[CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 4417 of 2014 [ENTITY] Applicant(s) Versus [ENTITY] & 1 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Applicant(s) No. 1 MR [ENTITY], ADVOCATE for the Respondent(s) No. 2 MR [ENTITY], APP for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 10/12/2014 ORAL ORDER
By this application under [SECTION] of the [ACT], the applicant - original accused no.1 seeks to invoke the inherent powers of this Court for quashing of the proceedings of the [CASE NUMBER] pending in the Court of the learned Judicial Magistrate, First Class, Mandvi, District Kachchh.
It appears that the respondent no.2 lodged a private complaint in the Court of the learned Judicial Magistrate, First Class, Mandvi, District Kachchh, which came to be registered as [CASE NUMBER]. It also appears that the same was filed of the offence punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] read with [SECTION] of the [ACT].
In the said complaint, the date and time of the offence alleged to have been committed is 10 th April 1990 till the date of the lodging of the complaint. The complaint was lodged on 7th December 2010. The learned Magistrate took cognizance upon the complaint and ordered police inquiry under [SECTION] of the Code. It appears that to facilitate the inquiry, the learned Magistrate asked the Police Inspector of the Mandvi Police Station to carry out the inquiry in that regard. On receipt of the report from the Police Inspector of the Mandvi Police Station, the learned Magistrate thereafter proceeded to issue process under [SECTION] of the Code of the offence punishable under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT]. It also appears that simultaneously while ordering issue of process, the learned Magistrate also ordered issue of non-bailable warrant.
The case of the complainant in brief is as under :
The complainant claims to be the legal heir of one [ENTITY] who received a property bearing Revenue Survey Nos.453 and 391 situated at village Moa Layaja, Taluka Mandvi, under the provisions of the [SECTION] of the [ACT]. The necessary Entry No.228 was mutated in the record of rights in that regard. Thereafter, on 10 th December 1974, on completion of the proceedings before the Special Mamlatdar, the Entry No.523 was ordered to be certified. According to the complainant, thereafter, [ENTITY] passed away and the names of his legal heirs came to be mutated in the revenue record. It is his case that Entry No.939 [CASE NUMBER] ORDER was mutated in the village form no.6, wherein four names came to be entered as the legal heirs of late [ENTITY]. Such entry was mutated on 31 st January 1984. It is his case that in pursuance to the registered sale-deed dated 10 th April 1990 in favour of one [ENTITY] by the Power of Attorney, viz. [ENTITY] on behalf of [ENTITY], the entry was mutated in the village form on 6 th May 1991. [ENTITY] executed a general power of attorney in favour of [ENTITY] (the applicant herein) on or about 6th October 1999. The village form nos.7 & 12 initially reflected the name of [ENTITY] from 1984-85 till 1990-91. On or about 23 th March 2001, a sale- deed was executed in favour of [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], and pursuant to the sale- deed, Entry No.1915 came to be mutated in the revenue record.
It transpires that from 2001 till 2010, no proceedings took place. On or about 19th September 2009, the Circle Officer certified Entry No.2622 and cancelled Entry No.939. The Talati had issued notice under [SECTION], wherein it is alleged that the signature of [ENTITY] was not obtained, whereas the signature of the accused was obtained.
It appears on plain reading of the verification of the complainant recorded on oath, which is at page 24, that her sister, viz. [ENTITY], was lured to put her signature on the disputed document i.e. the Power of Attorney. It necessarily implies that the signature of [ENTITY] is not disputed so far as the document in question is concerned, however, the case of [CASE NUMBER] ORDER the complainant is that such signature was obtained by misleading [ENTITY].
Be that as it may. The only question that falls for my consideration in this application is, whether the learned Magistrate was justified in issuing the process of the offence punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] in the absence of the false document itself on record.
I have heard Mr.[ENTITY], the learned advocate appearing on behalf of the applicant - original accused, Mr.[ENTITY], the learned advocate appearing on behalf of the respondent no.2 - original complainant, and Mr.[ENTITY], the learned APP appearing on behalf of the State.
It appears and very fairly accepted by Mr.[ENTITY], the learned advocate appearing on behalf of the complainant, that the alleged false document is not on record. Although allegations have been levelled of having committed the offence of forgery, the document i.e. the Power of Attorney, alleged to have been fraudulently obtained from [ENTITY] has not been produced. Mr.[ENTITY] submits that the document is not in possession of his client. I fail to understand that in the absence of the document itself how is the complainant going to prove his case so far as the allegation of forgery is concerned. In the absence of the forged document produced on file, a person cannot be summoned only on a presumption. A trial of forgery cannot proceed in the absence of the documents alleged to be forged.
[CASE NUMBER] ORDER I do not propose to lay down as a proposition of law that in the absence of the document alleged to be forged the Court can in no case hold the offence of forgery. In this context, I may quote with profit a decision of the Supreme Court in the case of [PRECEDENT]. I may quote some of the observations made by the Supreme Court in para 7 as under :
"In the circumstances, we refrain from raising any presumption from the non-production of the sale deed. However, the fact remains that we have not had the benefit of looking at the document alleged to have been forged, a circumstance which is material and which must, to a large extent, go against the prosecution. We do not mean to say that in the absence of the document alleged to be forged the court can in no case hold the offence of forgery to be established, but to claim such a finding in the absence of the document said to be forged, the evidence must in our view exclude all possibility of a reasonable doubt. This is in accord with the general principle of our jurisprudence."
Mr.[ENTITY], the learned advocate appearing on behalf of the applicant has placed reliance on two decisions of the Supreme Court in this context : one, in the case of [PRECEDENT], and another, in the case of [PRECEDENT].
In the case of [PRECEDENT] (supra), the Apex Court observed as under :
"6. We may now examine the contention that the allegations made in the complaint, even if true, do not make cut a case under the aforesaid penal sections. The basic allegation is that the appellant had forged the first [CASE NUMBER] ORDER book by stating that is was based on the manuscript of the king thereby deceiving the Government to get it published for which purpose the assistance of Rs. 2,500 was given and which also induced many members of the public to buy the same believing it as genuine hereby depriving them of their money. Shri [ENTITY] has urged that for an offence under [SECTION], the same has to be "forgery" as defined in [SECTION], whose first ingredient is making of "any false document or a part of a document". A person is said to make false document as per [SECTION], First - who dishonestly or fraudulently makes, signs scales or execute a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed;
or Secondly - xxx xxx xxx Thirdly - xxx xxx xxx Explanation 2 :- The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
7. It is urged by Shri [ENTITY] that for making a false document, the person concerned has to make, sign, seal or execute the same. It is submitted that in the present case, even as per the complaint, the appellant had not move , signed, sealed or executed the alleged manuscript inasmuch as the allegation is that the appellant had passed on some writing as representing the same to be in the hand of the king. In the initial statement the complainant had stated that the appellant relied upon the fabricated book named above "Showing the same as genuine and claiming it as written by late [CASE NUMBER] ORDER [ENTITY] "
8. This shows that the allegations is that the appellant had represented some writing to be of the [ENTITY], though in fact it was not so. It is not the allegation that the appellant had himself written the manuscript and represented it to be that of [ENTITY]. According to Dr. [ENTITY], despite this being the position, requirement of 464 would be satisfied in view of what has been stated in Explanation shows that for it to get attracted "making of a false document" is essential; and it is this aspect which is missing in the present case, according to Shri [ENTITY]. There is apparently force in the submission of Shri [ENTITY] because, as already pointed out, it is not the allegation that it is the appellant who had made, signed, sealed or executed the writing in question. This apart, when we desired Dr. [ENTITY] to bring to our notice as to which writing of King [ENTITY] was represented to belong to him, we were referred to a printed book titled "Rajarshi [ENTITY] Govinda Sangeet Leela Vilasa". This book, however, is a Manipuri translation by one Pt. [ENTITY], we do not have the original.
9. In view of all the above, we agree with Shri [ENTITY] that the allegations made in the complaint, even if true, do not make out the case of forgery. Now, if forgery be not there, allegations under [SECTION] would fail because the allegation in para 5 of the complaint is that by "forging the said book" deception was caused and members of the public were induced to purchase the same. So, forgery is the principal allegation; cheating being a consequential offence. If forgery goes, cheating cannot stand. So,the complaint sections, namely [SECTION], 465 and [SECTION]. It may be pointed out that [SECTION] is intimately connected with [SECTION] and 465."
In the case of [PRECEDENT] (supra), the question before the Apex Court was, whether the allegations made in the petition of complaint together with statements made by the complainant and the witnesses before the Magistrate taken [CASE NUMBER] ORDER on their face value constituted an offence, and just because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges, is he debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear. The Apex Court made the following observations as contained in para 5 of the report :
"But the question yet remains for consideration is whether the allegations made in the petition of complaint together with statements made by the complaint and the witness before the Magistrate taken on their face value, do make the offence for which the Magistrate has taken cognizance of? The learned counsel for the respondent in this connection had urged that the accused had a right to put this argument at the time of framing of charges, and therefore, this Court should not interfere with the order of Magistrate taking cognizance, at this stage. This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in [SECTION] of the [ACT] he is debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under [SECTION] has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under [SECTION] of the Code can be exercised. Bearing in mind the parameters laid down by this Court in several decisions for exercise of power under [SECTION] of the Code, we have examined the [CASE NUMBER] ORDER allegations made in the complaint petition and the statement of the complainant and the two other witnesses made on oath before the Magistrate. We are clearly of the opinion that the necessary ingredients of any of the offence have not been made out so far as the appellants are concerned. The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been started and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complaint and his witnesses are taken on their face value, the offence under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] cannot be said to have been made out. This being the position the impugned order of the Magistrate taking cognizance of the offence dated 5.2.1996 so far as it relates the appellants are concerned cannot be sustained and the High Court also committed error in not invoking its power under [SECTION] of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.96 taking cognizance of the offence as against the appellants stand quashed."
However, even otherwise, in my view, no case is made out to ask the applicant to face the trial. The accused no.2 [ENTITY] has passed away according to the report of the Police Officer dated 18th May 2011. According to the report, the first power of attorney purported to have been executed in favour of the applicant by [ENTITY] was not traceable as the same was handed over to [ENTITY] (deceased) at the time of the execution of the sale deed on 10 th April 1990. The revenue record also shows the name of [ENTITY] from the year 1991-92. The names of other accused i.e. accused nos.5 to 10 and [ENTITY] came to be reflected in [CASE NUMBER] ORDER the revenue record after March 2001. The case of the complainant is that the accused nos.1 and 2 executed the power of attorney purported to have been given by [ENTITY], and with collusion of the accused nos.3 to 5, the property was entered into the name of [ENTITY]. If these allegations are believed to be true, then the offence came to be committed in the year 1990 and thereafter in the year 2001. From 1990 till 2009, the complainant as well as the other legal heirs did not utter a single word and all of a sudden filed a complaint on 7th December 2010. In my view, in the absence of any evidence about the forgery of the power of attorney, the issuance of process on bare averments of the complainant after a period of more than 20 years is not tenable in law.
Mr.[ENTITY] made an attempt to convince me that the forgery was for the purpose of cheating. Let me accept the same for the time being. So far as [SECTION] of the [ACT] is concerned, 'forgery' is the main offence and 'cheating' is the ancillary offence. If there is no evidence as regards the forgery in the absence of the document itself, then there is no question of committing the ancillary offence.
Mr.[ENTITY], the learned advocate appearing on behalf of the complainant has placed strong reliance on the decision of the Supreme Court in the case of [PRECEDENT], wherein the Supreme Court has taken the view that while taking cognizance or issuing process in a complaint case, the Court must have merely a prima facie satisfaction that there is some material on record to proceed against the accused. There cannot be any [CASE NUMBER] ORDER debate so far as the proposition of law explained by the Supreme Court is concerned. However, I am quashing the proceedings on the ground that the basic material on record to proceed against the accused, viz. the very document alleged to have been forged, is not on record and not available with the complainant himself. In that view of the matter, this decision is of no avail to the complainant.
Beside this, there is one additional aspect of the matter. According to the complainant, the Power of Attorney is a false document. It is not in dispute, as admitted by the complainant himself, that the signature on the Power of Attorney is that of her sister [ENTITY], but the same was obtained by misleading her. If the signature of the executant is not in dispute, then the question would be, whether the document would fall within the ambit of a false document under [SECTION] of the [ACT]. In the absence of the document itself, the learned Magistrate ought not to have taken cognizance and ordered issue of process of the offence under [SECTION], [SECTION] and [SECTION] of the [ACT].
The second question that falls for my consideration is, whether the learned Magistrate was justified in issuing the non-bailable warrant simultaneously along with the order of process. This issue is no longer res integra in view of the Supreme Court decision in the case of [PRECEDENT]. I need not go into the merits of this issue because I am inclined to quash the order of process on the very first ground itself.
[CASE NUMBER] ORDER In the result, this application succeeds and is hereby allowed. The order dated 3rd January 2014 passed by the Judicial Magistrate, First Class, Mandvi, Kachchh, in [CASE NUMBER] is hereby ordered to be quashed. The further proceedings of the Criminal Case also stands terminated.
Rule is made absolute. Direct service is permitted.
([ENTITY], J.) [ENTITY]