1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Writ Petition No.1516 of 2007 Prashant Kishor Mehta of Mumbai Indian Inhabitant aged 33 yrears, residing at Usha Kiran, 18th floor, 15, Carmichael Road, Mumbai 400 026. Through his Constituted Attorney Mr.Poshan Mannar, r/o Diamond House, 9, Vatcha Gandhi Road, Gamdevi, Mumbai 400 007. ..Petitioner Vs. 1. The State of Maharashtra 2. Vijay K. Mehta (Original Complainant) having his address at 91, Maker Tower, "L", Cuffe Parade, Mumbai - 400 005. ..Respondents Mr.Mahesh Jethmalani, Senior Counsel with Mr.Pranav Badheka, Mr.N.Dhilla, Mr.Shane Sapeco, Mr.Amey Nabar i/b. Hariani & Co. for petitioner. Mr. J.P. Yagnik, APP for respondent no.1. Mr.Amit Desai with Mr.Girish Kulkarni for respondent no.2. CORAM: B.H.MARLAPALLE, J. Reserved on : February 22, 2008. Pronounced on : March 10, 2008. ORDER: 1. Heard Mr.Jethmalani, the learned Senior Counsel i/b. M/s. Hariani & Co. for the 2 petitioner. 2. Rule. Mr. Kulkarni waives service for respondent no.2. Mr.J.P.Yagnik, APP appears for the respondent no.1 - State. 3. By consent of the parties, Rule is taken up for final hearing forthwith. 4. This petition is one more case arising from the family feud in the management of Lilavati Kirtilal Mehta Trust, founded by late Shri Kirtilal Mehta - the grandfather of the petitioner and father of the complainant. The petition is filed under Article 227 of the Constitution read with Section 482 of Cr.P.C. so as to invoke the inherent powers of this Court to quash the process order issued in Criminal Case No. 15/SW/2007 (Originally registered as Case No.143/M of 2006) on 27th April 2007 by the Addl. Chief Metropolitan Magistrate, 9th Court at Bandra for the offences punishable under Sections 465, 469, 471 and 420 read with Section 34 of IPC. 5. The petitioner is the original accused no.3 and the impugned order of issuance of process was at 3 the first instance challenged by him in Criminal Revision Application No.714 of 2007 before the Sessions Court at Greater Mumbai and the said Revision came to be dismissed on 9/7/2007. In the complaint filed by the present respondent no.2 for the offences punishable under Sections 465, 468, 469, 471 read with Section 34 of IPC, the complainant had prayed for sending the complaint for investigation under Section 156(3) of Cr.P.C. However, the learned Addl. Chief Metropolitan Magistrate by his order dated 15/7/2006 directed the complainant to examine himself under Section 200 of Cr.P.C. The complainant was dissatisfied with the said order and, therefore, he approached the Sessions Court in Criminal Revision Application No.856 of 2006, which was dismissed on 8/8/2006. The complainant filed Criminal Writ Petition No.1872 of 2006 under Article 227 read with Section 482 of Cr.P.C. before this court and the said petition came to be rejected summarily on 8/12/2006 by holding that a discretion vests in the Metropolitan Magistrate to proceed under Section 156(3) of Cr.P.C. or to take cognizance and record the complainant’s statement and then proceed further. The complainant, therefore, approached the Apex Court in SLP (Criminal) No.796 of 2007 which was also 4 dismissed on 19/2/2007. Thereafter on 27/4/2007 the learned Addl. Chief Metropolitan, 9th Court at Bandra was pleased to issue process against accused nos.1 to 4 for the offences punishable under Sections 420, 465, 469 and 471 read with Section 34 of IPC. 6. The petitioner - original accused no.3 states that the complaint does not disclose even a prima facie case of any offence for which the process has been issued by the learned Addl. Chief Metropolitan Magistrate and the complaint has been filed by the complainant only to harass him as the petitioner has already filed two criminal complaints against the complainant and, therefore, the complaint is nothing but an attempt to browbeat the petitioner. As per the complainant he is the Managing Trustee of Lilavati Kirtilal Mehta Medical Trust ("the Trust" for short) and on or about 6/10/2004 he along with the other Trustees received a notice dated 6/10/2004 under Section 138 of the Negotiable Instruments Act, 1881 from M/s. P.V. Nichani & Co., Advocates representing one Shri Atul Shah. From the contents of the said notice it appeared that the accused and others had approached Mr.Atul Shah for liasoning services with banks and financial institutions to 5 obtain loan of Rs.3.3 crores for accused no.2 - firm i.e. M/s. Hallmark Diamonds. The notice further stated that the cheque dated 6/9/2004 in the sum of Rs.15 lakhs and drawn on account of the Trust was dishonoured and the Trustees were shocked by this notice because the Trust never had any account with the City Union Bank at Khar (West) Branch, Mumbai nor had the Trust or any of the Trustees ever dealt with Shri Atul Shah and / or M/s. Acme Enterprises in any manner for any loan sought for by M/s. Hallmark Diamonds. On the very next day i.e. on 7/10/2004 the said Advocates addressed another letter to the Trust and the Trustees stating that the matter of the notice dated 6/10/2004 was settled as the said Atul Shah had returned the dishonoured cheque to the accused no.3. The complainant, therefore, alleged that the accused along with Mr.Kishor Mehta (father of the petitioner) and others had opened false and bogus account with the said Bank and also issued cheques of which the Trust had no knowledge and obligation. It was apprehended that the accused might have encashed the cheque drawn in favour of the Trust in the said fraudulent account and thereby misappropriated the amount to and legitimately receivable / belonging to the Trust. The Trust, 6 therefore, registered a complaint through their Advocate with the Addl. Commissioner, Economic Offences Wing, Mumbai on or about 18/10/2004 but the police did not take any action. The subject complaint before the learned Additional Metropolitan Magistrate was presented as late as on 15/7/2006 and it was prayed to send the complaint to the police for investigation under Section 156 (3) of Cr.P.C. since the alleged offences are serious and were done with an intention to harm the reputation of the complainant-Trust. The complaint further prayed for directing the police to submit its report to the court. 7. In the complaint it was stated, so far as the present petitioner is concerned, that he appeared to be the partner and/or in-charge of and responsible for the affairs of M/s. Hallmark Diamonds along with accused nos.1,2 and 4. In the order passed by the learned Additional Chief Metropolitan Magistrate on 27/4/2007 it was observed that in the notice dated 6/10/2004 it was informed to the complainant and other trustees that the accused nos.1 to 4 have handed over cheque dated 6/3/2004 for Rs.15 lakhs drawn on alleged bank account with the City Union 7 Bank, Khar West Branch, Mumbai under the covering letter dated 3/6/2004 and that on 7/10/2004 M/s.P.V. Nichani & Co. - Advocates had intimated that the cheque was returned to the present petitioner. The learned Additional Chief Metropolitan Magistrate by the said order was pleased to issue summons to the Branch Manager of the City Union Bank Ltd. under Section 91 of Cr.P.C. with directions to preserve and produce all the details about the documents regarding opening of the bank account in the name of Lilavati Kirtilal Mehta Medical Trust, Lilavati Hospital and Research Centre pertaining to cheque No.831257 dated 6/9/2004. The learned Additional Chief Metropolitan observed as under, while issuing summons to the bank under Section 91 of Cr.P.C.: ". With the help of aforesaid contentions and after hearing sufficient submissions made before me, apparently, preparing of false document for the act of forgery and that too for the purpose of harming the reputation of the trust as well as using of those false documents as genuine one, is found to have taken place in the course of alleged transaction. The knowledge of the said fact 8 brought to the complainant after service of the notice dated 6th October, 2004 obviously is giving cause of action and to that effect, prima facie case is made out for taking cognizance of the offence alleged to have been committed by accused nos.1 to 4. It is therefore, I am inclined to issue process under Sec. 204 of Cr.P.C. upon examination of the complaint in this matter for the offence punishable under Sec. 465, 469, 471, 420 read with Section 34 of the Indian Penal Code." . The learned Additional Sessions Judge, while rejecting the Criminal Revision Application, by his order dated 9/7/2007 observed, "....It appears that notice was issued through advocate who enjoy certain presumptions that what they have done, must have done under the instructions of their respective clients. The dispute was between Mr. Atul Shah and accused No.3 (present applicant). Notices were issued to third person. Later on matter was hushed up amicably. As third person was also 9 involved the said person was also concerned through letter sent by advocate and that is how complainant came into picture alleging that their image was manipulatively utilised for certain personal purpose. Thus, in my opinion it is not merely on the basis of allegations of complainant but since impartial agency has conveyed written message to the complainant, Ld. Trial Judge has found that prima facie case is made out against all the accused to proceed further. In the light of allegations in para 5 of the complaint, it cannot be said that exercise of jurisdiction by the Ld. Magistrate is perverse or incorrect. Therefore, in my opinion there is no merit in the revision application and no fault can be found with the order of Ld. Magistrate..." (emphasis supplied) . Para 5 of the complaint reads as under:- "5. Surprisingly on 7th October, 2004 the said M/s. P.V. Nichani & Co., addressed another letter inter alia to the Trust that the matter has been "amicably settled" and 10 that the said Mr. Atul Rasiklal Shah has returned the said cheque to the Accused No.3 abovenamed and that "misunderstandings" between the parties were mutually sorted out." 8. Mr. Jethmalani, the learned Senior Counsel for the petitioner, submitted that there was no specific allegation made against the petitioner either in the notice dated 6/10/2004 or the complaint submitted on 18/10/2004 with the Economic Offences Wing or in Criminal Case No.15/SW/2007, except in the criminal complaint, for the first time, it is stated that the petitioner appeared to be a partner of M/s. Hallmark Diamonds and in the communication dated 7/10/2004 the role attributed to the petitioner was that the dishonoured cheque was handed over to him. Mr. Jethmalani referred to the revision application memo before the Sessions Court and more particularly to the statement made on oath by the petitioner that he was not a partner of M/s. Hallmark Diamonds and there was no prima facie evidence placed either before the trial court or before the Sessions Court in support of the allegations that he appeared to be a partner of the said firm on whose behalf the dishonoured cheque was issued from the bank account 11 allegedly opened by way of illegal acts and, therefore, there is no triable case made out against the petitioner. In para 5 of the complaint it is alleged that Mr. Atul Shah had returned the said cheque to accused no.3 i.e. the present petitioner and beyond that there is no role attributed to the petitioner in opening the subject account with the City Union Bank Ltd. in the name of the Trust. Mr. Jethmalani points out that so far as the issuance of the cheque is concerned, the notice issued under Section 138 of the Negotiable Instruments Act, 1881 was withdrawn and what remained was the alleged offences pertaining to the opening of the bank account and issuance of the cheque. The learned Senior Counsel pointed out that the petitioner was not a signatory on the cheque nor was he the person who had entered into a contract with M/s. Acme Enterprises, leading to the issuance of the dishonoured cheque. Mr. Jethmalani further submitted that it would have been proper for the complainant to contact the bank and obtain the details of the account opened from which the dishonoured cheque was issued before the complaint was filed. In addition, the Trust could have taken appropriate steps by approaching the Charity 12 Commissioner or the Civil Court to obtain a restraining order from operating the said bank account. In short, it was submitted that a dispute which was purely of civil nature was sought to be made into a criminal case, and more so because the petitioner had already filed, in the meanwhile, two complaints against the complainant. In this regard Mr.Jethmalani referred to the judgment of the Supreme Court in the case of Indian Oil Corporation vs. NEPC India Ltd. and ors. [(2006) 6 SCC 736] [(2006) 6 SCC 736] [(2006) 6 SCC 736] and more particularly the following observations, on referring to the earlier decision in the case of G. Sagar Suri Vs. State of U.P. [(2000) 2 SCC 636]: ". While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen several family disputes also, leading to irretrievable breakdown of marriage/families. There is also an impression that if a person 13 could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. 9. On the High Court’s inherent powers under Section 82 of Cr.P.C., in the case of State of Bihar vs. Murad Ali Khan [1988 (4) SCC 655] [1988 (4) SCC 655] [1988 (4) SCC 655], their Lordships reiterated, "It is trite that jurisdiction under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes 14 before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not." . In the case of Dhanalakshmi Vs. R. Prasanna [AIR [AIR [AIR 1990 SC 494] 1990 SC 494] 1990 SC 494], their Lordships stated thus, "Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceeding instituted on complaint, exercise of the inherent power to quash the proceedings is called for only in 15 cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court." . In the case of Manjula Sinha Vs. State of U.P. & ors. [2007 AIR SCW 4555] [2007 AIR SCW 4555] [2007 AIR SCW 4555] a three Judge Bench reiterated the guiding principles to invoke the 16 powers under Section 482 of Cr.P.C. in the following words: "......While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of court or quashing of these 17 proceedings would otherwise serve the ends of justice." 10. On the touchstone of the above well settled principles regarding the powers of this court under Section 482 of Cr.P.C. and having regards to the allegations made in the complaint and as reproduced hereinabove, it is necessary to examine whether this is a fit case to quash the process issued against the petitioner on any of the grounds, namely, the complaint does not disclose any offence or is frivolous, vexatious or oppressive and the allegations do not constitute the offence or any of the offences, the cognizance of which has been taken by the learned Metropolitan Magistrate. At the same time, it has also to be examined whether the complaint suffers from mala fides and if any attempt has been made to abuse of the process of the court to allow any action which would result in injustice. Mr. Amit Desai the learned counsel for the respondent-complainant submitted that the learned Additional Sessions Judge has addressed to all the issues and dismissed the revision filed against the order of issuance of process and, therefore, this 18 petition is nothing short of an attempt in the form of a second revision made by the petitioner and on that ground itself it ought to be dismissed. In the case of Ganesh Narayan Hegde Vs. S. Bangarappa & ors. [1995 (4) SCC 41] [1995 (4) SCC 41] [1995 (4) SCC 41] the Supreme Court stated, "While it is true that availing of the remedy of revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisionary power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of court or that the interests of justice otherwise call for quashing of the charges..." 11. In the instant case, so far as the offence 19 under Section 138 of the Negotiable Instruments Act, 1881 is concerned, the same is not under consideration before the learned Additional Chief Metropolitan Magistrate. The complaint against the petitioner impleading him as accused no.3, at the first instance, proceeds on the basis that he appeared to be a partner of M/s. Hallmark Diamonds. Before the Sessions Court the petitioner specifically averred that he was not a partner of M/s. Hallmark Diamonds at the relevant time. In the reply filed before the learned Additional Sessions Judge the complainants did not bring any material to point out, even prima facie, that the petitioner was one of the partners of M/s. Hallmark Diamonds. The learned Additional Sessions Judge in para 6 of the impugned order dated 9/7/2007 observed, "The dispute was between Mr. Atul Shah and accused no.3 (present applicant)." . This observation of the learned Additional Sessions Judge is without any material before him and it is unknown as to wherefrom he formed this opinion that the dispute was between Mr.Autal Shah and accused no.3. The learned Additional Sessions Judge 20 referred to the averments made in para 5 of the complaint and stated very expressly and categorically that there was more than sufficient material before the learned Metropolitan Magistrate to satisfy that prima facie case was established to proceed against the petitioner. The averments made in para 5 of the complaint have been reproduced hereinabove and even prima facie they do not make out any case for offence under Sections 465, 469, 471 and 420 read with Section 34 of IPC. In the reply dated 7/10/2004, received by the complainant from M/s. P.V. Nichani & Co., the petitioner’s involvement was alleged to the extent that Mr.Atul Shah had returned the dishonoured cheque to the petitioner. Mr. Amit Desai the learned counsel for the complainants submitted that after summons were issued to the Bank, some additional documents have been placed on record and they are photocopy of the account opening form, photocopy of specimen signature card alongwith photograph, photocopy of Trust Deed of M/s. Lilavati Hospital and Research Centre along with Resolution copy, photocopy of account of M/s. Lilavati Hospital and Research Centre dated 17/8/2004 for stopping the payment of the cheque. Account No. 1390 opened in the name of Lilavati Kirtilal Mehta Medical Trust 21 with the City Union Bank Ltd., Khar (W), Mumbai for the period from 1/10/2002 to 26/10/2004 shows no transaction at all, except the deposit of Rs.5000/- while opening the said account. The said account was allegedly opened in the name of Lilavati Hospital and Research Centre and by two of the permanent trustees of the said Trust. 12. Section 463 of IPC defines "forgery" - whoever makes any false document or part of a document 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. Section 464 of IPC defines "making a false document" and Section 465 prescribes the punishment for the offence of forgery. Section 469 of IPC provides for punishment in case of forgery for the purpose of harming reputation and Section 471 of IPC states that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. 22 13. It was contended that the said introduction form has been signed by the present petitioner and, therefore, as per Mr.Desai, the petitioner was part of the larger conspiracy or the acts of forgery in opening the said account. So far as the issue of opening the account is concerned, whether two permanent trustees, who opened the said account, had the lawful authority to do so has not been decided by any authority, including the