9911796707
TMI Blog2024 (2) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... r, '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' case that Respondent No. 2 initially refused to take the Appellant - wife with him, but after considerable persuasion, she managed to accompany Respondent No. 2 to London. However, soon after, Respondent No. 2 allegedly abandoned her and forcefully confined her to the residence of her sisterinlaw. At the same time, Respondent No. 2 returned to India. 3.2. Appellant No. 2, who is the father of the Appellant - wife, had to intervene in the aforesaid circumstances and facilitate the latter's return to India. Subsequently, on 02.06.2008, the Appellant - wife gave birth to a male child. The Appellants alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 brotherinlaw, Dr. M.K. Shariff, for the relocation of the Appellant - wife and the minor child to London. It was argued that this sponsorship letter is vital since it had been obtained at the instance of Respondent No. 2 and it specifically mentioned the passport number of the minor child, thereby implying consent of Respondent No. 2. 5. Mr. Yadav further contended that the opinion rendered by the State FSL was inconclusive as to the alleged forgery, and no additional material whatsoever had been recovered by the investigating agency between filing the original chargesheet and the supplementary chargesheet. Mr. Yadav also highlighted the reliance placed by both the High Court and the Trial Magistrate on the opinion of a h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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. 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 'cheatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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. 26. It is a matter of record that in the course of 'further investigation', no new material was unearthed by the investigating agency. Instead, the supplementary chargesheet relies upon the Truth Lab report dated 15.07.2013, obtained by Respondent No. 2, which was already available when the original chargesheet was filed. The term 'further investigation' stipulated in Section 173(8) CrPC obligates the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext 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 ..... 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