Kuwait Court of Cassation principle number 37

Summary: - The material element of the offense of using a document that has lost its legal force. Its existence. Through the offender performing a positive act in which he uses the document that has lost its legal force and relies on what is recorded therein. Inferring the occurrence of this element. A matter of fact. The condition thereof. Rule: It is established that the offense of using a document that has lost its legal force, stipulated in Article 261 of the Penal Code, requires, for its material element—namely use—to exist, that the offender perform a positive act by which he uses the document that has lost its legal force and relies on what is recorded therein. What matters in this respect is the act performed by the offender, irrespective of how that act may be construed in another person's mind. Inferring the occurrence of the material element is a matter within the exclusive competence of the trial court according to what emerges from the facts of the case, without review in this respect, whenever it bases its judgment on supporting grounds rooted in the papers. Criminal intent—in this offense—is that the offender knows that the document he is using has lost its legal force for one of the reasons referred to in the aforementioned Article 261, intending to create the false impression that the document still retains its legal force. Determining whether this intent is established or absent is a factual matter within the exclusive competence of its judge, without review, so long as he bases his judgment thereon on justifying grounds. It is also established that the judgment need not discuss expressly and separately every element of the offense of using a document that has lost its legal force, so long as the facts and circumstances set out in its reasoning suffice to indicate its existence. It is further established that the material element of the offense of forgery of official documents is established by the mere alteration of the truth in the document by one of the methods stipulated by law, with the intention of using it for the purpose for which it was forged, whenever the document, after alteration, is capable of giving rise to the belief that it conforms to the truth. Criminal intent—in that offense—is established by the offender deliberately altering the truth in the document while intending to use it for the purpose for which the truth was altered. The judgment need not discuss expressly and separately every element of forgery so long as it has set out in its reasoning what indicates its existence. What the first-instance judgment, whose reasoning was adopted, supplemented and amended by the challenged judgment, set out—in explaining the incident in the case and reviewing the substance of the evidence establishing it—in the manner previously detailed, establishes all the legal elements of the offenses of forgery of 2 official documents and using a document that has lost its legal force—as defined by law—including criminal intent, and adequately answers what the 2 appellants raise concerning the absence of those elements. Moreover, challenged judgment No. .........., issued on 21/3/2013, demonstrated the existence of criminal intent on the part of the first appellant and addressed her statement that she did not know what attorney ............... had done, in her capacity as her agent, in completing the procedures for the 2 official contracts forming the subject of the accusation, by stating: ((This statement by her is incompatible with reason and logic, because the last contract agreed that the first defendant would manage the company and would have all powers to manage the company in its relations with third parties, and would have authority to conclude contracts and transactions falling within the company's objects; appoint, suspend and dismiss the company's employees and determine their salaries, wages and bonuses; receive and pay sums; transfer and conclude all contracts, agreements and transactions relating to the company's business and the attainment of its objects, for cash or on credit; and appoint as agent whomever she wishes. These are matters that cannot under any circumstances be authenticated by the agent unless the principal—the first defendant—has studied them carefully, agreed to them, and then instructed the agent to complete the authentication. Accordingly, the plea that she did not know what the agent had done has no sound basis in fact or law and must be rejected)). What the judgment set out in demonstrating the existence of criminal intent on the part of the first appellant therefore suffices to answer her defense concerning criminal intent. Accordingly, the 2 appellants' criticism of the judgment in this regard is incorrect.