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TMI Blog2024 (2) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 468 and 471 IPC - HELD THAT:- The offences of forgery and cheating intersect and converge, as the act of forgery is committed with the intent to deceive or cheat an individual. Having extensively addressed the aspect of dishonest intent in the context of cheating under Section 420 IPC, it stands established that no dishonest intent can be made out against the Appellants. Our focus therefore will now be confined, for the sake of brevity, to the first element, i.e., the preparation of a false document. The determination of whether the Appellants prepared a false document, by forging Respondent No. 2 s signature, however, cannot be even prima facie ascertained at this juncture - It is also significant to highlight that the proceedings as against the concerned Passport Officer, who was implicated as Accused No. 4, already stand quashed. In such like situation and coupled with the nature of allegations, it cannot be appreciated as to why the Appellants be subjected to the ordeal of trial. Questions overlooked by the lower courts - HELD THAT:- The Trial Magistrate should have approached the complaint with due care and circumspection, recognising that the allegations do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Adv. Mr. Ratan Singh, Adv. JUDGEMENT SURYA KANT, J. Leave granted. 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. A. FACTS 3. The brief facts that are relevant to the present proceedings are set out as follows: 3.1. The Appellant No. 1 wife, and Respondent No. 2 husband, got married in Bengaluru on 02.08.2007. At the time of their marriage, Respondent No. 2 was engaged in a software business, located in New Castle Upon Tyne, the United Kingdom. During this period, Respondent No. 2 statedly assured the Appellant wife that post marriage they would reside together in London. It is the Appellants cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ). 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. 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 dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on behalf of the Appellants that there were no grounds to frame charges. However, the Trial Magistrate repelled this contention by order dated 15.03.2018 and declined to discharge them. 3.11. The Appellants preferred to challenge the Trial Magistrate s order vide Criminal Revision Petition No. 692 / 2018, but as noticed at the outset, the High Court dismissed the same via the impugned order dated 18.02.2021, primarily on the ground that there were specific allegations against the Appellants which required a full fledged trial. 3.12. The aggrieved Appellants are now before this Court. B. CONTENTIONS OF THE PARTIES 4. Mr. Ranbir Singh Yadav, Learned Counsel appearing for the Appellants, argued that Respondent No. 2 s complaint pertaining to the forgery of the passport application was merely a counterblast to the Appellant wife s complaint alleging cruelty against him. He contended that Respondent No. 2 had expressly consented to obtaining the minor child s passport and after the issuance of passport, had even sent the sponsorship letter authored by his brother in law, Dr. M.K. Shariff, for the relocation of the Appellant wife and the minor child to London. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RATION 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 ? D. ANALYSIS 9. In the present case, charges have been brought against the Appellants for offences punishable under Sections 420, 468, 471, 120 B, 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 420 IPC has a welldefined 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. 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 ingredi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hild is not at the cost of any loss, damage or injury to Respondent No. 2, both the fundamental elements of deceit and damage or injury , requisite for constituting the offence of cheating are conspicuously absent in this factual scenario. 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 2 s signature, however, cannot be even prima facie ascertained at this juncture. Considering the primary ingredient of dishonest intention itself could not be established against the Appellants, the offence of forgery too, has no legs to stand. It is also significant to highlight that the proceedings as against the concerned Passport Officer, who was implicated as 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. 24. That apart, there are glaring procedural irregularities that have been overlooked by the Trial Magistrate, which warrants examination. It is extremely important to delve into these improprieties since the supplementary chargesheet filed by the investigating authority included the offence of forgery under Sections 468 and 471 IPC. Questions overlooked by the lower courts: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r damage. These offences typically diverge from the customary realm of matrimonial disputes, which constitute the underlying cause in this instance. 29. The Trial Magistrate, prior to entertaining the application filed by Respondent No. 2, should have applied his mind and posed certain queries in order to find out as to: (i) Why does Respondent No. 2 want to deprive his minor child of a passport?; (ii) Is it the case that he did not want his minor child to join his company in London?; (iii) How has Respondent No. 2 secured the maintenance, education and future prospects of the minor child?; (iv) Does the minor child have a civil right to hold a passport even if one of his parents does not accord consent?; (v) Can the minor child be granted a passport with the consent of one parent under whose care and custody he is?; (vi) What is the tangible loss, injury or damage suffered by Respondent No. 2 due to procurement of a passport by his minor son? Had the Trial Magistrate taken the pains to confront Respondent No. 2 with these questions, we have no reason to doubt that the vexatious persecution faced by the Appellants, could not at least be attributed to a judicial order. 30. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e approached the complaint with due care and circumspection, recognising that the allegations do not pertain to offences against property or documents related to property marks. Instead of wielding judicial authority against the Appellants, the Trial Magistrate should have exercised prudence, making at least a cursory effort to discern the actual victim or victimiser . The failure to do so is both fallible and atrocious. 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 caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent 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. E. 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. 40. Respondent No. 2 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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