( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 422 OF 2009 WITH CRIMINAL WRIT PETITION NO. 423 OF 2009 WITH CRIMINAL WRIT PETITION NO. 424 OF 2009 WITH CRIMINAL WRIT PETITION NO. 454 OF 2009 * * * * * CRIMINAL WRIT PETITION NO. 422 OF 2009 WITH CRIMINAL WRIT PETITION NO. 423 OF 2009 WITH CRIMINAL WRIT PETITION NO. 424 OF 2009 Mahendra s/o. Kanhaiyyalal Jain .. Petitioner Age 47 years, Occ. Business, R/o. 176, Ponam Peth, Jalgaon, Dist. Jalgaon. Versus 1. Vivek s/o. Manohar Jagtap .. Respondents Age. 40 years, Occ. Service, Residing at Mahavir Nagar, Near Milk Federation, Jalgaon. 2. Suresh s/o. Bansilal Jain, Age. 43 years, Occ. Business, Residing at 16, Ponam Peth, Jalgaon. 3. The State of Maharashtra ( 2 ) Shri K.C. Sant, Advocate for the petitioner. Shri V.B. Patil, Advocate for respondent No.1. Shri Vijay Sharma, Advocate for respondent No.2. Shri B.V. Wagh, A.P.P. for respondent No.3/State. WITH CRIMINAL WRIT PETITION NO. 454 OF 2009 Mahendra s/o. Kanhaiyyalal Jain .. Petitioner Age 47 years, Occ. Business, R/o. 176, Ponam Peth, Jalgaon, Dist. Jalgaon. Versus 1. Vivek s/o. Manohar Jagtap .. Respondents Age. 40 years, Occ. Service, Residing at Mahavir Nagar, Near Milk Federation, Jalgaon. 2. Suresh s/o. Bansilal Jain, Age. 43 years, Occ. Business, Residing at 16, Ponam Peth, Jalgaon. 3. Surendra s/o. Nathumal Lunkad, Age. 60 years, Occ. Business, R/o. Lunkad Tower, Pandey Dairy Square (Chowk), Jalgaon, Tal. & Dist. Jalgaon. 4. The State of Maharashtra Shri K.C. Sant, Advocate for the petitioner. Shri V.B. Patil, Advocate for respondent No.1. Shri Vijay Sharma, Advocate for respondent No.2 & 3. Shri B.V. Wagh, A.P.P. for respondent No.4/State. ( 3 ) CORAM : P.R. BORKAR,J. DATED : 14.01.2010 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith. With consent of learned counsel appearing for the parties, these writ petitions are taken up for final hearing. 2. These four writ petitions are filed by original complainant Mahendra Kanhaiyyalal Jain being aggrieved by the decisions of Sessions Judge dated 05.03.2009 in Criminal Revision Application Nos. 187, 185, 186 and 188 of 2008 respectively, whereby he allowed the Revision Applications and set aside the order of issuance of process passed by the Chief Judicial Magistrate, Jalgaon, on 15.04.2008, in R.C.C. Nos. 179, 177, 178 & 180 respectively, thereby the learned Chief Judicial Magistrate issued processes against the respondents other than the State of Maharashtra, for committing offences punishable under sections 465, 467, 471 & 474 all read with section 34 of the Indian Penal Code (“I.P.C.”). ( 4 ) 3. Some of the facts regarding which there was no more dispute before me are that the complainant was member of Shri Mahavir Urban Co-operative Society Limited, Jalgaon (hereinafter referred to as “credit society”). The credit society is doing banking business at Jalgaon. Respondent Suresh Jain was President (Chairman) of said credit society and he resigned on 02.01.2007 and thereafter respondent No.1 – Vivek Jagtap was appointed as an Administrator. He took charge on 15.01.2007. All these four writ petitions pertain to four complaint lodged by same complainant i.e. present petitioner, who is common in all four writ petitions. Thus writ petition No. 422 of 2009 relates to minutes of meeting of Board of Directors held on 03.07.2006, writ petition No. 423 of 2009 relates to minutes of meeting of Board of Directors held on 25.03.2006, writ petition No. 424 of 2009 relates to minutes of meeting of Board of Directors held on 22.04.2006 and writ petition No. 454 of 2009 relates to minutes of meeting of Board of Directors held on 03.08.2006. It is case of the petitioner that his brother Jitendra was also member of the credit society and as against Jitendra several proceedings such as complaint for offence punishable ( 5 ) under section 138 of the Negotiable Instruments Act, so also for recovery of loan and other civil matters were filed by the credit society. The petitioner and his brother had doubts regarding genuineness and correctness of the document and transparency of the administration from time to time. Jitendra Jain, brother of the petitioner applied for getting copies of minutes of above said four meetings of Board of Directors on 18.01.2007. Just prior to that on 15.01.2007 respondent Vivek Jagtap had taken over charge as an Administrator and the copies were supplied to Jitendra and respondent Vivek Jagtap signed those copies as true copies. Thereafter, on 13.02.2007 present petitioner also made application for getting copies of minutes of above said meetings and also some other documents and he also received copies. On comparison of the copies received by Jitendra and the petitioner, it was found that in the copies of minutes supplied to Jitendra Jain, there were no signatures made by respondent No.2 Suresh Jain – Chordiya, but same were appearing in the copies supplied to the petitioner. There were signatures of respondent No. 2 – Suresh Jain – Chordiya made for showing his presence at the meetings and also as a Chairman of the credit society. In the copy of minutes of ( 6 ) meeting on 03.08.2006 supplied to the petitioner, respondent Surendra Lunkad was seen to have signed showing his presence but there was no signature of respondent – Suresh Lunkad on the copy supplied to Jitendra Jain. This according to present petitioner amounted to commission of various offences for which the learned Chief Judicial Magistrate has issued processes. 4. It may also be noted that before issuing process, after verification of complaints, the learned Chief Judicial Magistrate passed order directing inquiry under section 202 of the Cr.P.C. and report of the police was received. Thereafter, on consideration of complaint, verification and police report, said orders of issuance of processes were issued by the learned Chief Judicial Magistrate. As against said orders of issuance of processes in all four complaints, criminal revision applications were filed in the Sessions Court, Jalgaon. The learned Sessions Judge came to a conclusion that necessary ingredients of the offences were not disclosed and issuances of processes was not proper and he allowed the revision applications and set aside orders of issuance of processes. As against the same, these writ ( 7 ) petitions are filed. 5. Before we go to the actual discussion of the arguments and the law relevant for decision, it is necessary to reproduce other contents of the complaint, which are identical in all complaints, besides the things stated above. In para 6 of the complaint, it is stated that there were signatures of respondent No.2 Suresh Jain – Chordiya for remaining present at the meetings and also as a Chairman of the credit society on the copies of minutes of meetings supplied to present petitioner. In para 7 it is stated that after 15.01.2007 onwards the proceeding book of the credit society was in possession of respondent No.1 – Vivek Jagtap as an administrator of the credit society and without his consent, connivance or aid, respondent No.2 – Suresh Jain – Chordiya or Surendra Lunkad could not have signed. It is also argued that the very fact that there was no signatures of respondent No. 2 – Suresh Jain – Chordiya or of Surendra Lunkad on the copies supplied to Jitendra Jain, but they were there on the copies supplied to the petitoner indicates that those were made in between 18.01.2007 to 02.03.2007 when the petitioner received copies and this shows sharing of common ( 8 ) intention. It is also stated in para 8 of the complaint that subsequent signatures were made in regularizing the proceedings. It is stated in para 9 of the complaint that the proceedings are valuable documents and making false entries therein is a forgery. In para 10 of the complaint it is stated that the complainant has proved that signatures were made later on and forgery need not be for causing wrongful loss to the complainant. Then it is said that there is no bar of Section 197 of Cr.P.C. 6. The processes were issued for offence punishable under section 465, 467, 471, 474 read with section 34 of the I.P.C. and these are all offences related to forgery and aggravated form thereof. Thus, section 465 of the Indian Penal Code provides punishment for forgery. Section 467 of the I.P.C. relates to offence of forging documents which are valuable, security or will etc., while Section 471 of the I.P.C. relates to using forged documents as genuine. Section 474 of the I.P.C. deals with possessing any document knowing it to be forged and intending to use it is as genuine. Section 463 of the I.P.C. defines forgery as follows:- ( 9 ) “S. 463. Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.“ 7. Section 464 of the I.P.C. defines making of false document and for our purpose following portion of section 464 of the I.P.C. is relevant. “464. A person is said to make a false documenr or false electronic record - First – who dishonestly or fraudulently - (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any digital signature or any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, ( 10 ) sealed, executed or affixed; or Secondly. - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or x x x x x x Explanation 1 - Signature of his own name may amount to forgery. x x x x x x” 8. The analysis of above said sections 463 and 464 clearly indicates that a person is said to make false documents if he dishonestly or fraudulently signs or without lawful authority, dishonestly or fraudulently alters a document. The words “dishonestly” and “fraudulently” are defined under section 24 and 25 of the I.P.C. The word “dishonestly” is defined as “whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing, ‘dishonestly’”. “Fraudulently” is defined as “a person is said to do a thing fraudulently if he does that thing with ( 11 ) intent to defraud but not otherwise”. So, “dishonestly” and “fraudulently” are essential ingredients of offences for which orders of issuance of processes were passed by the learned Chief Judicial Magistrate. 9. In this case the learned advocates for the petitioner and the respondents have taken me through the complaint, report of police under section 202 of the Cr.P.C. and its accompaniments. Police have given report under 202 of the Cr.P.C. that no offence of forgery was disclosed. It is rightly argued by the learned advocate Shri K.C. Sant that the learned Chief Judicial Magistrate was not bound by the report of Police and he could have formed his own opinion on the material placed before him. The learned advocate Shri Vijay Sharma stated that absolutely there is no whisper how the act of signing minutes, may be belatedly, was dishonest or fraudulent. It is not case of the complainant that at the concerned meetings of the Board of Directors, respondent No.2 Suresh Jain – Chordiya or Surendra Lunkad was not present. It is not his case at any stage that any of the resolution mentioned in the meetings was added, deleted, changed or altered. So, merely signing a document in absence of proof ( 12 ) that act was done dishonestly or fraudulently, does not amount to any offence. 10. The learned advocate Shri K.C. Sant for the petitioner stated that signatures on the minutes of meetings were put long after meetings. Respondent No.2 – Suresh Jain – Chordiya and Surendra Lunkad made signatures when the documents were in possession of respondent No.1 – Vivek Jagtap, who was an Administrator. Respondent No.1 should not have given access of the document to any one without authority. So, under these circumstances, there is some dishonest intention. It is difficult to believe that one would make signature without absence of any dishonest intention. In my considered opinion it is one thing to say that there might be some dishonest intention and it is another thing to say that the complaint, verification or the material collected by Police in inquiry under section 202 of the Cr.P.C. disclose such intention. 11. On the other hand it is argued by Adv. Shri Vijay Sharma that this complaint is filed with ulterior and mala fide intention. He produced on record report of police ( 13 ) submitted under section 202 of the Cr.P.C. and its accompaniments, which are taken on record today. He referred to letter dated 11.12.2006 addressed by the Special Recovery Officer of the credit society to the District Deputy Registrar, Co-operative Societies, Jalgaon. Therein, it is stated that present complainant and members of his family have taken loans of lakhs of rupees. He gave details of the amounts owed and it is stated that total amount of Rs. 2,27,57,441/- were due. Allegations are made against the petitioner of blackmailing the credit society on the basis of information collected under the Right to Information Act etc. Adv. Shri Vijay Sharma also stated that as per police report, police made inquiry with the Dy. Registrar, Co-operative Societies, Jalgaon and as per letter dated 04.01.2007 it was informed that there was no period mentioned in bylaws or any other provisions of law within which signatures of the Chairman or other members should be obtained on the minutes of meetings. 12. Several authorities are cited by both sides. Adv. Shri Vijay Sharma cited case of Vaidya Kuldip Raj Kohil V/s. She State of Maharashtra, 2002 Vo. 104 (2) Bom.L.R.418. In ( 14 ) that case this Court has observed that where in a private complaint investigation by police was directed and the report discloses no offence, Magistrate issues process without application of mind, it would be misuse of process of law. It is argued by Adv. Shri Sharma that while passing order of issuance of process, the magistrate ought to have stated what new material has come before him, which made him to think that this was a case of issuance of process. Earlier the Magistrate has observed while passing order on 26.07.2007 that investigation was required to be done by the concerned police for the purpose of deciding whether or not there is sufficient ground for proceeding and therefore he directed inquiry under section 202 of the Cr.P.C. by the concerned police. Therefore, in the order of issuance of process, the Magistrate ought to have mentioned what new material was there, on the basis of which he felt that prima facie case of issuance of process was made out. Adv. Shri Sharma has referred to para 18 of the judgment passed by the Sessions Judge. 13. The learned advocate Shri K.C. Sant for the petitioner cited case of U.P. Pollution Control Board V/s. ( 15 ) Dr. Bhupendra Kumar Modi and Another, (2009) 2 S.C.C.147. In paras 39 to 41 of the said case, following observations are made:- “39. It is our endeavour to point out that the High Court has quashed the complaint arising in an environmental matter in a casual manner by exercising power under Section 482 Cr.P.C. This Court has held that exercise of power under Section 482 of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e. (a) to give effect to an order of the Court; (b) to prevent abuse of the process of the Court; (c) to otherwise secure the ends of justice. 40. It is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto. 41. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether ( 16 ) on a reasonable appreciation of it the accusation would not be sustained. To put it clear, it is the function of the trial Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Criminal Procedure Code. x x x x x x x “ 13. In the case of M/s. India Carat Pvt. Ltd., V/s. State of Karnataka and Another, AIR 1989 S.C. 885, the Supreme Court has observed in para 16 that the Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating given an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case. Adv. Shri Vijay Sharma argued that no new material was placed before ( 17 ) the Magistrate to hold that there was sufficient ground to proceed against the accused. 14. In the case of Mahendra Saw alias Mahendra Kumar Sahu V/s. State of Bharkhand, 2006 Cri.L.J. 1974, Single Bench of Jharkhand High Court has laid down that at that stage of enquiry, magistrate is expected to see only whether there are sufficient grounds for proceeding against accused for an offence. He cannot go into truth or otherwise of allegation made in complaint. Order dismissing complaint by giving a finding that evidence of witness found to be unbelievable was set aside. In the present case dishonest or fraudulent intention in making signature is not spelt out by material on record. 15. Case of Soma Chakravarty V/s. State (Th. CBI), 2007 AIR SCW 3683 was cited. In para 21 of the said case it is observed that appellant’s advocate contended that in view of the earlier decisions no charge could be framed against the appellant as there was no material to show that she was prima facie guilty or had any mens rea. The Court disagreed. In the facts of the case, it is held that there was mens rea and ( 18 ) prima facie evidence. 16. In People’s Union for Civil Liberties and Another V/s. Union of India, 2003 AIR SCW 7233, paras 25 and 27 would be relevant. That was case under POTA and there is presumption regarding knowledge of terrorist act for possession as can be seen from para 27. Section 4 presupposes conscious possession. In para 25 it is observed that “Mens rea” element is sine qua non for offences under I.P.C. 17. Another case cited by the learned advocate Shri Sharma is Mohammad Atullah V/s. Ram Saran Mahto, AIR 1981 S.C. 1155. In that case it is laid down that in case the Magistrate directed investigation in to a complaint under section 202 of Cr.P.C. and when the report merely stated that prima facie case is made out against some persons, but not against others and no details were given, unless there is additional material before the Magistrate, taking cognizance of order of issuance of process is illegal. 18. In the case of Mahindra & Mahindra Financial ( 19 ) Services Limited and Another V/s. Rajiv Dubey (2009) 1 S.C.C. 706, in para 19, case of State of Haryana V/s. Bhajan Lal, AIR 1992 SC 604 is cited. Adv. Shri Sharma submitted that the case falls under cluase 1 and 7 of para 102 of case of Bhajanlal. He argued that allegations made in the complaint, even if they are taken on the face value and accepted in its entirety do not constitute any offence of forgery as main ingredients of the offence are missing. He also argued that criminal proceedings are initiated by the petitioner with ulterior motive. They are maliciously instituted with ulterior motive to bring pressure on respondent Nos. 1 and 2 to take back proceedings for recovery of loans initiated against the petitioner and members of his family and therefore this Court should not interfere with the orders passed by the Sessions Judge. 19. Last case cited before this Court is Jagdish Ram V/s. State of Rajasthan and another, 2004 AIR SCW 1342. In that case it is laid down that at the stage of taking cognizance of offence, Magistrate is required to consider whether there are sufficient grounds exist or not for further proceeding in the matter. ( 20 ) 20. After considering arguments advanced before this Court and considering the complaints and verification and police enquiry papers, in my opinion, it is not proved that in making signatures on minutes of meetings of Board of Directors, there was any dishonest or fraudulent intention. It is not that decisions taken in the meetings were in any way altered or changed or any resolution was added or deleted. It is not case of the petitioner that at said meetings, respondent No.2 was not present. It is also not case that respondent No.3 in Writ Petition No. 454 of 2009 was not present at the meeting held on 03.08.2006. In the circumstances, in my opinion, these writ petitions deserve to be dismissed. 21. In the result, the writ petitions are dismissed. Rule discharged. sd/- [P.R. BORKAR,J.] snk/2010/JAN10/crwp422.09 “AUTHENTICATED COPY” (S.N. KULKARNI) P.A. TO HON’BLE JUDGE