CR.MA/903/2002 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 903 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = HINABEN POPATLAL SHAH & 6 Versus BHARATIBEN PARSOTAMDAS PATANI & 1 ========================================= = Appearance : MR PS CHAMPANERI for Petitioners RULE SERVED for Respondent No.1 MR MR MENGDEY APP for Respondent No.2 ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA CR.MA/903/2002 2/13 JUDGMENT Date : 24/07/2008 ORAL JUDGMENT [1] This petition is filed under Section 482 of the Code of Criminal Procedure to quash and set aside the process issued by the Court of Chief Judicial Magistrate, Surendranagar in Inquiry Case No.39 of 2000, thereafter registering the same as Criminal Case No.24 of 2002 in pursuance of the complaint filed by the respondent No.1. The peculiar brief facts which appears from the record are that the complainant – respondent No.1 filed the above said complaint in all against eight persons, out of them seven are petitioners herein for the offences punishable under Sections 420 and 506(2) of the Indian Penal Code and for the offence punishable under Section 3(10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It was stated in the complaint by the complainant that original accused Nos.1, 2, 3, 5 and 8 happened to be brothers and sisters. Original accused Nos.6 and 7 happened to be husbands of sisters of accused Nos.2 and 3, while accused Nos.4 and 5 were relatives. Accused Nos.2, 3, 4, 5, 6, 7 and 8 approached complainant at her office for professional advise, as complainant is an Advocate and accused stated to her that accused No.1 – Heenaben had married to Ashvinbhai at Surat and Ashvinbhai had filed a petition for divorce in the Civil Court, at Surat. It was stated by the accused to the complainant that notice of the said proceedings was received by them at Vichhiya. But accused No.1 – CR.MA/903/2002 3/13 JUDGMENT Heenaben sister of accused Nos.2 and 3 was not at Vichhiya. According to the complainant, she was engaged by them to find out where Heenaben was and it was found by her that in pursuance of the order passed by the Competent Court, Surat, Heenaben was admitted to the mental hospital. She was engaged by the accused to take the custody of Heenaben after following procedure which was done by her. It was the statement, in the complaint, of the complainant that original accused No.4 being Doctor, when fees were demanded by her for professional work, gave assurance that she was being engaged by them to represent Heenaben in the said divorce proceedings and that fees will be paid to her. Therefore, according to the complainant, she appeared in Hindu Marriage Petition No.49 of 1998 at Surat, in Misc. Criminal Application No.256 of 1998 at Surendranagar which was filed by Heenaben for the maintenance, in Misc. Criminal Application No.204 of 1998 filed by Heenaben for the custody of minor son Samir and represented Heenaben and accused in the said proceedings. The complainant also narrated how those proceedings came to an end. She further alleged that while accused No.1 and accused No.2 to 8 were visiting her office at Surendranagar, they were requested by her to pay her professional fees for the services rendered by her in the above said proceedings. According to the complainant, all the accused assured her that all the professional fees would be paid to her. Ultimately, on 19.09.2000 by consent, marriage of Heenaben came to be dissolved and in pursuance of the said order, accused No.1 received Demand CR.MA/903/2002 4/13 JUDGMENT Draft of Rs.5,00,000/- for maintenance. Even after this amount was received by the accused, according to the complainant, she made demands for her professional fees and expenses which she incurred in the above mentioned proceedings which was to the tune of Rs.60,000/-. But after the proceedings were over, accused came to her office and totally refused to pay the amount. The complainant has further stated that all the accused eight in number threatened her to the extent that the complainant was staying in the town of Baniyas and why was she demanding the amount of fees from Baniyas. It is the statement of the complainant that she was also threatened by the accused that the complainant being a lady staying alone was likely to be killed by the accused. The accused No.4 being a politically influential person frequently threatened to the complainant. According to the complainant, accused also insulted by her caste and, therefore, the above said complaint. [2] The above complaint being filed on 03.11.2000 and inquiry was held in pursuance of Section 202 of the Code of Criminal Procedure by the learned Magistrate and ultimately, vide order dated 07.01.2002, learned Magistrate came to the conclusion that having regard to the material placed during inquiry and the documentary list produced, it was expedient to issue summons against the accused for the offences punishable under Sections 420 and 506(2) of the Indian Penal Code. As there was a prima facie case for these charges against the accused and hence, the learned CR.MA/903/2002 5/13 JUDGMENT Magistrate directed to register the complaint and issue summons and hence this petition before this Court. [3] Learned advocate Mr.Y.V.Vaghela on behalf of learned advocate Mr.P. S. Champaneri for the petitioners was heard in great detail. None is present on behalf of the respondent No.1 , though notice is served upon her. Learned APP Mr.M.R.Mengdey for the respondent No.2 – State was heard in detail. [4] Learned advocate for the petitioners submitted that the complaint is false and frivolous. It is submitted that the learned Magistrate was pleased to issue summons for the offences punishable under Sections 420 and 506(2) of the Indian Penal Code. It is submitted that for making out the case under Section 420 of the Indian Penal Code, what is necessary is cheating and dishonestly inducement on the part of the person so deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security. It is submitted that ingredients of the offence of cheating as has been specified under Section 415 of the Indian Penal Code, denotes that cheating means whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person. It is submitted that even bare reading of the complainant, it is nowhere established by the CR.MA/903/2002 6/13 JUDGMENT complainant that the complainant was deceived or induced so as to deliver any property or any valuable security or anything as mentioned in Section 415 or Section 420 of the Indian Penal Code. What is crystal clear from the above that at the most complainant demanded professional fees and the accused assured her that fees would be paid to her and ultimately refused. This fact does not constitute the offence as has been mentioned in Section 415 and Section 420 of the Indian Penal Code. Learned advocate for the petitioners submitted that the allegation under Section 506(2) of the Indian Penal Code is totally misconceived and false. No such threats were given by the clients to the advocate as has been stated in this complaint, as the facts disclosed, are totally false from bare reading, no offence is made out even if the complaint is taken as it is. Therefore, it is submitted that Criminal Case be quashed as prayed for. [5] As against that, learned APP Mr.M.R.Mengdey for the respondent No.2 – State, relying upon the decision of Central Bureau of Investigation Vs. K. M. Sharan, reported in (2008) 4 S.C.C. 471, submitted that the scope of the power under Section 482 of the Code of Criminal Procedure is limited and related to the abuse of the power of the Court and to meet the end of justice. It is submitted that while exercising the powers under Section 482, High Court is not supposed to embark upon the enquiry whether the allegations in the complaint are reliable or not and, therefore, to CR.MA/903/2002 7/13 JUDGMENT render definite finding about truthfulness or veracity of the allegations. [6] Having heard learned advocates for both the parties in respect of this petition, it clearly appears that the complaint and the Criminal Case which is instituted upon the present petitioners, is based upon the transaction which is professional fees of the complainant being an advocate and having represented accused No.1 in certain proceedings. There cannot be any doubt about the principles, that, while exercising power under Section 482 of the Code of Criminal Procedure, it is to be noted that those powers are limited to the consideration that whether allegations made in the FIR or complaint or the charge-sheet if taken on their face value and accepted in their entirety, would prima facie constitute an offence for making out the case against the accused. While, undertaking this exercise, the High Court is not supposed to embark upon the enquiry whether the allegations in FIR, complaint or in the charge- sheet were reliable or not and the High Court is not supposed to render definite finding, as to truthfulness or veracity of the allegations. [7] However, examining the matter on the factual matrix, it is disclosed that the relationship between the accused and the complainant was of advocate and clients. The complainant was CR.MA/903/2002 8/13 JUDGMENT advocate engaged by the accused to represent accused No.1 in certain proceedings. Last proceedings came to an end on 19.09.2000 whereby the accused No.1 obtained divorce by consent and a Demand Draft of Rs.5,00,000/- towards the amount of maintenance was received by accused No.1. It is the case of the complainant that during the period from November – December, 1997, when the custody of accused No.1 was obtained by the accused through the proceedings where complainant represented accused and, thereafter, during other proceedings, as well where she was engaged by the accused to represent accused No.1, demand was made by the complainant about her professional fees, but accused did not pay fees, but gave assurance that her professional fees would be paid to her. Ultimately, when divorce proceedings and last proceedings came to an end where the complainant was representing accused, the complainant demanded Rs.60,000/- towards her professional fees and miscellaneous expenses. Thereupon, she met with the threats and blunt refusal to pay any amount by the accused. From this fact, learned Magistrate issued summons for the offences punishable under Sections 420 and 506(2) of the Indian Penal Code and directed to register the complaint as Criminal Case. [8] Now so far as the complaint containing allegations under Section 420 of the Indian Penal Code is concerned, it clearly appears that the transaction between the complainant and the accused was CR.MA/903/2002 9/13 JUDGMENT about paying of the advocate fees and nothing beyond that. When the ingredients of the offence under Section 420 and ingredients of cheating under Section 415 of the Indian Penal Code is seen, it becomes clear that if the contentions of the complainant and the averments are taken as it is without embarking upon any inquiry, it is clear that there was no inducement on the part of the accused to deceive the complainant to deliver any property to the acussed. None of the ingredients of Section 420 is disclosed from the averments made in the complaint by the complainant. It is not necessary to refer here the definition of Section 420 of the Indian Penal Code. Simply attributing accused to the extent that accused were giving assurances from time-to-time to the complainant that they would pay the professional fees of the complainant, would not amount to any inducement within the meaning of Section 415 of the Indian Penal Code and it is admitted fact that no delivery had taken place of any property or any valuable security, in pursuance of that inducement or deception. Meaning thereby that complaint does not disclose, even if, the averments, are taken to be true which are made in the complaint, no offence under Section 420 of the Indian Penal Code. Transaction complained of is in respect of payment of professional fees and, ultimately, refusing to pay by the accused, they cannot be alleged to have deceived the complainant. [9] Now, so far as the allegations under Section 506(2) of the Indian Penal Code is concerned, there are averments made by the CR.MA/903/2002 10/13 JUDGMENT complainant in para-9 of the complaint that accused administered threat to the complainant to kill her. At this juncture again we shall refer the above stated principle that High Court should not embark upon the enquiry about truthfulness and the allegations made in the complaint and the complaint should be taken on its face value. Without deviating from this established principle, peculiar facts of this complaint are required careful dealing within the power under Section 482 of the Code of Criminal Procedure. The situation which emerges is, the complainant was engaged in certain proceedings by the accused to represent Heenaben. The complainant was demanding professional fees for appearing on behalf of the accused No.1 in the proceedings named in the complaint. The complainant attempted to obtained her professional fees when these proceedings were pending and were in process. It is the allegation that accused from time-to-time assured complainant that the professional fees of the complainant would be paid and she was not required to worry about that. At last proceedings pending between the parties, in which the complainant appeared on behalf of the accused, came to an end and when accused No.1 obtained Demand Draft of Rs.5,00,000/- at the end of decree of divorce for maintenance, the complainant demanded Rs.60,000/- as her professional fees and expenses which were refused by the accused. The threats to kill the complainant as has been complained of in para-9 has to be ascertained and dealt with as a sequence of the above situation. No inquiry should be made about the truth or CR.MA/903/2002 11/13 JUDGMENT otherwise allegations made in the complaint, but at the same time, inherent powers of the High Court under Section 482 are wide enough to prevent abuse of the process of any Court or otherwise to secure the ends of justice. When allegation in respect of threat to kill as averred in the complaint though requires to be dealt with without inquiry of its truth or otherwise, it must be kept in the mind that the said threat which is averred in a manner that it becomes sequence of the events, which have taken place before that, in respect of demand of professional fees by the complainant from the accused. While discussing those events, this Court has come to the definite finding that no case was prima facie made out by the complainant under Section 420 of the Indian Penal Code because from bare reading of the complaint, it clearly appears that the dispute was as to payment of professional fees to the complainant. The refusal of paying of professional fees and insistence on the part of the complainant, as per the say of the complainant, resulted in threat to kill her by the accused. The proceedings in which the complainant was appearing on behalf of the accused continued for about three years and, therefore, though the complainant has made averment in the complaint as to the offence under Section 506(2) of the Indian Penal Code and without embarking upon any inquiry with the sequence of the events are perused properly from the very peculiar circumstances of this case, it emerges that the allegation of threat to kill is nothing but wrecking of vengeance against the accused for the refusal of payment of Rs.60,000/- towards the professional fees CR.MA/903/2002 12/13 JUDGMENT and expenses incurred by the complainant in various proceedings on behalf of the accused No.1. Each case contains its own fact. No straight jacket formula to arrive at a decision that the allegations are made for wrecking vengeance, can be stated, but in this particular case and in particular facts of this case as discussed above, when the allegation of threat relates to the earlier events which do not constitute prima facie offence, as alleged by the complainant to be a serious offence in humble view of this Court, they are nothing but abuse of process of Court and this kind of process of law is covered by a decision of the Supreme Court, in the matter of State of Haryana and others Vs. Bhajanlal and others, reported in 1992 Supp (1) S.C.C. 335, wherein in paras- 102 and 103, the Apex Court set guidelines for exercising of powers under Section 482 of the Code of Criminal Procedure and guideline No.7 is as under. “[1] xxx xxx xxx [2] xxx xxx xxx [3] xxx xxx xxx [4] xxx xxx xxx [5] xxx xxx xxx [6] xxx xxx xxx [7] Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for CR.MA/903/2002 13/13 JUDGMENT wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” [10] In above view of the matter and for the reasons stated above, this application deserves to be allowed. Criminal Case No.24 of 2002 instituted by the respondent No.2 in the Court of learned Judicial Magistrate, Surandranagar which was registered as Inquiry Case No.39 of 2000 stands quashed and set aside along with the order passed by the learned Judicial Magistrate, Surendranagar below the complaint on 07.01.2002 to issue summons to the petitioners for the offences punishable under Sections 420 and 506(2) of the Code of Criminal Procedure. Rule is made absolute to the aforesaid extent. [J. R. VORA,J.] (vijay)