Sushant Sushil Ghosh vs Madhumita Sushant Ghosh

A.M. Thipsay, J.—Rule.

By consent, Rule made returnable forthwith.

By consent, heard finally.

The petitioner is the husband of the respondent no. 1. He had filed a complaint against the respondent no. 1 alleging commission of offences punishable under section 418 IPC, 419 IPC, 420 IPC, 463 IPC, 464 IPC, 468 IPC. After examining the petition on oath, as contemplated under section 200 of the Code of Criminal Procedure (for short ''the Code''), the learned Magistrate, by his order dated 22nd September 2011, issued process against the respondent no. 1, requiring her to appear, and answer to the charge of the aforesaid offences. Being aggrieved by the order issuing process, the respondent no. 1 approached the Court of Sessions by filing an application for revision. The learned Addl. Sessions Judge who heard the Revision Application, was of the view that the order issuing process as passed by the learned Magistrate was not correct, legal or proper. He, therefore, quashed the said order and dismissed the complaint. Being aggrieved thereby, the petitioner has approached this Court invoking its jurisdiction under Article 227 of the Constitution, praying that the order passed by the Addl. Sessions Judge in revision, be quashed and set aside.

I have heard Mr.Nitin Deshpande, learned counsel for the petitioner. I have heard Mr.Amitkumar Sale, learned counsel for the respondent no. 1. With their assistance, I have gone through the petition and the annexures thereto, which include a copy of the complaint, a copy of the document which is alleged to be forged, the order passed by the Magistrate, and the order passed by the Addl. Sessions Judge in revision.

For the sake of convenience and clarity, the petitioner shall hereinafter be referred to as ''the complainant'' and respondent no. 1 as ''the accused''.

The case of the complainant, as put forth in the complaint, was to the effect that after the marriage, the complainant and accused stayed together for some time, but from year 2003 they had been residing separately. The complainant and the accused both had, jointly purchased an apartment in Vashi on 13th November, 2000. For purchasing the said apartment, the complainant had obtained loan from the IDBI Bank, Panvel branch. The repayment of said loan was being made by the complainant from his own salary. That, the accused was shown as a co-owner of the said apartment. That, the complainant started residing at Kolkata since November 2003 in connection with his service. That, the said apartment was thereafter occupied by the accused. That, the apartment was owned jointly by the complainant and the accused, and that the complainant had never authorized the accused to sell the same. That, in spite of this, the accused got prepared a false irrevocable Power of Attorney dated 21st November, 2007, purporting to have been executed by the complainant in her favour, made false signature of the complainant thereon, and got it notarized. That, there was no question of the complainant executing the said Power of Attorney on 21st November, 2007, as on that date he was, in his office at Kolkata. That, based on this forged Power of Attorney, the accused sold the said apartment by an agreement dated 24th December 2007 and sale-deed dated 24th January, 2008. The accused had, thus, committed the offences by forging a Power of Attorney, and had dishonestly made an unlawful gain.

As aforesaid, the Magistrate was satisfied that there was a prima facie case for proceeding against the accused and, as such, had issued process. (It may be observed that process was wrongly mentioned as having been issued in respect of the offences under punishable under Sections 463 and 464 of the IPC, as these are not penal sections at all. They merely define ''forgery'' and ''making a false document''. The penal section in that regard is section 465 of the IPC.)

I have carefully gone through the order passed by the Addl. Sessions Judge in revision.

The reasons which weighed with the Addl. Sessions Judge in coming to a conclusion that the order passed by the Magistrate was improper, illegal and needed to be quashed, as reflected from the impugned order, are as follows :-

(a) That the complainant and the accused were husband and wife, and the said apartment was owned by them jointly.

(b) The complainant was unable to prove that he was at Kolkata on 21st November 2007. Therefore, the Magistrate had no concrete proof that the complainant was present in his office.

(c) The complainant was not the sole owner of the said flat, and that the record shows that the accused had deposited an amount of Rs.8,58,864/-in the loan account of the complainant with the IDBI Bank on 23rd August 2007.

(d) There was a delay in the filing of the complaint, and that delay was inspite of the fact that the accused had deposited considerable amount in the loan account of the complainant. Therefore, there was absence of intention to cheat on the part of the accused.

In my opinion, the learned Additional Sessions Judge has viewed the matter in a totally wrong perspective. It is well settled that the revisional jurisdiction is meant to be exercised for correcting a manifest error of law, resulting in miscarriage of justice. The scope for interference with an order issuing process in exercising revisional jurisdiction, has been the subject matter of several authoritative pronouncements of the Apex Court.

The observation made by the learned Addl. Sessions Judge to the effect that the ''complainant was not successful in giving concrete proof of the fact that he was at Kolkata on 21st November 2007'', is unfortunate. The learned Addl. Sessions Judge overlooked that it was not necessary for the complainant to have proved the said fact beyond reasonable doubt, as would be required to be done in the course of trial. Apart from this, the learned Additional Sessions Judge did not appreciate the following viz:-that the complainant had put forth this fact, as would rule out the possibility of his having prepared the said document on 21st November, 2007. Indeed, ''the complainant''s being in Kolkata on 21st November, 2007, would indicate the document in question being a forged one, but the converse viz:-''that he was not in his office at Kolkata on 21st November, 2007 would indicate the document being a genuine one'' can not be even suggested. It is not as if that the complainant''s inability to prove his presence at Kolkata would by itself, indicate the signature alleged to be forged, to be actually his only.

Undoubtedly, there was some substance in the contention advanced before the learned Addl. Sessions Judge that the accused had deposited considerable amount in the credit of the loan account of the complainant. This would certainly indicate the possibility of there having been some sort of understanding between the parties. However, the mere deposit of the amount, by itself, would not lead to a presumption that there was certainly no dishonest or fraudulent intention on the part of the accused. It would depend on other factors. In this case, it is contended that the amount deposited was not much, and in any case, much less than the amount that would come to the share of the complainant if the sale proceeds of the apartment were to be equally divided. The possibility of the deposit having been made only to strengthen the claim that sale was made pursuant to the authority given by the complainant, therefore, could not be ruled out at the threshold. These being the questions of fact and that too about the existence or non-existence of a state of mind it was not advisable for the learned Addl. Sessions Judge to have concluded that ''there was no dishonest intention on the part of the accused'', and to quash the order issuing process passed by the Magistrate. Such questions can be properly decided only on the basis of evidence.

What should be the approach of the Court in dealing with a challenge to an order issuing process, has been made clear by the Supreme Court of India in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, . In that case, the Supreme Court of India catalogued the cases (although by way of illustration) in which an order to issue process may be quashed. These are:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does net disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

Clearly, the present case did not fall under any of the aforesaid categories. It is true that these categories have been mentioned only as and by way of illustrations, but it has also been clarified by Their Lordships that they provide sufficient guidelines as to the contingencies in which an order issuing process, would be liable to be quashed. The present case certainly does not fall in any category that could be said to be similar to any of the aforesaid categories. The Additional Sessions Judge was, therefore, clearly wrong in setting aside the order issuing process as passed by the Magistrate, and has exceeded the revisional jurisdiction vested in him by law. The finding that the impugned order passed by Additional Sessions Judge needs to be set aside, ordinarily, would result in the order passed by the Magistrate, consequently being restored. However, the facts of this case are rather peculiar, and therefore, to meet the ends of justice, a somewhat unusual course would be required to be adopted.

Though the impugned order passed by the Additional Sessions Judge in revision being set aside, I am not inclined to restore the order passed by the Magistrate. Considering the peculiar relationship between the parties, the fact that some amount undoubtedly came to be deposited in the loan account of the complainant by the accused, and that there was considerable delay in filing of the complaint, this, in my opinion was a fit case where the Magistrate should not have hastened to come to a conclusion about sufficiency or otherwise of the grounds for proceeding against the accused. In my opinion, this was a fit case where the Magistrate should have postponed the issue of process, and should have held, either an inquiry into the matter, or should have directed investigation into the matter by the police, as contemplated under section 202 of the Code of Criminal Procedure.

In the result, petition is partly allowed.

The impugned order is set aside.

However, the order issuing process as passed by the Magistrate, is also set aside.

The learned Magistrate shall hold further inquiry into the matter or, if he thinks fit, direct investigation to be made by a police officer, as contemplated under section 202 of the Code of Criminal Procedure, and then proceed further with the complaint in accordance with law.

Petition is disposed of in the aforesaid terms.

Rule is made absolute accordingly.