitation. The fundamental principle underlying this branch of law is that no one is entitled to pose as his own goods belonging to another, and thus give the impression that the goods he represents belong to him.

Therefore, no person is allowed without permission to use another’s logos, symbols, signs or tools, thus deceiving the potential customer or consumer with the false representation. In this sense, the distinction between the trademark and the property mark must be acknowledged.

Trademark refers to the label denoting the manufacturer’s ownership of a particular item or products. The property tag, on the other hand, signifies the right to property.

Property mark – A mark used for denoting that movable property belongs to a particular person is called a property mark. (Section 479)

Using a false property mark – Whoever marks any movable property or goods or any case, package or other receptacle con­taining movable property or goods, or uses any case, package or other receptacle having any mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked, or any property or goods contained in any such recep­tacle so marked, belong to a person to whom they do not belong, is said to use a false property mark. (Section 481)

Punishment for using a false property mark – Whoever uses any false property mark shall unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. (Section 482)

B. Nature and Scope of sections 479, 481, 482 IPC

A mark used to denote that a particular person belongs to some movable property is called a property tag. A person is said to use a false property mark:

  1. If he marks any movable property or goods or any case, box, or receptacle containing movable property or goods; or (ii) uses any case, package or other receptacle containing any mark thereon;
  2. in a manner reasonably calculated to cause it to be believed that the property or good is so marked, or any property or goods found therein. Belong to a person to whom they do not belong (s 481);
  3. The offender shall be liable to one year’s imprisonment or both (s 482).

Sections 483 to 489 of IPC deal with the offences relating to counterfeiting any property mark used by a person.

C. Test of Infringement

The measure of a trade mark’s violation is whether the suspected actions are likely to mislead the public. Lord Herschell said, ”It seems to me that the Judge’s eye must be that in such a situation and that the issue must be resolved by putting the model’s side by side and asking whether they are the same or whether the one is an obvious imitation of the other.”

Mere variations in complexity do not necessarily preclude the two models from being the same. In Lakhan Chandra Basak v King Emperor[5], the defendant, the umbrella maker, was found guilty under s 483 when he imitated the umbrella of the claimant by having on his cover the image of an elephant in a circle with a mahout on his back carrying an umbrella to the right. The elephant stood to the left in the umbrella of the claimant.

In Roshan Singh v Emperor[6], the accused imitated the famous 501 soap plaintiffs by inserting his soap of exactly the same length, No 301, which was held guilty under s 482, the only difference being that the accused had inserted digit 3 instead of digit 5 in the plaintiff’s soap.

It was held that the markings on both soaps were so similar, although not identical, that there was every possibility that an ordinary person would be led to believe that he was buying 501 soap from the complainant.

D. Counterfeiting a mark used by a public servant

“Whoever counterfeits any property mark used by a public servant, or any mark used by a public servant to denote that any property has been manufactured by a particular person or at a particular time or place, or that the property is of a particular quality or has passed through a particular office, or that it is entitled to an exemption, or uses as genuine any such mark knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.” (Section 484)

The basic ingredients of s 484 may be specified as:

  1. counterfeiting of;
  2. a property mark used by a public servant or any mark used by a public servant;
  3. denoting that any product was produced by a particular person or at a particular time or place; or
  4. that the property was of a particular quality; or
  5. passed through a particular office; or
  6. that the property was manufactured by a particular person or place.

The punishment that can be imposed if these ingredients are established is imprisonment for three years and fine.

In Emperor v Dahyabhai Chakasha[7], the  National Bank of India used to import gold bars for sale in India. Each bar was of uniform size, weight and purity and had the words’ National Bank of India’ engraved on it as a property mark. The gold so imported was known on the market as Nasrana Bak and acquired a special value on the market.

Nasrana Bak inscribed on its bars the accused put on the market gold of their own mark with the words ‘Nasrana Bak’. Bombay’s High Court ruled that a property mark was used by the National Bank of India in the bars it purchased and that the defendant was guilty of counterfeiting the property mark.

References

  1. KI Vibhute, PSA Pillai’s CRIMINAL LAW, 11th ed, 2012, Lexis Nexis.
  2. Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 35th ed, Lexis Nexis.
  3. KD Gaur, CRIMINAL LAW CASES AND MATERIALS, 5th ed, Lexis Nexis.

[1] AIR 1968 Mad 349

[2] AIR 1951 Pat 86

[3] AIR 1954 Mys 119

[4] (1997) Cr LJ 2509 (Bom)

[5] AIR 1925 Cal 149

[6] AIR 1947 All 87

[7] (1904) 6 Bom LR 513

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