Forgery
Forgery is the process of making, adapting, or imitating objects or
documents with the intent to deceive. Forgery is defined by section 342
of the Penal Code as the making of a false document with intent to
defraud or to deceive.
The effect of forgery is that a person knowingly makes a false document
or writing with intent that it may in any way be used or acted upon as
genuine and with intent to defraud or deceive.
Section 347 of the Penal Code Act provides that any person who forges
any document commits an offence.
In Uganda, forgeries are reported to be done to enable people get
academic documents such as transcripts, driving permits, identity cards,
pay slips, licenses, land titles and many other important government and
corporate documents.
In case of Nsubuga Gerald & Anor Vs Uganda the second appellant
Angelo Muwanga’s conviction was upheld for having forged signatures on
land transfer forms in order to acquire registration.
Ingredients
Falsity
Forgery requires the making of a document and a document means a
writing in some form. Under section 343, a document does not include a
trade mark or any other sign used in connection with acts of commerce.
A document is not only a writing based on paper but it also includes that
which is based on wood, stone or metal. Not only it must be a document,
but the document must be false for it to be forgery. Section 345 of the
Penal Code provides for circumstances in which falsity may arise. These
are:
(1) making a document purporting to be what in fact it is not. For
example where a person manufactures his own university
transcript;
(2) altering a document without authority in such a manner that if the
alteration had been authorised it would have altered the effect of
the document, for example, where a tax receipt of they year 2000 is
altered to appear as a 2009 tax receipt;
(3) Introducing into a document without authority while it is being
drawn up a matter which if it had been authorised would have
altered the effect of the document. for example where a cheque is
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drawn for Shs.100,000 and a person adds three Zeros to the figure
to read Shs. 100,000,000.
In Wagachira v R,1 the accused in order to make it appear that he had
lawfully bought a bicycle altered the cash receipt from the cycle shop. He
did this by erasing the pencil ink on the receipt referring to a cycle bell
and wrote in pen ink that it was sale of a bicycle. The cash receipt was
held to be a false document. In the case of Singh v R, the accused was
required to make a written statement of defence in a civil suit by 22nd of
March 1957. Instead, he took the statement of defence to the
magistrate’s clerk on the 23rd of March and while no body was watching,
he stamped the document with the official stamp dated 22nd March. It
was held that this was a forgery since the date was material and the
alteration would thus alter the effect of the document by making it
appear as though it was filed in time.
(4) If the effect of the instrument depends upon the identity between
the person signing the document and the person whom he or she
professes to be, signing a document—
(i) in the name of any person without his or her authority;
(ii) in the name of any fictitious person alleged to exist;
(iii) in the name represented as being the name of a different
person from that of the person signing it and intended to
be mistaken for the name of that person;
(iv) In the name of a person personated by the person signing
the document. In R V Potter,2 the accused personated his
brother in a driving test and signed the examiner’s book
and certificate of competence in his brother’s name. The
signature was held to be a forgery.
Patel V R 26 K.L.R 72
Document is defined in section 343 of the Penal Code not to include does
not include a trademark or any other sign used in connection with
articles of commerce though they may be written or printed. In essence,
a document includes a register, a register book or part of either and any
paper parchment or other material whatever, used for writing or printing
which is marked with any letters or marks denoting words.
The false document must also have been made with intent to defraud or
deceive. To deceive is to induce a person to believe that a thing is true
when it is false and which the person practicing the deceit knows or
believes it to be false. To defraud is to induce a person to act on his
injury by way of deceit.
1
[1957] EA 808
2
[1958] 2 All ER 51
2
The falsity must be the purport of the document and not its contents. In
Baigumamu v Uganda,3 the appellant was charged with forgery, uttering
a false document and with theft. He was convicted on all the three
counts. He had received Shs. 30/= and had issued a receipt of that sum.
He had filled in the duplicate of the receipt with the figure of Shs/=. The
difference of Shs. 15/= had not been accounted for. On appeal, it was
held that the appellant was not guilty of forgery as the falsity must be of
the purport of the document and, not its contents. The document must
tell a lie about itself. That forgery consists of the making of a false
document with intent to defraud or deceive. The victim in this case had
in fact paid Shs. 30/= and had received the said receipt for that sum he
was in no way defrauded or deceived even though the appellant filled in
what purported to be a duplicate copy of the receipt with the figure Shs.
15/= for which he would be accountable and converted the balance of
Shs. 15/= to his own use. The appellant would have been guilty of
fraudulent false accounting but not forgery.
Uttering False Documents
Under section 351 of the Penal Code Act, any person who knowingly and
fraudulently utters a false document commits an offence of the same
kind and is liable to the same punishment as if he or she had forged the
thing in question.
In the Attorney-General of Uganda v. Gaburiel Ottii,4 the respondent was
changed inter alia with uttering a false document, namely, a driving
permit. The magistrate who tried the case made no finding whether the
respondent knew the driving permit was false, but he held that the word
“fraudulently” in section330 (now section 351) connotes the causing of
some economic loss and, therefore, acquitted the respondent. The
attorney-general appealed on the ground that the magistrate was wrong
in the meaning he give to the word “fraudulently.” It was held that an
intention to cause economic loss is not a necessary ingredient of the
offence created by s. 330 of the Penal Code, but since knowledge of the
falsity of the document uttered is an ingredient of that offence the case
should be remitted to arrive at a finding on that question.
Cheque Fraud
Cheque Fraud is the forgery, alteration, counterfeiting, or knowing
issuance of a cheque on an account that has been closed or has
insufficient funds to cover the amount for which the cheque was written.
Under section 354 of the Penal Code Act, any person who, with intent to
defraud obliterates, adds to or alters the crossing on a cheque; or
knowingly utters a crossed cheque, the crossing on which has been
3
[1973] EA 26.
4
[1957]EA 341.
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obliterated, added to or altered, commits a felony and is liable to
imprisonment for seven years.
A variety of techniques are used to commit cheque fraud, including such
practices as writing cheques on closed accounts, having insufficient
funds in an account to cover a cheque, opening fictitious accounts, the
alteration of an original cheque, forgery, and counterfeiting.
Closed account fraud, or “paperhanging,” occurs when cheques are
written against an account that has already been closed. This type of
cheque fraud relies upon the time that it takes a bank transaction to be
processed or “float time.” The float time offers a window of opportunity
for the criminal to defraud the financial institution. A suspect will
typically attempt to cash a cheque at a local branch of the bank or at a
place of business within a short time after closing the account on which
the cheque is drawn.
An act similar to closed account fraud is known as cheque kiting.
Cheque kiting requires multiple bank accounts and the movement of
fictitious funds between those multiple bank accounts. Like closed
account fraud, the cheque kiter also takes advantage of the time that it
takes for a bank transaction to be processed in order to create fraudulent
balances. A cheque kiter will deposit a checkcheque drawn on one bank
into a second bank without having adequate funds in the first account to
cover the cheque. When the deposit is made, the second bank grants the
depositor credit, allowing the customer to draw cheques against funds
not yet collected by the bank. The checkcheque kiter then writes a
cheque on the second bank account and deposits it into the first bank to
cover the original cheque. The perpetrator’s plan is to continue writing
cheques between accounts to cover insufficient funds. Banks attempt to
protect themselves from this kind of fraud by holding deposits for several
days to make sure that a deposited cheque “clears” (meaning it has
successfully been converted into cash). In a well-known corporate version
of this offense in United States, E.F. Hutton pled guilty during the 1980s
for misusing the “float” time between when cheques were deposited and
when they cleared. The company essentially received interest-free use of
funds it was holding for others. The company paid a $2 million fine.
Cheque fraud can be facilitated through new accounts opened under
false information such as in cases of identity theft. After depositing
altered or counterfeited cheques into the account, the offender then
makes withdrawals for a large portion of the account balance before the
bank realizes it has been victimized.
The process of altering a checkcheque is another form of checkcheque
fraud. Be consistent with the word cheque. Chemical modification to
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checkcheques or “checkcheque washing” is one of the most popular
forms of alteration. Cheque washers use acid-based household chemical
solutions to alter or erase particular pieces of information on the
checkcheques such as payee name and payment amount. Cheque
washers may then add new information to the checkcheques using a
typewriter, laser printer, or other means in order to make the cheques
payable to themselves or to co-conspirators while also increasing the
amount payable.
19. Malicious Damage to Property
Under section 327 of the Penal Code, it is an offence for any person to
willfully and unlawfully destroy or damage any property.
Ingredients
Willfully and unlawfully
This means that the damage must be contrary to the law and be caused
intentionally or recklessly. It is not enough that D intended to do an act
which caused the damage unless he intended to cause the damage; proof
that D intended to throw a stone is not proof that he intended to break
the window. Nor is it enough that D intends to damage property of
another; D commits no offence in intentionally damaging property if he
believes, wrongly as it turns out, that the property is his own.5
Recklessness in this context connotes foresight of the consequences. This
interpretation was endorsed by the English Court of Appeal in
Stephenson v. R.6 The accused was sleeping rough, started a fire in the
side of a stack of straw to warm himself. The fire spread and the stack
was destroyed. The court held that ‘a man is reckless when he carries
out the deliberate act appreciating that there is a risk that damage to
property may result from his act. It is however not the taking of every
risk which could properly be described as reckless. The risk must be one
which it is in all circumstances unreasonable to him to take.’
In Caldwell v. R7 Lord Diplock rejected the view that recklessness
necessarily involved foresight by the accused of the possible
consequences of his conduct. That a person is reckless as to whether any
property would be destroyed or damaged if (i) he does an act which in
fact creates an obvious risk that property will be destroyed or damaged
and (ii) when does the act he either has not given any thought to the
5
Smith & Hogan. 633.
6
[1979] QB 695, [1979] 2 All ER 1198.
7
[1981] 1 All ER 961.
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possibility of there being any such risk or has recognized that there was
some risk involved and has none the less gone on to do it.
For example where a person throws a stone at the crowd and the stone
misses the crowd but breaks a window. The prosecution must at least
prove that the accused had foresight that the window might be broken,
i.e. that he acted recklessly. In the case of R v. Mohamedali 21 KLR 45,
the accused picked a quarrel with a person sitting in a car. He struck at
the person in the motorcar and in doing so, damaged the car. His defence
was that he did not willfully damage the car because his intention was to
strike the occupant. The supreme court of Kenya held: willfully has been
described as meaning deliberately and intentionally and not by accident
or in advertence. Although the accused achieved a result that he did not
intend, he achieved it in circumstances which showed that he was
reckless as to that result and to act recklessly is to act willfully’. The
conviction of willfully and unlawfully damaging a motorcar stood.
It is essential that the damage occurs without a lawful excuse.
Accordingly, a police officer who, in order to execute a warrant of arrest,
has to force open the door of the house is acting with lawful excuse
although he intends to damage the door or the lock.