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Forgery Stw (New)

Forgery Stw (New)

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Published by sise1

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Published by: sise1 on Aug 22, 2010
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08/22/2010

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C.D&E /S.T.WFORGERYAuthority: Chapter XXXIV AND XXXV CRIMINAL LAW:
The definition of Forgery is contained in section 345 of criminal law. It isthe “making of a false document with intent to defraud or to deceive”.From the definition it can be seen that it comprises of two importantpoints, which in all forgery cases must be proved. These are (1) making afalse document and (2) intent either to defraud or to deceive.Section 347 of the criminal law defines the instances when a person issaid to have made a false document. These instances are when a person: -(a)Makes a document purporting to be what in fact it is not. E.G‘D’ prints some chequebooks similar to those used by thebank without authority of the bank.(b)Alter a document without authority in such a manner that ifthe alteration had been authorized, it would have alteredthe effect of the document. E.G. “D” without authorityaltered the amount payable on a cheque.(c)Introduces into a document without authority whilst it isbeing drawn up, matter which if it had been authorizedwould have altered the effect of the document. E.G “D” isgiven a signed blank cheque and enters an amount higherthan that he is authorized to enter as payable on thecheque.(d) Signs a document:-i.In the name of any person without theauthority of that person whether suchname is or is not the same of that of theperson signing “D” signs G’s name on acheque without authority of G.ii.In the name represented as being the nameof a different person from that of the
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person signing it and intended to bemistaken for the name of that person.E.G. “D”, procures P, who is unaware of D’sfraud to sign his own name, D intending topass off P’s signature as that of anotherperson of the same name as P.iii.In the name of a person personated by theperson signing the document. Provided thatthe effect of the instrument depends uponthe identity between the person signingthe document and the person whom heprofesses to be.E.G “D”, signs an insurance claim formpersonating “G”, the legal wife andbeneficiary of “C”, the deceased. In thiscase, the claim would be effecteddepending on the identity of the twowomen (a marriage certificate for instancewould be used).This section does not create any offence at all. This means thatwhenever a person is to be charged with forgery this section should notbe used. The proper sections to use are the punishment sections such assections 349, 350, 357 criminal law (See the High Court of Kenya, PhilipJoseph Wilson Mbende versus Republic Criminal Appeal No. 581 of 1970E.A. L W reports 1971 page 553.)
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DOCUMENT.
There is no definition of document in the criminal law but it could beconstructed as having the same meaning as defined in the interpretationand General Provisions Act, Cap 2. It is defined as “ Document includesany publication and any matter written, expressed or described upon anysubstance by means of letters, figure or marks, or by more than one ofthose means, which is intended to be used or may be used for thepurpose of recording that matter.”But as far as forgery, cases are concerned, “document” does not includeany trademark or any other sign used in connection with articles ofcommerce though they may be written or printed.(sec s46 criminal law)This means that if trademarks are forged either with intent to defraudor deceive the offence may be dealt with under the trademarks Act andnot under forgery cases. Also see Chapter.
INTENT TO DEFRAUD OR DECEIVE.
The first thing a criminal does in a forgery case is to make a falsedocument. The making of a false document must be done with a specificreason. Usually the intention of making such a false document is either todefraud or to deceive. A part from proving that a document was false,one has to prove either one of these two intents so as to prove forgery.Generally speaking, an intent to defraud refers to private document andto some extent to public document and an intent to deceive refers mainlyto public documents. Public documents are defined in section 79 of theKenya Evidence Act.i.“Documents forming the acts or records of the Acts:-ii.Of the sovereign authority; oriii.Of official bodies and tribunals; or
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