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Article 123 Forgery

This article deals with incidents where a service member has tried to defraud another by means of forgery or has passed on or used a forged document. The accused is punished as deemed right through a court martial process. The assumption is that the accused's act of forgery caused someone to undertake a liability which was not his or lose a right which he was entitled to. There are two separate situations covered under this article and their critical components are as follows:

a) Making a forged document or altering with intent to create a forged document

Elements:

  • That at a specific time and place, the accused fraudulently made or altered a specific signature that appeared on a written document/ a check or a part thereof.
  • That the check or written document would (if it were genuine) impose a liability on another or change his right or duty in a manner unfavorable to him in a specific way.
  • That the accused carried out the act of forgery with an intent to defraud.

Note: a) Even when actual fraud has not taken place, the accused has violated this article if intent to defraud can be established during the trial.

b) Intent to deceive is not the same as the intent to defraud. If the defense can establish that the accused intended to deceive but did not intend to cause a loss of some kind to another or gain of some kind to himself, he may not be in violation of this article.

Maximum Punishment: The accused faces maximum punishment of forfeiture of all allowances and pay, dishonorable discharge and 5 years confinement.

b) Uttering- Forgery

Elements:

  • That a specific signature that appeared on a written document/ a check or a part thereof was falsely affixed or altered in a specific manner.
  • That the check or written document would (if it were genuine) impose a liability on another or change his right or duty in a manner unfavorable to him in a specific way.
  • That at a specific time and place, the accused offered/ uttered/ transferred/ issued this written document or check.
  • That when he committed this act, the accused was well aware that the check or written document had been forged
  • That his act of uttering/ issuing/ transferring/ offering was carried out with an intent to defraud

Note:

a) 'Utter' refers to state by words or by actions that a certain written document or check is genuine

b) Proof of intent to defraud is enough to secure a conviction under this charge. Actual fraud need not have been committed

c) If the accused intended to deceive but did not intend to defraud (i.e.: he did not seek gain from the deception nor did he seek to make anyone lose anything) the defense attorney may establish that he is not guilty of violating this article

Maximum Punishment: The accused faces 5 years confinement, forfeiture of all allowances and pay and dishonorable discharge as maximum punishment.

In both a) and b), the accused is guilty of 'altering' the check or written document when he has brought about a change of any kind in its legal tenor, for example, changing the date in a promissory note. Any document/ check that has been delivered to the accused with genuine writing and later found to be altered is deemed to have been altered by the accused. The accused has not committed forgery when he genuinely makes a false instrument with a clear intent to defraud. For example, if he signs his name on a check from a bank where he does not have an account, this crime is not one of forgery since this is a check signed by its actual maker. For more information on this article, please refer to the Manual for Courts Martial.

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