Forgery is not merely an alteration to a piece of paper. It is an alteration of the truth in a document, by one of the methods defined by law, coupled with the intention to use it for the purpose for which it was forged. That definition is the key to the defence.
Contents
1) Definition and Elements
Forgery is an alteration of the truth in a document by one of the methods prescribed by law, of a kind capable of causing harm, together with the intention to use the document for the purpose for which it was forged.
- Material element: the act of alteration affecting a document by one of the legally defined methods.
- Harm: even potential harm suffices; harm is a condition of the offence.
- Mental element: criminal intent, namely knowledge of the falsity and the will to bring it about.
2) Official and Private Documents
Official documents
Those issued by a public official or a person charged with a public service acting within their competence, or documents they authenticate. Forging them is treated more severely because it strikes at public confidence in official records.
Private documents
Those made by individuals without the intervention of a public official, such as contracts and receipts; the penalty is comparatively lighter.
3) Material and Moral Forgery
- Material forgery: leaves a physical trace on the document — erasure, deletion, addition, imitation of a signature or seal, or fabricating the document outright.
- Moral forgery: occurs during the drafting of the document with no physical trace — recording an untrue fact as true, altering the declarations of the parties, or presenting a false fact as an established one.
4) The Offence of Use
Liability for use attaches to whoever produces or relies on a forged document knowing it to be forged. Knowledge here is an essential element: a person who uses a document unaware of its falsity bears no criminal liability.
5) The Penalty
The penalty is graded by the type of document and the capacity of the offender:
- Forging official documents is treated more severely than forging private ones.
- Commission by a public official in the course of duty is an aggravating circumstance.
- The judgment may carry ancillary or supplementary penalties depending on the characterisation.
6) Handwriting Expertise
Handwriting expertise is often the pivotal evidence. It is important to know that an expert's report is an element of proof subject to the court's assessment, not binding authority.
- Signatures must be compared against sufficient and sound specimens.
- The defence may request examination of the expert or appointment of another.
- The circumstances in which the comparison specimen was produced may affect the result.
7) Principal Defences
- Absence of harm flowing from the alteration.
- Absence of criminal intent, or of knowledge of the forgery in the offence of use.
- Disputing the character of the document, official or private.
- Challenging the expert report and seeking a fresh examination.
- Nullity of procedure relating to the seizure or custody of the document.
- Failure to attribute the act to the accused for insufficiency of evidence.
8) Practical Scenarios
Scenario: accused of forging a signature
- Obtain an official copy of the document in question.
- Provide signature specimens contemporaneous with the alleged date.
- Request appointment of an expert and examination of the report.
Scenario: you submitted a document later found forged
- Document the source of the record and who provided it.
- Establish your lack of knowledge at the time of submission.
- Report the matter to the competent authority once discovered.
