Gujarat High Court
Tansukhlal Maneklal Chheda vs State Of Gujarat & on 10 December, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/4417/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 4417 of 2014
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TANSUKHLAL MANEKLAL CHHEDA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1
MR P P MAJMUDAR, ADVOCATE for the Respondent(s) No. 2
MR ALKESH N.SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/12/2014
ORAL ORDER
By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused no.1 seeks to invoke the inherent powers of this Court for quashing of the proceedings of the Criminal Case No.1 of 2014 pending in the Court of the learned Judicial Magistrate, First Class, Mandvi, District Kachchh.
It appears that the respondent no.2 lodged a private complaint in the Court of the learned Judicial Magistrate, First Class, Mandvi, District Kachchh, which came to be registered as Criminal Case No.1 of 2014. It also appears that the same was filed of the offence punishable under Sections 465, 467, 468, 471, 506(2) read with Section 114 of the Indian Penal Page 1 of 12 R/CR.MA/4417/2014 ORDER Code.
In the said complaint, the date and time of the offence alleged to have been committed is 10 th April 1990 till the date of the lodging of the complaint. The complaint was lodged on 7th December 2010. The learned Magistrate took cognizance upon the complaint and ordered police inquiry under Section 202 of the Code. It appears that to facilitate the inquiry, the learned Magistrate asked the Police Inspector of the Mandvi Police Station to carry out the inquiry in that regard. On receipt of the report from the Police Inspector of the Mandvi Police Station, the learned Magistrate thereafter proceeded to issue process under Section 204 of the Code of the offence punishable under Sections 465, 468, 471 read with Sections 34 and 114 of the Indian Penal Code. It also appears that simultaneously while ordering issue of process, the learned Magistrate also ordered issue of non-bailable warrant.
The case of the complainant in brief is as under :
The complainant claims to be the legal heir of one Hussain Mamu Jat who received a property bearing Revenue Survey Nos.453 and 391 situated at village Moa Layaja, Taluka Mandvi, under the provisions of the Section 7(3) of the Inami Abolition Act. The necessary Entry No.228 was mutated in the record of rights in that regard. Thereafter, on 10 th December 1974, on completion of the proceedings before the Special Mamlatdar, the Entry No.523 was ordered to be certified. According to the complainant, thereafter, Hussain Mamu Jat passed away and the names of his legal heirs came to be mutated in the revenue record. It is his case that Entry No.939 Page 2 of 12 R/CR.MA/4417/2014 ORDER was mutated in the village form no.6, wherein four names came to be entered as the legal heirs of late Hussain Mamu Jat. Such entry was mutated on 31 st January 1984. It is his case that in pursuance to the registered sale-deed dated 10 th April 1990 in favour of one Nemji Gangji by the Power of Attorney, viz. Tansukhlal Maneklal Chheda on behalf of Aminaben Hussain Jat, the entry was mutated in the village form on 6 th May 1991. Nemji Gangji Shah executed a general power of attorney in favour of Tansukhlal Maneklal Chheda (the applicant herein) on or about 6th October 1999. The village form nos.7 & 12 initially reflected the name of Aminaben Salim from 1984-85 till 1990-91. On or about 23 th March 2001, a sale- deed was executed in favour of Ramanbhai Maganbhai, Girdharbhai Maganbhai, Mithabhai Mohanbhai, Amrutbhai Maganbhai and Mansukhlal Hansraj, and pursuant to the sale- deed, Entry No.1915 came to be mutated in the revenue record.
It transpires that from 2001 till 2010, no proceedings took place. On or about 19th September 2009, the Circle Officer certified Entry No.2622 and cancelled Entry No.939. The Talati had issued notice under Section 135(D), wherein it is alleged that the signature of Aminaben was not obtained, whereas the signature of the accused was obtained.
It appears on plain reading of the verification of the complainant recorded on oath, which is at page 24, that her sister, viz. Aminaben, was lured to put her signature on the disputed document i.e. the Power of Attorney. It necessarily implies that the signature of Aminaben is not disputed so far as the document in question is concerned, however, the case of Page 3 of 12 R/CR.MA/4417/2014 ORDER the complainant is that such signature was obtained by misleading Aminaben.
Be that as it may. The only question that falls for my consideration in this application is, whether the learned Magistrate was justified in issuing the process of the offence punishable under Sections 465, 468 and 471 of the Indian Penal Code in the absence of the false document itself on record.
I have heard Mr.A.D.Shah, the learned advocate appearing on behalf of the applicant - original accused, Mr.P.P.Majmudar, the learned advocate appearing on behalf of the respondent no.2 - original complainant, and Mr.A.N.Shah, the learned APP appearing on behalf of the State.
It appears and very fairly accepted by Mr.Majmudar, the learned advocate appearing on behalf of the complainant, that the alleged false document is not on record. Although allegations have been levelled of having committed the offence of forgery, the document i.e. the Power of Attorney, alleged to have been fraudulently obtained from Aminaben has not been produced. Mr.Majmudar submits that the document is not in possession of his client. I fail to understand that in the absence of the document itself how is the complainant going to prove his case so far as the allegation of forgery is concerned. In the absence of the forged document produced on file, a person cannot be summoned only on a presumption. A trial of forgery cannot proceed in the absence of the documents alleged to be forged.Page 4 of 12
R/CR.MA/4417/2014 ORDER I do not propose to lay down as a proposition of law that in the absence of the document alleged to be forged the Court can in no case hold the offence of forgery. In this context, I may quote with profit a decision of the Supreme Court in the case of Rama Shankar Lal v. State of Uttar Pradesh, reported in (1971)3 SCC 905. I may quote some of the observations made by the Supreme Court in para 7 as under :
"In the circumstances, we refrain from raising any presumption from the non-production of the sale deed. However, the fact remains that we have not had the benefit of looking at the document alleged to have been forged, a circumstance which is material and which must, to a large extent, go against the prosecution. We do not mean to say that in the absence of the document alleged to be forged the court can in no case hold the offence of forgery to be established, but to claim such a finding in the absence of the document said to be forged, the evidence must in our view exclude all possibility of a reasonable doubt. This is in accord with the general principle of our jurisprudence."
Mr.A.D.Shah, the learned advocate appearing on behalf of the applicant has placed reliance on two decisions of the Supreme Court in this context : one, in the case of Guru Bipin Singh v. Chongtham Manihar Singh and another, reported in AIR 1997 SC 1448, and another, in the case of Ashok Chaturvedi and others v. Shitul H.Chanchani and another, reported in AIR 1998 SC 2796.
In the case of Guru Bipin Singh (supra), the Apex Court observed as under :
"6. We may now examine the contention that the allegations made in the complaint, even if true, do not make cut a case under the aforesaid penal sections. The basic allegation is that the appellant had forged the first Page 5 of 12 R/CR.MA/4417/2014 ORDER book by stating that is was based on the manuscript of the king thereby deceiving the Government to get it published for which purpose the assistance of Rs. 2,500 was given and which also induced many members of the public to buy the same believing it as genuine hereby depriving them of their money. Shri Jethmalani has urged that for an offence under section 465, the same has to be "forgery" as defined in section 463, whose first ingredient is making of "any false document or a part of a document". A person is said to make false document as per section 464, First - who dishonestly or fraudulently makes, signs scales or execute a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed;
or Secondly - xxx xxx xxx Thirdly - xxx xxx xxx Explanation 2 :- The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
7. It is urged by Shri Jethmalani that for making a false document, the person concerned has to make, sign, seal or execute the same. It is submitted that in the present case, even as per the complaint, the appellant had not move , signed, sealed or executed the alleged manuscript inasmuch as the allegation is that the appellant had passed on some writing as representing the same to be in the hand of the king. In the initial statement the complainant had stated that the appellant relied upon the fabricated book named above "Showing the same as genuine and claiming it as written by late Page 6 of 12 R/CR.MA/4417/2014 ORDER Maharaja Bhagachandra ........."
8. This shows that the allegations is that the appellant had represented some writing to be of the Maharaja, though in fact it was not so. It is not the allegation that the appellant had himself written the manuscript and represented it to be that of Maharaja. According to Dr. Ghosh, despite this being the position, requirement of 464 would be satisfied in view of what has been stated in Explanation shows that for it to get attracted "making of a false document" is essential; and it is this aspect which is missing in the present case, according to Shri Jethmalani. There is apparently force in the submission of Shri Jethmalani because, as already pointed out, it is not the allegation that it is the appellant who had made, signed, sealed or executed the writing in question. This apart, when we desired Dr. Ghosh to bring to our notice as to which writing of King Bhagyachandra was represented to belong to him, we were referred to a printed book titled "Rajarshi Bhagyachandra Govinda Sangeet Leela Vilasa". This book, however, is a Manipuri translation by one Pt. Braj Behari Sharma, we do not have the original.
9. In view of all the above, we agree with Shri Jethmalani that the allegations made in the complaint, even if true, do not make out the case of forgery. Now, if forgery be not there, allegations under section 420 would fail because the allegation in para 5 of the complaint is that by "forging the said book" deception was caused and members of the public were induced to purchase the same. So, forgery is the principal allegation; cheating being a consequential offence. If forgery goes, cheating cannot stand. So,the complaint sections, namely 420, 465 and 468. It may be pointed out that 468 is intimately connected with 420 and 465."
In the case of Ashok Chaturvedi (supra), the question before the Apex Court was, whether the allegations made in the petition of complaint together with statements made by the complainant and the witnesses before the Magistrate taken Page 7 of 12 R/CR.MA/4417/2014 ORDER on their face value constituted an offence, and just because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges, is he debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear. The Apex Court made the following observations as contained in para 5 of the report :
"But the question yet remains for consideration is whether the allegations made in the petition of complaint together with statements made by the complaint and the witness before the Magistrate taken on their face value, do make the offence for which the Magistrate has taken cognizance of? The learned counsel for the respondent in this connection had urged that the accused had a right to put this argument at the time of framing of charges, and therefore, this Court should not interfere with the order of Magistrate taking cognizance, at this stage. This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code he is debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised. Bearing in mind the parameters laid down by this Court in several decisions for exercise of power under Section 482 of the Code, we have examined the Page 8 of 12 R/CR.MA/4417/2014 ORDER allegations made in the complaint petition and the statement of the complainant and the two other witnesses made on oath before the Magistrate. We are clearly of the opinion that the necessary ingredients of any of the offence have not been made out so far as the appellants are concerned. The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been started and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complaint and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 and 120-B of the Indian Penal Code cannot be said to have been made out. This being the position the impugned order of the Magistrate taking cognizance of the offence dated 5.2.1996 so far as it relates the appellants are concerned cannot be sustained and the High Court also committed error in not invoking its power under Section 482 of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.96 taking cognizance of the offence as against the appellants stand quashed."
However, even otherwise, in my view, no case is made out to ask the applicant to face the trial. The accused no.2 Nemji Gangji Shah has passed away according to the report of the Police Officer dated 18th May 2011. According to the report, the first power of attorney purported to have been executed in favour of the applicant by Aminaben Jat was not traceable as the same was handed over to Nemji Gangji Shah (deceased) at the time of the execution of the sale deed on 10 th April 1990. The revenue record also shows the name of Nemji Gangji from the year 1991-92. The names of other accused i.e. accused nos.5 to 10 and Ramanbhai Maganbhai came to be reflected in Page 9 of 12 R/CR.MA/4417/2014 ORDER the revenue record after March 2001. The case of the complainant is that the accused nos.1 and 2 executed the power of attorney purported to have been given by Aminaben, and with collusion of the accused nos.3 to 5, the property was entered into the name of Nemji Gangji Shah. If these allegations are believed to be true, then the offence came to be committed in the year 1990 and thereafter in the year 2001. From 1990 till 2009, the complainant as well as the other legal heirs did not utter a single word and all of a sudden filed a complaint on 7th December 2010. In my view, in the absence of any evidence about the forgery of the power of attorney, the issuance of process on bare averments of the complainant after a period of more than 20 years is not tenable in law.
Mr.Majmudar made an attempt to convince me that the forgery was for the purpose of cheating. Let me accept the same for the time being. So far as Section 468 of the Indian Penal Code is concerned, 'forgery' is the main offence and 'cheating' is the ancillary offence. If there is no evidence as regards the forgery in the absence of the document itself, then there is no question of committing the ancillary offence.
Mr.Majmudar, the learned advocate appearing on behalf of the complainant has placed strong reliance on the decision of the Supreme Court in the case of Vinod Raghuvanshi v. Ajay Arora, reported in (2013)10 SCC 581, wherein the Supreme Court has taken the view that while taking cognizance or issuing process in a complaint case, the Court must have merely a prima facie satisfaction that there is some material on record to proceed against the accused. There cannot be any Page 10 of 12 R/CR.MA/4417/2014 ORDER debate so far as the proposition of law explained by the Supreme Court is concerned. However, I am quashing the proceedings on the ground that the basic material on record to proceed against the accused, viz. the very document alleged to have been forged, is not on record and not available with the complainant himself. In that view of the matter, this decision is of no avail to the complainant.
Beside this, there is one additional aspect of the matter. According to the complainant, the Power of Attorney is a false document. It is not in dispute, as admitted by the complainant himself, that the signature on the Power of Attorney is that of her sister Aminaben, but the same was obtained by misleading her. If the signature of the executant is not in dispute, then the question would be, whether the document would fall within the ambit of a false document under Section 464 of the Indian Penal Code. In the absence of the document itself, the learned Magistrate ought not to have taken cognizance and ordered issue of process of the offence under Sections 465, 468 and 471 of the Indian Penal Code.
The second question that falls for my consideration is, whether the learned Magistrate was justified in issuing the non-bailable warrant simultaneously along with the order of process. This issue is no longer res integra in view of the Supreme Court decision in the case of Inder Mohan Goswami and another v. State of Uttaranchal and others, reported in AIR 2008 SC 251. I need not go into the merits of this issue because I am inclined to quash the order of process on the very first ground itself.
Page 11 of 12R/CR.MA/4417/2014 ORDER In the result, this application succeeds and is hereby allowed. The order dated 3rd January 2014 passed by the Judicial Magistrate, First Class, Mandvi, Kachchh, in Criminal Case No.1 of 2014 is hereby ordered to be quashed. The further proceedings of the Criminal Case also stands terminated.
Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 12 of 12