Samir Kumar vs State Of Jharkhand And Others

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding of Complaint Case No.6166 of 2020 including the order dated 29.09.2022 passed by Judicial Magistrate-XVI, Ranchi by which the learned Magistrate has found prima facie case for the offence punishable under Sections 468, 465, 471 of the Indian Penal Code against the petitioner and directed for issuance of summons to the petitioner and the said case is now pending before the learned Judicial Magistrate-XVI, Ranchi.

The brief facts of the case is that the petitioner is the husband of the complainant and earlier the complainant filed Complaint Case No.1131 of 2017 involving the offence punishable under Sections 498-A, 326 and 120B of the Indian Penal Code and in that case, the petitioner was granted bail. Subsequently, the complainant filed a petition for cancellation of bail granted to the petitioner. It is stated that in the said proceeding for cancellation of bail granted to the petitioner vide M.C.A No.282 of 2019, the petitioner filed the following documents:-

(I) Bank Statement

(III) Employment ID, Email ID, Phone Numbers, Location, Reporting Manager etc.

It is alleged that the said information has been obtained by the petitioner by fraudulent means and the same are the personal documents of the complainant and obtained without her consent, hence, it is submitted that the petitioner has committed the offences as alleged.

The learned Magistrate on the basis of complaint, statement on solemn affirmation of the complainant and the statement of two enquiry witnesses, has found prima facie case for the offences punishable under Sections 465, 468 and 471 of the Indian Penal Code is made out against the petitioner.

Learned counsel for the petitioner submits that the real reason for the complainant disliking the petitioner is that the petitioner is a patient of Blood Cancer which is incurable and the complainant knows the same very well and only to harass the petitioner, this false case has been foisted. It is then submitted that even if the allegations made in the complaint, statement on solemn affirmation and statement of two enquiry witnesses are considered to be true in their entirety still none of the offence in respect of which the learned Magistrate has found prima facie case is made out against the petitioner. Hence, it is submitted that the entire criminal proceeding of Complaint Case No.6166 of 2020 including the order dated 29.09.2022 passed by Judicial Magistrate-XVI, Ranchi by which the learned Magistrate has found prima facie case for the offence punishable under Sections 468, 465, 471 of the Indian Penal Code and directed for issuance of summons to the petitioner which is now pending before the learned Judicial Magistrate-XVI, Ranchi, be quashed and set aside.

Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer for quashing and setting aside the entire criminal proceeding of Complaint Case No.6166 of 2020 including the order dated 29.09.2022 passed by Judicial Magistrate-XVI, Ranchi by which the learned Magistrate has found prima facie case for the offence punishable under Sections 468, 465, 471 of the Indian Penal Code and directed for issuance of summons to the petitioner. Learned counsel for the opposite party No.2 submits that the petitioner in an unlawful manner, has obtained the documents to use the same against the complainant in a judicial proceeding, hence, the offences alleged, are made out on the basis of the averments made in the complaint, statement on solemn affirmation and statement of enquiry witnesses. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the essential ingredients of the offence punishable under Section 465 of the Indian Penal Code are as follows:-

(I) the accused prepared a false document or electronic record,

(II) he did it with false meaning of retaining instrument for the purpose of fraud or deceive,

(III) the document or electronic record was prepared dishonestly or fraudulently,

(IV) he did it with the intention of causing wrongful gain to someone by wrongful loss to another as has been held by the Hon’ble Supreme Court of India in the case of Indian Bank vs. Satyam Fibers (India) Pvt. Ltd. reported in (1996) 5 SCC 550.

So far as the offence punishable under Section 468 of the Indian Penal Code is concerned, the same relates to the forgery for the purpose of cheating. So, in order to constitute the offence punishable under Section 468 of the Indian Penal Code, the offence punishable under Section 465 of the Indian Penal Code has to be first committed and the aggravated form of the offence punishable under Section 465 of the Indian Penal Code is the offence punishable under section 468 of the Indian Penal Code and the same is constituted when the forged document is used for the purpose of cheating.

So far as the offence punishable under Section 471 of the Indian Penal Code is concerned, the same provides for punishment for using as genuine a forged document, so, to constitute the offence punishable under Section 471 of the Indian Penal Code also, the essential ingredient is that there has to be a forged document.

Now, after carefully going through the materials available in the record, this Court finds that there is absolutely no allegation of any false document having been created by the petitioner. The only allegation is that the petitioner might have obtained the personal documents of the complainant which he may have used in some judicial proceeding but the genuineness of such documents produced is not questioned and at best a doubt is raised by the complainant that by adopting some unfair means the petitioner has procured the said documents. This allegation, even if, is considered to be true in its entirety, in the considered opinion of this Court, neither constitutes the offence punishable under Section 465 of the Indian Penal Code nor the offence punishable under Sections 468 or 471 of the Indian Penal Code. Hence, this Court has no hesitation in holding that the learned Judicial Magistrate-XVI, Ranchi has committed a grave error in holding that prima facie case for the offences punishable under Sections 465, 468 and 471 of the Indian Penal Code is made out against the petitioner.

Accordingly, this Court is of the considered view that the entire criminal proceeding of Complaint Case No.6166 of 2020 including the order dated 29.09.2022 passed by Judicial Magistrate-XVI, Ranchi by which the learned Magistrate has found prima facie case for the offences punishable under Sections 468, 465, 471 of the Indian Penal Code and directed for issuance of summons to the petitioner which is now pending before the learned Judicial Magistrate-XVI, Ranchi, has been passed in contravention of the principle of natural justice and hence, committed gross illegality, hence, the continuance of the same will amount to abuse of process of law.

Accordingly, the entire criminal proceeding of Complaint Case No.6166 of 2020 including the order dated 29.09.2022 passed by Judicial Magistrate-XVI, Ranchi by which the learned Magistrate has found prima facie case for the offence punishable under Sections 468, 465, 471 of the Indian Penal Code and directed for issuance of summons to the petitioner which is now pending before the learned Judicial Magistrate-XVI, Ranchi, is quashed and set aside.

In the result, this Cr.M.P. stands allowed.