Officer or Servant

cannot be any alteration, punishable as forgery, unless it affects the substance or the essential circumstances of the document305 .

4. Forgery of Public, Commercial or Private Bank Documents by person not being a Public Officer or Servant

According to Section 191 “any other person (i.e., other than a public officer or servant acting in the exercise of his-functions) who shall commit forgery of any authentic and public instrument or of any commercial document or private bank document, by counterfeiting or altering the writing or signature, by feigning any fictitious agreement, disposition, obligation or discharge, or by the insertion of any such agreement, disposition or discharge in any of the said instruments or documents after the formation thereof, or by any addition to or alteration of any clause, declaration or fact which such instruments or documents were intended to contain or prove, shall, on conviction, be liable to hard labour or imprisonment from thirteen months to four years, with or without solitary confinement” .

The object of this crime can be:

(a) any authentic and public instrument; or

(b) any commercial document; or

(c) any private bank document.

Section 1276 (2) of the Civil Code defines “a public deeds” (‘atto pubblico in the original Italian text) as "an instrument drawn up or received with the requisite formalities by a notary public or other public officer lawfully authorised to attribute public faith thereto". This definition corresponds, in the models to that given of an “authentic” act rather than of a public act. Thus art. 1271 of the Civil Laws of the Neapolitan Kingdom defined an authentic act "Quello che e’ stato ricevuto da pubblici uffiziali autorizzati ad attribuirgli la pubblica fede nel luogo in cui l'atto si e' steso, e con le solennità richieste". As Maino puts it, "Gli atti pubblici del codice civile sono gli atti autentici". The "public" instruments to which the Criminal Gode is referring are all the acts of office, that is to say, all the acts drawn up by a public officer in the discharge of his duties.

305 Roberti, op. cit., p. 212

The definition of the crime we are now considering requires that the instrument, the object of the forgery, shall be not merely public but also authentic. In other words, it is not every act drawn up or received by a public officer in the discharge of his functions that can be the object of this crime; but only such of these acts as are drawn up or received by him and to which he is legally authorised to attribute public faith. A public officer does not render an instrument ‘public’ and ‘authentic’ merely because the instrument originates from him; he so renders it when he draws it up or receives it with the requisite formalities and lawfully attributes public faith to it.

Commercial and private bank documents are treated in the same manner as public and authentic instruments in respect of their forgery under this section. This severe treatment is necessary in view of the speed with which these documents are destined to circulate for the uses of trade and the good faith which is, therefore, an essential condition thereof. As was stated in the report concerning the draft of the French Penal Code of 1810, quoted by Chauveau et Helie306:

"La sicurezza e la confidenza sono le basi del commercio, e gli atti che lo ringuardano presentano per la loro importanza e pei loro risultamenti punti di rassomiglianza con gli atti pubblici: la sicurezza della loro circolazione, che deve essere necessariamente rapida, richiede una protezione particolare da parte della legge. Questi motivi e la facilità di commettere falsità sopra gli effetti di commercio hanno suggerito la gravezza della pena per tali falsità!

Now, what is to be understood by “commercial documents” (Scritture di commercio)? According to the commentators of the Neapolitan Code, they are those writings which have for their object an act of trade as defined in the Commercial Law307. Sections 5 and 6 of our Commercial Code give a definition of “acts of trade". Any writing which is destined to be evidence of any such act or which relates thereto would, therefore, be a ‘commercial document’ for the purposes of this crime. To these must also, however, be added the trade books which, according to the commercial law, traders are bound to or may keep for the purposes of their trade.

306 Vol. III, p. 204 307 V. Arabia, op. cit., p. 170; Roberti, op. cit., p. 293 et. seq.

From this it is clear that a document is not a “commercial document” for the purposes of this crime merely because it emanates from a trader, unless it refers to an “act of trade” . A trader, like a public officer, is not different from any other individual when he performs acts which do not depend on his special personal capacity.

On the other hand, if the document is a “commercial document” as above defined, it does not matter that the forgery has been committed by a person who is not himself a “trader” as defined in the Commercial Code:

“La protezione della legge parte dalla mira di favorire il commercio dalle insidie che possono venire agli atti e alle scritture che lo riguardano; e se queste insidie sono ugualmente dannose sia che provvengano da un ‘negoziante’, sia che derivino da persone estranee alla mercatura, non vi sarebbe ragione alcuna per distinguere l’uno dalle altre”308 .

In respect of this crime also, the “praeiudioium alterius” is not an essential element. But where the forgery relates to a commercial or private bank document (as distinct from an authentic and public document) then, according to certain writers, the crime does not subsist unless the forger has in fact uttered the forged document. If, as Arabia says, use has not been made of the document by uttering it, there cannot be any criminal proceedings, because it remains a mere preparatory act which could be destroyed by the repentance of the offender, which repentance must be presumed until the contrary is proved309. It is not thought that this solution would be accepted by our Courts. As has already been pointed out, our Code deals with the crime of “use” distinctly from the crime of “forgery” and even where the "user" is the forger himself, our Courts have repeatedly held that, there are two distinct and separate offences.

The various modes in which this crime can be committed are clearly stated in the section. It must only be again noted that in regard to this crime also the forgery must be in respect of some material particular; otherwise, it would not alter the nature or the purpose of the document.

308 Roberti, op. cit., p. 310 309 Op. cit., p. 172; vide also Nicolini P. P. p. II, n. 896