Challenge
2. The Appellants assail the judgment dated 18.02.2021, passed by the High Court of Karnataka, at Bengaluru (hereinafter, ‘High Court’), whereby their Criminal Revision Petition challenging the order dated 15.03.2018 of the VI Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter, ‘Trial Magistrate’) has been dismissed. Consequently, the Appellants’ prayer to discharge them in connection with FIR No. 141/2010 under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) registered at P.S. Adugodi, Bengaluru has been concurrently turned down.
Facts
3. The brief facts that are relevant to the present proceedings are set out as follows:
3.3. However, as per the allegations of the Appellants, the duration of marriage with Respondent No. 2 was fraught with physical and mental torture solely on account of Respondent No. 2’s relentless financial demands. More pertinently, Respondent No. 2, during his visit to India towards the end of 2009, subjected the Appellant – wife to coercion and torture. These acts of intimidation prompted the Appellant – wife to file a complaint against Respondent No. 2 and his family members on 07.04.2010 before the Basavangudi Women Police Station, Bengaluru. The complaint was registered as Crime No. 68 / 2010, under Sections 346, 498A and 506, read with Section 34 IPC. Additionally, the complaint alleges that Respondent No. 2, on the pretext of arranging for their travel to the United Kingdom, took away the minor child’s passport and jewellery items belonging to the Appellant – wife.
First Information Report
3.4. Having learnt of the complaint filed by his wife, Respondent No. 2 also lodged a complaint of his own on 13.05.2010 before the Adugodi Police Station, alleging that the Appellants had forged his signatures on the minor child’s passport application and submitted the same to the Regional Passport Office, Bengaluru, at the time when Respondent No. 2 was in the United Kingdom. This complaint was registered as FIR No. 141/2010 under Sections 420, 468 and 471 read with Section 34 IPC (hereinafter, ‘Concerned FIR’).
Case filed against the appellant
3.5. Following the investigation conducted in the Concerned FIR, the investigating agency proceeded to file a chargesheet, implicating the Appellants and one Mr. Aksar Ahmed Sheriff, who is a travel agent, for procuring the minor child’s passport using forged documents. Notably, the charges for offences under Sections 468 and 471 IPC were dropped. Consequently, a case numbered CC No. 23545 / 2011 commenced before the Trial Magistrate only for the offences punishable under Section 420 read with Section 34 IPC.
Quash dismissed
3.6. The Appellants sought quashing of the aforementioned chargesheet vide Criminal Petition No. 3600 / 2012, invoking the powers of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), but their petition was dismissed vide order dated 22.04.2014. However, liberty was granted to the Appellants to approach the Trial Magistrate and seek their discharge from the case CC No. 23545/2011.
3.7. The Appellants consequently moved an application under Section 239 CrPC, seeking discharge in CC No. 23545 / 2011. In the meantime, Respondent No. 2 also invoked Section 173(8) CrPC and sought further investigation of the offences under Sections 468 and 471 IPC in the Concerned FIR. The Trial Magistrate on 24.06.2015, vide separate orders, allowed Respondent No. 2’s prayer for further investigation and directed him, being the de facto complainant, to furnish necessary evidence before the investigating officer, if so required. On the other hand, the Trial Magistrate dismissed the Appellants’ discharge application on the ground that the question as to whether an offence under Section 420 IPC was made out or not would be decided during the course of trial.
Issues for consideration
8. The foremost question that falls for consideration before us is whether a prima facie case, to subject the Appellants to the agony of trial, has been made out. In furtherance of this question, the following issues emerge for our further consideration:
(i) Whether the actions of the Appellants prima facie constitute the offence of cheating under Section 420 IPC?
(ii) Whether there has been a prima facie case made out for forgery under Sections 468 and 471 IPC?
(iii) Whether there has been a violation of Section 12(b) of the Passports Act, 1967?
Analysis
9. In the present case, charges have been brought against the Appellants for offences punishable under Sections 420, 468, 471, 120B, 201, read with Section 34 IPC, and Section 12(b) of the Passports Act, 1967. In this context, it is paramount to delve into the ingredients of ‘forgery’ and ‘cheating’ required to be prima facie established against the Appellants, at the very threshold. We are conscious of the fact that such an evaluation would have to proceed on the premise that the material gathered by the investigating agency is not to be discarded or disbelieved at this stage.
The offence of cheating under Section 420 IPC
10. Section 420 IPC provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine. Further, Section 415 IPC distinctly defines the term ‘cheating’. The provision elucidates that an act marked by fraudulent or dishonest intentions will be categorised as ‘cheating’ if it is intended to induce the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, causing damage or harm to that person.
11. It is thus paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) the deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea or dishonest intention of the accused at the time of making the inducement. There is no gainsaid that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.
12. It is well known that every deceitful act is not unlawful, just as not every unlawful act is deceitful. Some acts may be termed both as unlawful as well as deceitful, and such acts alone will fall within the purview of Section 420 IPC. It must also be understood that a statement of fact is deemed ‘deceitful’ when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss.2 ‘Cheating’ therefore, generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or any part of a valuable security, prompting the induced person to undertake the said act, which they would not have done but for the inducement.
13. The term ‘property’ employed in Section 420 IPC has a well defined connotation. Every species of valuable right or interest that is subject to ownership and has an exchangeable value – is ordinarily understood as ‘property’. It also describes one’s exclusive right to possess, use and dispose of a thing. The IPC itself defines the term ‘moveable property’ as, “intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.” Whereas immoveable property is generally understood to mean land, benefits arising out of land and things attached or permanently fastened to the earth.
Apply the principle in the present fact
14. Having fully addressed the contours of the offence of ‘cheating’, let us now advert to the facts of the instant case to appreciate whether the allegations made by Respondent No. 2, are sufficient to prima facie establish that: (i) the Appellants have deceived Respondent No. 2; (ii) Respondent No. 2 was induced with dishonest intentions; (iii) such inducement was for the delivery of any property or valuable security; and (iv) as a result of such an act, Respondent No. 2 has suffered some damage or injury.
15. Each of these ingredients need to be analysed to ascertain whether Respondent No. 2 has made allegations in his complaint to substantiate points (i) to (iv) above. Additionally, it would also aid in determining whether the original or supplementary chargesheet addresses any of these ingredients.
Not every unlawful act automatically qualifies as ‘deceitful’
16. The crux of Respondent No. 2’s allegations is that the Appellants purportedly forged his signature on the passport application submitted to obtain the minor child’s passport. Assuming the allegation to be accurate, it would undoubtedly constitute an unlawful act. However, as set out earlier, it is crucial to underscore that not every unlawful act automatically qualifies as ‘deceitful’. In the peculiar facts and circumstances of this case, the Appellant – wife seems to have breached the notion of mutual marital trust and unauthorizedly projected Respondent No. 2’s consent in obtaining the passport for their minor child. It, however, remains a question as to how such an act can be labelled as ‘deceitful’. The motivations prompting either of the Appellants to procure a passport for the minor child were not rooted in deceit. Furthermore, the grant of passport to the minor child did not confer any benefit upon the Appellant wife, nor did it result in any loss or damage to Respondent No. 2. In the same vein, Appellant No. 2, being the father of the Appellant – wife and assisting in securing the passport for the chid, derived no direct or indirect benefit from this action.
Forging signature in the passport does not relinquish any property or valuable security
17. In this context, the critical inquiry arises: how does the act of forging signatures on the passport application, aimed at obtaining the minor child’s passport, amount to inducing Respondent No. 2 to relinquish any property or valuable security? Examining the situation, it becomes apparent that the aforementioned act does not entail inducement leading to the parting of any property by Respondent No. 2. The nature of the property which can be claimed to have been relinquished or the tangible loss, damage, or injury, if any, suffered by Respondent No. 2 are not visible at all. The unequivocal response to these queries is clearly in the negative.
What is passport and what it facilitates?
19. Conversely, can the Appellant – wife, being the natural mother of the child and a natural guardian, be accused of acting `dishonestly’ when applying for the passport of her minor child? A passport, is an authorised instrument which enables a person to travel outside the country of his origin. In this case, the passport was admittedly issued in favour of the minor child. Whether it was stolen by Respondent No. 2 or misplaced, is wholly immaterial to the present discussion. The grant of passport to the minor child is nothing but a right conferred upon him by statute. The passport is meant to facilitate him to accompany his mother to London and stay with his father. However, there is not even a whisper of allegation or suggestion that the passport was obtained to the detriment of the child’s wellbeing. The underlying intent of obtaining the passport was, ironically, essential for the Appellant – wife and minor child to live together with Respondent No. 2, on whose instructions the passport was statedly obtained. Conversely, it is the actions of Respondent No. 2 that have seemingly deprived the minor child of his right to seek the care and company of his father, as the passport was allegedly taken away by Respondent No. 2 in a clandestine manner.
Cheating not established
20. The background of this case and the chronology of events squarely indicate that it is the touchstone of a marital dispute. The insinuations made by Respondent No. 2, even if they possess an iota of truth, have miserably failed to prima facie establish the elements of ‘cheating’ and thus, the accusation made against the Appellants under Section 420 IPC must fall flat.
The offence of forgery under Sections 468 and 471 IPC
21. The offence of ‘forgery’ under Section 468 IPC postulates that whoever commits forgery, intending that the document or electronic document forged, shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Whereas Section 471 IPC states that whoever fraudulently or dishonestly uses as genuine any documents which he knows or has reason to believe it to be a forged document, shall be punished in the same manner as if he had forged such document.
Ingredients to prove forgery
22. There are two primary components that need to be fulfilled in order to establish the offence of ‘forgery’, namely: (i) that the accused has fabricated an instrument; and (ii) it was done with the intention that the forged document would be used for the purpose of cheating. Simply put, the offence of forgery requires the preparation of a false document with the dishonest intention of causing damage or injury [Sushil Suri v. Central Bureau of Investigation, (2011) 5 SCC 708, para 26] Accused No. 4, already stand quashed. In such like situation and coupled with the nature of allegations, we are unable to appreciate as to why the Appellants be subjected to the ordeal of trial.
Questions overlooked by the lower courts
Supplementary chargesheet filed in compliance of magistrate’s order
25. As previously noted, the Appellants stand accused of forging the signatures of Respondent No. 2 on the passport application of the minor child. The investigating agency initially found insufficient evidence to support charges under Sections 468 and 471 IPC. Accordingly, no chargesheet was filed under these provisions. However, in compliance with the Trial Magistrate’s order dated 24.06.2015, a supplementary chargesheet was submitted under Sections 468, 471 and 201 IPC and Section 12(b) of the Passports Act, 1967.
Magistrate is not compelled to take cognizance on supplementary final report in the absence of any new evidence found to substantiate the conclusion of I.O
27. The provision for submitting a supplementary report infers that fresh oral or documentary evidence should be obtained rather than reevaluating or reassessing the material already collected and considered by the investigating agency while submitting the initial police report, known as the chargesheet under Section 173(2) CrPC [Vinay Tyagi v. Irshad Ali and others, (2013) 5 SCC 762, para 22]. In the absence of any new evidence found to substantiate the conclusions drawn by the investigating officer in the supplementary report, a Judicial Magistrate is not compelled to take cognizance, as such a report lacks investigative rigour and fails to satisfy the requisites of Section 173(8) CrPC. What becomes apparent from the facts on record of this case is that the investigating agency acted mechanically, in purported compliance with the Trial Magistrate’s order dated 24.06.2015.
Matrimonial disputes do not attract Chapter XVII and XVIII
28. Regrettably, the Trial Magistrate, while directing further investigation, overlooked the significant aspect that the offences imputed upon the Appellants fall within the ambit of Chapter XVII, ‘Of Offences Against Property’, and Chapter XVIII, ‘Of Offences Relating to Documents and to Property Marks’ of the IPC. All the offences delineated or illustrated under these two chapters predominantly pertain to commercial or property disputes arising from dishonest, deceitful and fraudulent transactions, wherein an individual is induced to part with their property or valuable security, leading to subsequent injury or damage. These offences typically diverge from the customary realm of matrimonial disputes, which constitute the underlying cause in this instance.
Forgery of signatures was not proved by FSL
30. We also fail to understand the reliability of the material based on which the investigating agency or the Trial Magistrate could form a prima facie opinion concerning the allegation of forgery of signatures of Respondent No. 2. As observed earlier, the State FSL report does not substantiate these allegations. In our opinion, a paid report obtained from a private laboratory seems to be a frail, unreliable, unsafe, untrustworthy and imprudent form of evidence, unless supported by some other corroborative proof. It is painful to mention that Respondent No. 2 has not produced any other substantive proof, nor has the investigating agency obtained any such material in compliance with the Trial Magistrate’s order for further investigation. The basis on which the Trial Magistrate formed a prima facie opinion, in the absence of such supporting evidence is, therefore, beyond our comprehension.
34. The sum and substance of the above discussion is that the elementary ingredients of ‘cheating’ and ‘forgery’ are conspicuously missing. Thus, the continuation of the criminal proceedings against the Appellants is nothing but an abuse of the process of law.
In the context of Section 12(b) of the Passports Act, 1967
35. In addition to the abovementioned provisions of the IPC, the Appellants have also been accused of committing an offence under Section 12(b) of the Passports Act, 1967. Section 12(b) categorically states that, whoever knowingly furnishes any false information or suppresses any material information, with a view to obtaining a passport or travel document under this Act or without lawful authority, alters or attempts to alter or causes to alter the entries made in a passport or travel document, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five thousand rupees or with both.
36. As discernible from the language of the provision, what must be established is that the accused knowingly furnished false information or suppressed material information with the intent of obtaining a passport or travel document. In the present case, it is crucial to consider that the State FSL report explicitly stated that the alleged forgery of Respondent No. 2’s signatures on the passport application was inconclusive. Moreover, the cognizance of such like offence can be taken only at the instance of the Prescribed Authority. No complaint to that effect has been disclosed against the Appellants. This Court, therefore, will exercise caution before invoking such severe offences and penalties solely on the basis of conjectures and surmises.
Conduct of the respondent.2 adversely affects the minor child
38. It is undeniable that despite the evident discord between the Appellants and Respondent No. 2, resulting in numerous complaints and legal proceedings, the issue at hand has adversely impacted the rights and interests of the minor child. The right to travel abroad is a fundamental right of an individual, albeit not absolute, and subject to established legal procedures [Maneka Gandhi v. Union of India and another (1978) 1 SCC 248, paras 76, 80-85]. The conduct exhibited by Respondent No. 2 infringes upon the best interests of the minor child, which necessitates the child’s travel abroad for the realisation of opportunities and intrinsic value, aligning with the child’s dignity, as enshrined by the Constitution [K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1, paras 376-379].
Conclusion and directions
39. Consequently, the appeal is allowed; the impugned judgment of the High Court dated 18.02.2021, and that of the Trial Magistrate dated 15.03.2018, are hereby set aside. As a sequel thereto, the FIR No. 141 / 2010 registered at Police Station Adugodi, Bengaluru under Sections 420, 468, 471 read with Section 34 IPC, lodged by Respondent No. 2 against the Appellants and all the proceedings arising therefrom are hereby quashed.
Cost imposed on the husband
40. Respondent No. 2 is liable to pay the cost of Rs. 1,00,000/to Appellant No. 1. Ordered accordingly, Respondent No. 2 shall pay the costs within six weeks, failing which the Trial Magistrate is directed to initiate coercive measures for recovery thereof.
Parties
Mariam Fasihuddin & Anr…Appellant(s) versus State by Adugodi Police Station & Anr … Respondent(s)…Criminal Appeal No.335/ 2024(Arising out of Special Leave to Appeal (Crl.) No 2877/2021) – 2024 INSC 49 – DATED: 22¬.01.¬2024
https://main.sci.gov.in/supremecourt/2021/8540/8540_2021_4_1501_49676_Judgement_22-Jan-2024.pdf
Mariam Fasihuddin vs. State by Adugodi Police station – 8540_2021_4_1501_49676_Judgement_22-Jan-2024
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