Gujarat High Court
Ashwinbhai Hirabhai Patel vs State Of Gujarat on 15 June, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18419 of 2018
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2019
In R/CRIMINAL MISC.APPLICATION NO. 18419 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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ASHWINBHAI HIRABHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TEJAS M BAROT(2964) for the Applicant(s) No. 1
MR SK PATEL(654) for the Respondent(s) No. 2
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 15/06/2021
ORAL JUDGMENT
1. Heard learned Advocate Shri Tejas Barot for the applicant and Page 1 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 learned Additional Public Prosecutor Ms. Maithili D Mehta for the respondent no. 1-State and learned Advocate Shri S.K. Patel for respondent no.2- original complainant.
2. Issue Rule returnable forthwith. Learned Advocates waive service of rule on behalf of their respective respondents.
3. By way of present application the applicant seeks quashment of Criminal Complaint being FIR C.R. No.I- 37 of 2018 registered with Shinor Police Station, Vadodara Rural Police Station on 17.08.2015 for the offence punishable under Sections 465 of the Indian Penal Code.
4. It is stated by the complainant in his complaint that his brother Sanjaybhai Jawaharbhai Patel married one Sheilaben daughter of Ramanbhai Becharbhai Patel residing at Village Pisai Taluka: Dabhoi and whereas the said marriage had been registered with the Registrar of Marriage, Akota vide registration No. 841 dated 24.09.2004. It is further stated that in the year 2005 his brother and sister-in-law had shifted to London and having settled there and having two children namely son Shish and daughter Sheena. It is further alleged that since last couple of years there were disputes going on between his brother and sister-in-law and there were cases filed in the London Court with regard to the same. The complainant Page 2 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 states that he is taking care of the joint family property wherein his brother also has got the share. He further states that he is Power of Attorney Holder of his brother. It is alleged that in a case filed in the London Court by the sister-in-law Sheilaben marriage certificate and certificate issued by the Fair Price Shop owner of village Manjrol showing the members of the family of the father of the applicant had been submitted and whereas the said certificates had been brought to the notice of the brother of the complainant and since his brother believed both those certificates to be false, he had sent the photos of the said certificates to the complainant for verification.
5. The complainant had verified the marriage certificate and upon inquiry the officials of Avakhal village which had allegedly provided the certificate of marriage had informed the complainant that such marriage had not been registered there and furthermore even the owner of the Fair Price Shop had informed the complainant about the certificates from Fair Price shop not having been given also. The complainant further submits that the said certificates had been allegedly forwarded from the mobile number of the applicant herein who is brother of Sheilaben, sister- in- law of the complainant to the mobile number of Shish i.e. nephew of the complainant on 06.02.2018 and whereas the same had been informed by the brother of the complainant and brother of the complainant had also informed that he Page 3 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 had asked his son Shish to give the mobile whereupon Shish had given the card with the mobile to the brother of the complainant from which card the certificate had been retrieved. Thus alleging the preparation of forged certificates the impugned criminal complaint has been filed.
6. The above-referred criminal complaint has been challenged by the present applicant by way of the present application.
7. It is submitted by the applicant that he is brother-in-law of Sheilaben, the applicant having married to the sister of Sheilaben. It is further submitted that he is the Power of Attorney Holder of Sheilaben and he is managing her affairs in India. It is submitted that the criminal complaint had been filed only with an intention of discouraging the present applicant from helping said Sheilaben who is estranged from her husband and i.e brother of the complainant. It is further submitted that it was infact the brother of the complainant who had forged marriage certificate and whereas in that regard an application had been preferred by father of Sheilaben before Gotri Police Station against four persons including the complainant and his brother as well as their parents. It is submitted that present complaint is a counter blast to such application. It is further submitted by the applicant that no forgery whatsoever has taken place and whereas since the complainant is alleging forgery then it was incumbent upon the complainant to show whether any Page 4 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 benefit has accrued to the applicant or Sheilaben by production of the said forged certificates. He further submits that forgery always implies benefit to the deceiver and corresponding loss or detriment to the person deceived. It is submitted that this is not the case here. Learned Advocate has further submitted that what is alleged to be forged is the marriage certificate and certificate given by Fair Price Shop owner allegedly showing list of member of family of father of the applicant. It is submitted by the learned Advocate for the applicant that the Court proceedings in London where the documents have allegedly been used was an application filed at the Family Court, Croydon Count Court by Sheilaben - sister-in-law of the complainant against Sanjaybhai - brother of the applicant inter alia alleging domestic violence. It is submitted that fact of the marriage between Sheilaben and Sanjaybhai not being disputed because it was for the complainant to show that what benefit had accrued to the said Sheilaben or to the applicant by forging the marriage certificate. Furthermore learned Advocate submits that the certificate by Fair Price Shop owner which allegedly shows list of family members of father of the applicant, has no relevance with the proceedings for domestic violence and whereas in case of the said document also the complainant has not come out clearly as to what benefit was accruing upon either Sheilaben or Sanjaybhai by forging such document.
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8. It is further submitted by learned Advocate that as such the complaint itself would not be maintainable since the documents alleged to have been forged were not used within the territory of India and whereas the complaint is filed on a bare statement of brother of the complainant that the applicant had sent the photos of the documents on the whats app to Shish - son of brother of the complainant and nephew of the complainant and those documents have been transmitted by brother of the complainant and to the complainant.
9. Learned Advocate has relied upon decision of the supreme Court in case of Dr. Vimla vs. Delhi Administration reported in AIR 1963 Supreme 1572 in support of his contention.
10. As against the same, learned Advocate Shri S.K. Patel on behalf of respondent no.2- original complainant has submitted that the applicant being Power of Attorney Holder of Sheilaben had allegedly forged the said documents to help Sheilaben in the litigation filed by her against her husband and whereas it is submitted that how the document have helped Sheilaben and the corresponding injury to the brother of the applicant, would be a matter of investigation and it is not for the complainant to submit all these at this stage. He further submits that the documents have been forged in India and not in England therefore it was incumbent upon Page 6 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 the police to investigate into the alleged crime.
10.1 Learned Advocate Shri Patel further submits that the complaint is not a counter-blast to the application given by father of Sheilaben against the complainant and his family members. Learned Advocate further submits that since the complainant has prima facie made out cognizable offence of forgery this Court may not interfere with the impugned complaint at this stage more particularly since the investigation is not yet complete. Learned Advocate has further submitted that this Court may not exercise jurisdiction under Section 482 of the Code of Criminal Procedure. In support of his submission he has relied upon the decision of the Supreme Court in case M/s Neeharika Infrastructure Pvt Ltd. vs. State of Maharashtra ( Criminal Appeal No. 330 of 2021) as well as the decision of Supreme Court in case of Skoda Auto Volkswagen India Private Ltd. vs. State of Uttar Pradesh & Ors. - 2020 Lawsuit (SC) 720.
11. Heard learned Advocates for the parties who have not submitted anything further.
12. From the perusal of the documents annexed with the application this Court finds a copy of proceedings filed before the Family Court at Cryudon County Court by sister-in-law of the complainant Sheilaben. What is Page 7 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 apparent from the complaint and the reply filed by brother of the complainant that the marriage between the said persons is not disputed nor anything turns on the date of the marriage, fact remains that the parties had married before they come to England. With this backdrop the Court is required to analyze whether a case of forgery punishable under section 465 of the Indian Penal Code is made out and whether the Court should interfere at the initial stage when the investigation has not taken place.
Section 463 of the Indian Penal Code states regarding 'forgery' and for the purpose of better appreciation Section 463 with regard to forgery and section 464 with regard to making of forged document are reproduced hereinbelow.
"463. Forgery.-- Whoever makes any false documents 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.
464 Making a false document. -- [A person is said to make a false document 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 [electronic signature] on any electronic record;Page 8 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021
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(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of document, electronic record or [electronic 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, sealed, executed or affixed; or Secondly --Who, without lawful authority, dishonestly or fraudu-
lently, 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 [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly --Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.]"
12.1 As can be seen in Section 463 forgery requires making of false documents etc with an intention to cause damage or injury to any person or public at large, or to support any claim or title or to cause any person to part with his property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed. In the instant case forged documents are allegedly used in the litigation in England. The question being whether the documents were forged with an intention to cause damage or to support any claim or title etc.
13. At this stage it would be relevant to note that the learned Advocate for the applicant had been required by this Court to submit, if necessary, after taking instructions as to whether any undue benefit has accrued in Page 9 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 favour of Sheilaben or whether her husband Sanjaybhai -brother of the complainant had suffered any loss on account of the forged documents having been allegedly placed before the Court at England in the proceedings referred to herein-above. Such query of this Court had remained unanswered and whereas while not examining the material meticulously to appreciate its sufficiency, this Court undertakes pima facie exercise to appreciate whether the brother of the complainant had indeed suffered any loss on account of alleged placement of forged documents before the Court of England. As found by this Court hereinabove, it is undisputed fact that brother of the complainant Sanjaybhai is married to Sheilaben whereas there is some dispute with regard to the date of marriage as seen from at the same time what would be relevant to note is that the factum of marriage has not been questioned by either parties. Moreover it is also clear that the parties are ad idem on the fact of the parties to the litigation in England i.e. Sanjaybhai and Sheilaben were married before they had shifted to England.
14. The issue of fraud and corresponding injury has been succinctly explained by the Hon'ble Supreme Court in a decision in case of Dr. Vimla vs. Delhi Administration reported in AIR 1963 SC 1572. The relevant paragraph nos. 5 and 14 are quoted as under:
"5. The word "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently". The former involves a Page 10 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 pecuniary or economic gain or loss while the latter by construction excludes that element. Further) the juxtaposition of the two expressions "'dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary enough. So too, if the expresssion "fraudulently' were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so. Should we hold that the concept of fraud" would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of "'fraudulently" it would be enough if there was a non- economic advantage to the deceiver or a non-economic loss to the deceived. Both need not co-exist.
"14. To summarize : the expression "'defraud" inoslves two elements, namely, deceit and injury to the person deceived. injury is something other than economic loss that is', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
14.1 From the observations of the Supreme Court in the judgement of Dr. Vimla vs. Delhi Administration (supra), the term defraud requires two elements namely 'deceit' and 'injury' to the deceived. Injury as stated by the Supreme Court is something more than economic loss and it includes any harm whatever caused to the present deceived. Injury as stated by the Supreme Court is something more than economic loss and it includes any harm whatever caused to any person body, mind or reputation or such others. Forgery as defined in Section 464 of the IPC requires an intention to commit fraud and whereas as explained by the Supreme Court in the Page 11 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 above judgement, for allegation of forgery to be satisfied, there has to be element of deceit and injury to the deceived. In the instant case from the discussion above, it is clear that the alleged forged marriage certificate as well as alleged forged list of members of the family of the complainant did not result in any benefit or advantage to Sheilaben in the proceedings at London and as such no corresponding injury has been caused to the brother of the complainant.
15. As regards the judgement relied upon by learned Advocate on behalf of the complainant, insofar as of the Supreme Court in case of Skoda Auto Volkswagen India Private Ltd. vs. State of Utta Pradesh & Ors. - 2020 Lawsuit (SC) 720, learned Advocate for the complainant has relied upon paragraph 41 which reads as under:
"41. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed, the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana vs. Bhajan Lal. 1992 Suppl. SCC 335 , the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta vs. State of Gujarat, (2001)7SCC 659, this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere."Page 12 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021
R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 It is submitted that since perusal of the First Information report leads to disclosure of an offence, this Court may not interfere with the complaint at the initial stage.
16. Furthermore learned Counsel has also relied upon the decision of the Supreme Court in case of M/s Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and others ( Criminal Appeal No. 330 of 2021) where the Supreme Court has set out the guidelines for the High Court while exercising jurisdiction under Section 482 of the Code of Criminal Procedure. Learned Advocate has submitted that the conclusion of the Supreme Court more particularly the conclusion where the Supreme Court has held that Courts would not thwart any investigation into cognizable offence and that the power of quashing should be exercised very sparingly and with circumspection and that criminal proceedings ought not to be scuttled at the initial stage and quashing of FIR should be in exceptional circumstances would be applicable insofar as the present scenario is concerned. Learned Advocate has submitted that since the complaint discloses prima facie, commission of cognizable offence, therefore this Court may not interfere at the initial stage and scuttled the proceedings by quashing the FIR. The decisions of the Supreme Court relied upon by the learned Advocate are definitely and undoubtedly binding on this Court and whereas only aspect to Page 13 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 be considered is whether the said judgements would be applicable insofar present case is concerned.
17. The complainant herein has alleged commission of offence under Section 465 of IPC and whereas this Court has examined the complaint from the aspect of whether the offence punishable under Section 465 of the IPC is prima facie made out or not and whereas from the discussion hereinabove, in the considered opinion of this Court no offence under Section 465 of the IPC is said to be made out. Moreover insofar as in case of M/s Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and others(supra), the Supreme Court has observed in Column No. xiv as under:
"xiv. However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint."
18. Thus the Hon'ble Supreme Court even in case of he Supreme Court in case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others ( supra) has recognized the power of the High Court to quash a complaint, subject to certain parameters set out by the Supreme Court itself. Page 14 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021
R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 18.1 The allegations in the complaint being that the applicant had forged two documents namely marriage certificate and certificate issued by owner of Fair Price Shop showing the list of family members of the complainant and whereas in view of the discussion hereinabove, more particularly the relevant decision of the Supreme Court in case of Dr. Vimla vs. Delhi Administration (supra), this Court has also held that since the documents forged were neither presented nor benefited to the complainant or presented any corresponding injury to the brother of the complainant, therefore the case of forgery cannot be made out against the applicant.
19. The Hon'ble Supreme Court in case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others ( supra) at paragraph no. 7.3 discussed about the celebrated decision of the Supreme Court in case of State of Haryana and Ors. vs. Bhajan Lal and Ors. reported in 1992 SCC Supl (1) 335. Para 7.3 is quoted herein for better position:
"7.3 Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:
"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section Page 15 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 7.4 In the case of Golconda Lingaswamy (supra), after considering the decisions of this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed and held as under:
"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code,
(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent Page 16 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything, it gives him that without which it cannot exist). 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 such abuse. It would be an abuse of the 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 or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.....
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20. Insofar as the decision of the Supreme Court in case of Bhajan lal (supra) the illustration (3) and (7) would be applicable in the present case. This Court notes that if the allegation made in the FIR are taken to be true then also they do not disclose commission of offence and make out a case against the applicant-accused. That as discussed hereinabove even also an offence of forgery punishable under Section 465 of the IPC is not made out. From the perusal of record it is clear that the present complaint impugned in the present petition is manifestly mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused. The accused being Power of Attorney holder and brother in law of Sheilaben and wheres father of Sheilaben having given complaint to the Police Inspector, Gotri Police Station, Vadodara on 05.04.2018 alleging forged memorandum of marriage which incidentally is produced with the present petition and as a counter blast the present complaint appears to have been lodged on 07.08.2008 inter alia alleging forgery of marriage certificate and another document.
In view of the discussion, finding and conclusion hereinabove, in the considered opinion of this Court FIR being C.R. No.I- 37 of 2018 registered with Shinor Police Station, Vadodara Rural Police Station on 17.08.2015 for the offence punishable under Sections 465 of the Indian Page 18 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021 R/CR.MA/18419/2018 JUDGMENT DATED: 15/06/2021 Penal Code and other consequential proceeding arising therefrom also stands quashed.
In view of above order, Criminal Misc. Application No. 1 of 2019 stands disposed of.
sd/-
(NIKHIL S. KARIEL,J) niru Page 19 of 19 Downloaded on : Mon Sep 06 16:12:54 IST 2021