Laws For everyday life
Remedy against forged document
S. M. Masum Billah
THOUGH we frequently use the word document in popular usage to indicate any paper, yet it has a legal connotation. Generally, we use documents as evidentiary piecemeal in the courts of law. Law of evidence (Section 3 of Evidence Act, 1872) defines a document as follows: “document means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used for the purpose of recording that matter.” It appears from this definition that documents are not merely papers, but also 'matters' described in 'any substance.' Unfortunately, documents at times are made fraudulently and dishonestly with a view to misappropriate the property of another. Practice of forging documents is an impending threat to effective right to own property, a constitutionally guaranteed fundamental right. Forged document is an instrument of land grabbing and denying of right to property. Law provides remedial measures against such type of systematic malpractice.
What amounts to forgery?
Forgery is a penal offence. Making false document with malafide intention amounts to forgery. However, the statutory language may puzzle you to grasp the extent of forgery. The comprehensive definition of forgery is, “whoever makes any false documents or part of a document, 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.” This begets another question as to what are the legal criteria of a false document.
What is a false document then?
Proof of any of the following elements would render a document false and hence forged.
1. making, signing, sealing, or executing a document or part of a document or making any mark denoting the execution of a document.
2. material alteration of a document without lawful authority, by cancellation or otherwise.
3. causing any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication can not or by reason of deception practiced upon him, does not know the contents of the documents or the nature of the alteration.
In every of the above cases guilty mind i.e. mens-rea is to be proved. The statutory expression of mens rea here is taken to mean 'dishonestly' or 'fraudulently'.
What are the ways by which forged documents are made?
1. Some people commit such a forgery that the document forged has no existence at all in reality. To simplify, if you go to the Sub-Registrar's office and make a comparison between the alleged forged one and the records kept in the Register, you would come to know the truth (prepare to count some search fees as well). If there is no record in that name at all, the document is a forged one.
2. Some forged document are claimed to be registered in destroyed Sub-Registry Office (for natural or other reasons), so that its validity can not be verified.
3. Some documents do exist in reality (which you can discover going to Sub-Registrar's office), but has been forged i. e. the elements of forgery mentioned above are present.
4. Some forged documents are made in the guise of original owner i.e. the fraud personates himself to be the owner of the property.
5. Some other ways of committing forgery of documents are: Seller has no authority but he has sold it by showing document, he is not hirer but has claimed to be the hirer, co-sharer has exceeded the amount of property than his actual share in the partition deed and absentee's property sold by others. A frequent allegation of forged document is heard about minority's property, property of politically less influential, government's khas property and char lands.
How can I identify that a document is forged?
This can be done by good number of ways. Even if one becomes a bit cautious the event of forgery may be discovered by oneself. Of course, in some cases you need to have expertise. People resorting to art of forgery (!) are not less clever than you!
1. You can examine the signs of the executor of the document doubted. However, if signs are not available (for example, illiterate or long before death of the executor) expertise on finger print or other clues may be resorted to.
2. You can examine the seal used in the document. Specially, the spelling changes over the time are very important clues.
3. You can also examine date purported for execution of the document. The government holiday on the used date, or departure of the executor long before that date may be a factor to unearth the originality of a document.
4. Possession of the land in question gives a presumption in favour of the originality of a document. Local inquiry by an intending purchaser of land may also be helpful.
5. Consistency of mutations (nam joma-khariz as it is called in Bangla), regular repayment of land development tax, prior selling, litigation pending related to property in question are also some important factors and tests which can be of immense help to determine the originality of particular document.
What is the remedy against forged document?
Remedy in civil law:
1. Declaratory Suit: In a declaratory suit you can ask the court to declare that the property in question belongs to you and any threat to such property by forged document or whatever means is not tenable in law. You are entitled to such remedy under specific relief law.
2. Rectification or cancellation of instruments: In such remedy you ask the court to declare a document cancelled or you can apply for rectification of the impugned instrument or document. With the cancellation suit you have also the liberty to pray for recovery of possession as a consequential relief.
3. Compensation: You can also pray for compensation for loss sustained by any alleged forged document.
Remedy in criminal law :
1. You can go for a criminal case on the allegation of forgery. The relevant law is: ss. 466-468, 476, and 467 (1), 471(2) of the Penal Code.
2. You can also opt for a criminal case of cheating under section 415420 of the Penal Code.
A recent aggravation of forgery is that this crime is being committed in an organized form. Organized forgery is particularly seen in the urban area. The remedies and protection against forged document are often dilatory, cumbersome and expensive. That is why precaution and due diligence in property transaction can save time, money and hazards.
S. M. Masum Billah is working with Law Desk.