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2024:KER:83495 CRL.MC NO. 3248 OF 2023

17. In this connection, it is relevant to refer Sections 463, 465 and 468 of the IPC and its corresponding provision in the Bharatiya Nyaya Sanhita (hereinafter referred to as 'BNS' for short).

Section 463 of IPC provides as under:

463. Forgery.--Whoever makes any false document 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.

Section 336(2) of BNS is the corresponding provision to Section 465 of IPC and the same reads as under:

2024:KER:83495 CRL.MC NO. 3248 OF 2023 "(2) 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 468 of IPC reads as under:

"468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

or d. To cause any person to enter into express or implied contract; or e. To commit fraud or that fraud may be committed.

19. Further it is the settled law that every false or fabricated document is not a forged document. There must be acts that constitute the document as a false or fabricated one, that is to say, the case must fall within the definition of making false document under Section 464 of the IPC and such false document must also possess the character of tendency described under Section 463 of IPC. It is not necessary that the document should be published or made in the name of a really existing person (vide explanation 2). But it must either appear on its face to be, in fact, on which, if true, would possess some legal validity. Or in other words, must be legally 2024:KER:83495 CRL.MC NO. 3248 OF 2023 capable of effecting the fraudulent intent. Until a false document is made either in whole or in part, there cannot be any forgery. Mere preparation for the commission of a possible crime of forgery without a false document in part or in whole cannot itself be either forgery or abetment of forgery. To put it otherwise, it is not correct to say that an offence of forgery in terms of Section 464 of IPC comes into being when a person makes a false document and not when a person causes to be made a false document. No word in an enactment is surplusage. The law-making authority, in its wisdom, has used the word "makes" in addition to the other words, such as "signs, seals and executes". The said word has, therefore, to be interpreted independently of the other words referred above. Making a document is different from causing it to be made. As per explanation 2 to Section 464 of IPC, it is clarified that for constituting offence under Section 464 of IPC, it is imperative that a false document is made and the accused person is the maker of the same.

2024:KER:83495 CRL.MC NO. 3248 OF 2023

21. In the decision reported in Shri Sukhbir Singh Badal v. Balwant Singh Khera and Others reported in 2023 KHC 6479, the Apex Court considered the offence of forgery in paragraph No.5.7 and held as under:

"whoever makes any false documents, 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", he is said to have committed the offence of forgery. Making a false document is defined under S.464 IPC. Therefore, for the offence of forgery, there must be making of a false document with intent to cause damage or injury to the public or to any person. Therefore, making the false document is sine qua non. Identical question came to be considered by this Court in the case of Mohammed Ibrahim & Ors. (supra). While interpreting S.464 and S.471 IPC and other relevant provisions of IPC, in paragraphs 13 an d 14, it is observed and held as under:- "13. The condition precedent for an offence under S.467 and S.471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false 2024:KER:83495 CRL.MC NO. 3248 OF 2023 electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused. 14. An analysis of S.464 of the Penal Code shows that it divides false documents into three categories: