Case Law

Hem Lata Gupta & Anr. v. Charanjeet Kumar Dutta & Anr.

Court: High Court of Jammu & Kashmir and Ladakh at Jammu

Case No.: CRM(M) No. 278/2021, CrlM No. 517/2021

Coram: Hon'ble Mr. Justice Vinod Chatterji Koul

Date of Judgment: 30.12.2022

Relevant Case Relied Upon:

  • State of Haryana & Others v. Bhajan Lal & Others, AIR 1992 SC 604

 

Sections Involved

Indian Penal Code, 1860

  • Section 420 – Cheating
  • Section 467 – Forgery of Valuable Security, Will, etc.
  • Section 468 – Forgery for the Purpose of Cheating
  • Section 471 – Using Forged Document as Genuine

Code of Criminal Procedure, 1973

  • Section 202 – Postponement of Issue of Process and Inquiry
  • Section 203 – Dismissal of Complaint
  • Section 482 – Inherent Powers of High Court


Facts of the Case

The petitioners filed a petition under Section 482 CrPC seeking quashing of a private criminal complaint alleging offences under Sections 420, 467, 468 and 471 IPC, along with the summoning order dated 19.03.2021 passed by the trial court.

The respondents alleged that the petitioners had prepared and used a forged rent agreement showing themselves as tenants of a shop owned by the complainant. It was further alleged that the forged rent agreement was used before the Sales Tax Department to obtain GST registration, thereby cheating both the complainant and the authorities.

The petitioners contended that the complaint was filed with mala fide intention to harass them due to disputes relating to enhancement of rent and vacation of the premises. They also asserted that the essential ingredients of cheating and forgery were not made out.

The trial court had earlier directed an inquiry under Section 202 CrPC. The police submitted its inquiry report, following which the Magistrate issued process against the petitioners.

 

Issues Involved

  1. Whether the summoning order issued by the Magistrate under Sections 420, 467, 468 and 471 IPC was legally sustainable.
  2. Whether the inquiry conducted under Section 202 CrPC was adequate when no expert opinion regarding the alleged forged rent agreement had been obtained.
  3. Whether the High Court should exercise its inherent jurisdiction under Section 482 CrPC to set aside the summoning order.

 

Petitioners' Arguments

The petitioners submitted that:

  • The criminal complaint was maliciously instituted only to pressurize them to vacate the rented premises or agree to enhanced rent.
  • The allegations regarding execution of the rent deed were false.
  • The essential ingredients constituting offences under Section 420 IPC were absent.
  • The petitioners were admitted tenants and there was no question of dishonest inducement.
  • The Magistrate ignored the inquiry report submitted pursuant to Section 202 CrPC.
  • The impugned order was a non-speaking order and contrary to law.
  • Reliance was placed upon the Supreme Court judgment in State of Haryana & Others v. Bhajan Lal & Others (AIR 1992 SC 604) regarding exercise of inherent powers where criminal proceedings are initiated with mala fide intent.

Respondents' Arguments

The respondents alleged that:

  • The accused had forged the rent agreement without the consent or signatures of the complainants.
  • The forged rent agreement was produced before the Sales Tax Department.
  • GST registration had been obtained on the basis of the forged document.
  • The accused dishonestly used the forged rent agreement to cheat both the complainant and the authorities.
  • Prima facie offences under Sections 420, 467, 468 and 471 IPC were clearly made out, warranting issuance of process.

 

Court Findings

The High Court observed that:

  • The Magistrate had himself considered it necessary to conduct an inquiry under Section 202 CrPC before issuing process.
  • The principal allegation was that the rent agreement itself was forged.
  • The inquiry officer was required to determine the genuineness of the document.
  • Such determination necessarily required obtaining the opinion of an expert competent to examine the disputed document.
  • The police inquiry was conducted without obtaining any expert opinion regarding the alleged forgery.
  • In the absence of such expert evidence, there was no sufficient material before the Magistrate to conclude that the document was forged.
  • Consequently, issuance of summons without such foundational evidence was unsustainable in law.

 

Court Order

The High Court:

  • Set aside the summoning order dated 19.03.2021.
  • Remanded the matter to the Magistrate.
  • Directed that before proceeding further, the Magistrate should obtain a report regarding the disputed rent agreement by directing the Inquiry Officer (SHO) to obtain the opinion of an expert on the document.
  • Thereafter, the Magistrate was directed to proceed in accordance with law.

 Important Clarification

The High Court did not decide whether the rent agreement was genuine or forged.

The Court only held that:

  • When forgery of a document forms the very foundation of the criminal complaint,
  • and an inquiry under Section 202 CrPC has been ordered,
  • the inquiry should include appropriate expert examination of the disputed document before issuance of criminal process.

Accordingly, the matter was remanded for fresh consideration after obtaining expert opinion.

 

Related Case Law

State of Haryana & Others v. Bhajan Lal & Others, AIR 1992 SC 604

The Supreme Court laid down the well-known principles governing the exercise of inherent powers under Section 482 CrPC for quashing criminal proceedings, including cases where proceedings are maliciously instituted or initiated with an ulterior motive to harass the accused. The petitioners relied upon these principles before the High Court.

 Key Takeaways

  • Expert opinion assumes critical importance where allegations of forgery constitute the foundation of criminal prosecution.
  • An inquiry under Section 202 CrPC must be meaningful and adequate before issuance of process.
  • Summoning an accused without sufficient material establishing prima facie forgery may render the order vulnerable to judicial review.
  • High Courts may exercise inherent jurisdiction under Section 482 CrPC where criminal proceedings suffer from legal infirmities.
  • The judgment reinforces procedural safeguards before compelling an accused to face criminal trial.

    Link to download the order

https://mytaxexpert.co.in/uploads/1782885229_2.pdf