The High Court
Case Details
1 Cr.M.P. No. 454 of 2022 with 499 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 454 of 2022 1. Vaman Borker, S/o Devdutta Vaman Borker, aged about 51 years, resident of house no. 406/239, plot No. 62, PDA colony, Alto Porvorim, P.O.- Alto Porvorim SO, P.S.- Porvorim, Dist. – Bardez, State – Goa 2. Kanupriya Saldi, aged about 34, d/o Pawan Saldi, resident at Plot 34, Floor 4, Sector 52, P.O.- Gurugram Sector 56 SO P. S- 53, Distt- Gurugram, State -Haryana. 3. Rajat Gupta, s/o Col. Rajindra Kumar, aged about 38 years, resident of Villa 145, Sidra 3, Dubai Hills Estate, United Arab Emirates, Pin Code: P.O: Emirates Post, Dubai, P.S: Dubai Police, State- Dubai, United Arab Emirates. Versus …... Petitioners 1. The State of Jharkhand 2. M/s Kishor Exports, a partnership firm through its Authorised Representative Mr. Deepak Agarwal, having its office at Plot no. E, F, & G, Kulhi Industrial Area, P.O. & P.S.- Ormanjhi, Dist. – Ranchi 835219 .. Opposite Parties With Cr.M.P. No. 499 of 2022 1. Paresh P. Jathar @ Paresh Jathar, aged 45 years, son of Sri Prabhakar, C/o at Fracht India Pvt. Ltd. Unit No. 203, Town Centre-2, Andheri – Kurla Road, Marol, Andheri (E ) ,P.O.- Marol, P.S.- Sahar, Dist.- Mumbai, State- Maharastra 2. Rajesh P.V. @ V.P. Rajesh, aged 50 years, son of Sri Pappu Vazhappillil, C/o at Fracht India Pvt. Ltd,., Unit No. 203, Town Centre-2, Andheri- Kurla Road, Marol, Andheri (E ) ,P.O.- Marol, P.S.- Sahar, District- Mumbai, State- Maharastra Versus …... Petitioners 1. The State of Jharkhand 2. Deepak Agrawal, son of Satish Prakash Agrawal, resident of or having its business at Kishor Exports Company, Village- Kulahi, P.S., P.O.- Ormanjhi, District- Ranchi, Jharkhand .. Opposite Parties For the Petitioners : Mr. Indrajit Sinha, Adv. (In C.M.P. No.454 of 2022) Mr. Abhijit Mittal, Adv. (In C.M.P. No.454 of 2022) Mr. Anukalp Jain, Adv. (In C.M.P. No.454 of 2022) Mr. Prem Mardi, Adv. (In C.M.P. No.454 of 2022) Mr. S. K.Pathak, Adv. (In C.M.P. No.499 of 2022) For the State : Mr. P.D.Agrawal, Spl.PP Mr. Deeapk Kr. Dubey, AC to AAG II For the O.P. no. 2: Mr. Pandey Neeraj Rai, Adv. Mr. Abhijeet Kr. Singh, Adv. 2 Cr.M.P. No. 454 of 2022 with 499 of 2022 P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
Legal Reasoning
Heard the parties. 2. Both these criminal miscellaneous petition no. 454 of 2022 and 499 of 2022 have been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C. with a prayer for quashing the entire criminal proceeding including the FIR of Ormanjhi P.S. case no. 190 of 2021 registered for the offences punishable under Sections 419, 420, 467, 468, 471, and 474 of IPC, hence, both these cases are
Decision
disposed of by this common judgment. 3. The brief facts of the case is that the informant – opposite party no. 2, who is the authorized representative of a partnership firm in the name and style of Kishor Exports, involved in manufacturing, export and trade of readymade garments, lodged this FIR, alleging therein that on 28.03.2021, Kishor Exports sold the imported good and procured raw materials to WINC Design Limited and transported to Fracht India Pvt. Limited, Bombay , which was acting on behalf of WINC Design Limited. In May, 2021, WINC Design Limited informed the informant that they want to send the raw materials to China and proposed the informant to issue invoice as exporter to China but the same was refused by Kishor Exports as goods have already been sold by them and even after such refusal, on 03.06.2021, Kishor Exports got information that WINC Design Limited was exporting the sold goods to China under the forged / altered invoices of Kishor Exports, issued for goods sold at Ranchi to WINC Design Limited. There is specific allegation that the invoice was altered in multiple fields without consent of Kishor Exports and the name of the buyer was changed to some entity other than WINC Design Limited. This was done with an intention to deceive and to use the invoice enabling the goods to be exported to third party, to whom Kishor Exports had not sold the goods and not received 3 Cr.M.P. No. 454 of 2022 with 499 of 2022 any consideration from such entity. On the basis of the written report submitted by the informant, the police registered Ormanjhi P.S. case no. 190 of 2021 for the offences punishable under Sections 419, 420, 467, 468, 471, and 474 of IPC. During the course of investigation, the police issued notices under Section 41A of Cr.P.C to the petitioners addressing them as not named accused persons of the FIR. None of the petitioners of these two criminal miscellaneous petitions are named in the FIR. 4. Mr. Indrajit Sinha, learned counsel for the petitioners appearing in the Cr.M.P No. 454 of 2022, submits that the petitioners have not committed any offence. In the FIR, not even a single allegation against the petitioners or P & G India, to attribute any criminal act, having been committed by them has been made, barring a bald allegation that the P & G India officials were actively involved in multiple matters pertaining to contractual relationship between the WINC Design Limited and the complainant. Learned counsel for the petitioners further submits that since WINC Design Limited is a Hongkong based entity, the informant designed a nefarious mechanism to falsely implicate the petitioners in criminal case, with an intention to extorting the huge sums of money from the employers of the petitioners. The employer of the petitioners through their counsels duly responded to the notice under Section 41A of the CrPC, informing about the stand and position of PGHP and its employees. It next submitted that the FIR is malafide and contrary to the provisions of law and even if taken at face value and accepted in its entirety, does not constitute or disclose any offence or make out a case against the petitioners for the offences, for which, the FIR has been registered. It is next submitted that the FIR has been mechanically registered by the O. P. No. 1, without conducting any preliminary investigation by the Investigating Officer. 5. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Parminder Kaur vs. State of Uttar Pradesh and Anr. reported in (2010) 1 SCC 322, para 33 of which reads as under : 4 Cr.M.P. No. 454 of 2022 with 499 of 2022 33. The first clause suggests that a person makes a false document if he— (1) dishonestly or fraudulently makes, signs, seals or executes a document, or part of a document, or makes any mark denoting the execution of a document; and (2) does as above with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed, (a) by or by the authority of a person by whom or by whose authority it was not so made, signed, sealed or executed, or (b) at a time at which he knows that it was not made, signed, sealed or executed; It is not the case here. To attract the second clause of Section 464 there has to be alteration of document dishonestly and fraudulently. So in order to attract clause “Secondly” if the document is to be altered it has to be for some gain or with such objective on the part of the accused. Merely changing a document does not make it a false document. Therefore, presuming that the figure “1” was added as was done in this case, it cannot be said that the document became false for the simple reason that the appellant had nothing to gain from the same. She was not going to save the bar of limitation. 6. It is next submitted by Mr. Sinha that since no dishonest or fraudulent act is there, on the part of the petitioners, hence, the offences punishable under Section 465 of IPC is not made out. Mr. Sinha, next relies upon the judgment of Hon’ble Supreme Court of India in the case of Sheila Sebastian vs. R. Jawaharaj & Anr. reported in (2018) 7 SCC 581, para 19, 25 and 30 of which reads as under : “19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e. making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete. 25. Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. 5 Cr.M.P. No. 454 of 2022 with 499 of 2022 30. Although we acknowledge the appellant's plight who has suffered due to alleged acts of forgery, but we are not able to appreciate the appellant's contentions as a penal statute cannot be expanded by using implications. Section 464 IPC makes it clear that only the one who makes a false document can be held liable under the aforesaid provision. It must be borne in mind that, where there exists no ambiguity, there lies no scope for interpretation. The contentions of the appellant are contrary to the provision and contrary to the settled law. The prosecution could not succeed to prove the offence of forgery by adducing cogent and reliable evidence. Apart from that, it is not as though the appellant is remediless. She has a common law remedy of instituting a suit challenging the validity and binding nature of the mortgage deed and it is brought to our notice that already the competent civil court has cancelled the mortgage deed and the appellant got back the property.” Hence, it is submitted by Mr. Sinha that the entire criminal proceeding including the FIR and the entire process of Ormanjhi P.S. case no. 190 of 2021 be quashed. 7. Learned counsel for the petitioners of Cr.M.P No. 499 of 2022 submits that even if the contents of the First Information Report is assumed to be true, still no prima facie case is made out against the petitioners because the allegation made therein, are against some other persons and no allegation has been made against the petitioner and the FIR do not make out a prima facie case for commission of offence by the petitioners. It is next submitted that none of the ingredient of the offences for which the FIR has been registered, is not made out. It is next submitted that the export trade in India is regulated by the Director General of Foreign Trade. The Export of goods is subject to legal and procedural formalities, before permission for the clearance is given by the customs and in this backdrop, the allegations made in the FIR is frivolous. It is next submitted that the case of the petitioners are covered by first illustration mentioned in para 102 of the case of State of Haryana and Others vs. Bhajan Lal and others reported in (1992) Sup (1) SCC 335, by which, the Hon’ble Supreme Court of India has laid down that where the allegations made in the First Information Report or the complaint, even if they are taken at their face value, and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, 6 Cr.M.P. No. 454 of 2022 with 499 of 2022 such FIR is to be quashed. It is also submitted that no offence for which, the FIR has been registered, is made out. 8. Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre reported in (1988) 1 SCC 692, para 7 of which reads as under : “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” It is submitted by the learned counsel for the petitioners that the courts have to take into consideration the special feature which appear in a particular case to consider whether it is expedient and in the interest of justice to permit prosecution to continue and the case in hand is such a special case. Learned counsel for the petitioner further relies upon the judgment of Hon’ble Supreme Court of India in the case of Rajiv Thapar and Ors. Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330, para 30 of which reads as under: “30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial 7 Cr.M.P. No. 454 of 2022 with 499 of 2022 conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.” and submits that in the said case, the Hon’ble Supreme Court of India has delineated the steps to determine the veracity of a prayer for quashing , raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C. and it is submitted that upon such determination, this case falls in a category where the entire criminal proceeding in connection with the Ormanjhi P.S. case no. 190 of 2021 be quashed. 9. Learned counsel for the petitioners next relies upon the judgment of Hon’ble Supreme Court of India in the case of Malkiat Singh & Anr. Vs. State of Punjab reported in (1969 ) 1 SCC 157, wherein, a case involving the offence punishable under Section 3(1) of the Essential Commodities Act, 1965 read with Punjab Act no. 34 of 1959 – Punjab Paddy (Export Control) Order, 1959, the Hon’ble Supreme Court of India has observed as in para 6:- 6. The question to be considered in this appeal is whether upon the facts found by the lower courts any offence has been committed by the appellants. It is not disputed that the truck carrying the paddy was stopped at Samalkha Barrier which is 32 miles from Delhi. It is also not disputed that the Delhi—Punjab Boundary was, at the relevant point of time, at about the 18th mile from Delhi. It is, therefore, evident that there has been no export of paddy outside the State of Punjab in this case. The truck with the loaded paddy was seized at Samalkha well inside the Punjab Boundary. It follows therefore that there was no export of paddy within the meaning of Para 2(a) of the, Punjab Paddy (Export Control). Order, 1959. It was however, argued on behalf of the respondent that there was an attempt on the part of the appellants to transport paddy to Delhi, and so there was an attempt to commit the offence of export. In our opinion, there is no substance in this argument. On the facts found, there was no attempt on the part of the appellants to commit the offence of export. It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus raus of a criminal attempt. The sufficiency of the actus raus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely 8 Cr.M.P. No. 454 of 2022 with 499 of 2022 preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his Digest of Criminal Law, Article 50, defines an attempt as follows: “an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.” 10. Learned counsel for the petitioners further relies upon the judgment of Hon’ble Supreme Court of India in the case of Ramesh Rajagopal vs. Devi Polymer Private Limited reported in (2016) 6 SCC 310, para 8, 12 and 13 of which reads as under :- “8. It might have been possible to attribute some criminal intent to the projection of Unit C as Devi Consultancy Services in the website, if as a result of such projection, the appellant had received any amounts separate from Devi Polymers (P) Ltd., but a perusal of the complaint shows that this is not so. Not a single rupee has been received by the appellant in his own name or even separately in the name of Unit C, which he is heading. All amounts have been received by Devi Polymers (P) Ltd. 12. In the absence of any act in pursuance of the website by which he has deceived any person fraudulently or dishonestly, induced anyone to deliver any property to any person, we find that it is not possible to attribute any intention of cheating which is a necessary ingredient for the offence under Section 468 IPC. 13. We find that the allegations that the appellant is guilty of an offence under the aforesaid section are inherently improbable and there is no sufficient ground of proceedings against the accused. The proceedings have been initiated against the appellant as a part of an ongoing dispute between the parties and seem to be due to a private and personal grudge.” and submits that in view of the said principle of law, settled by the Hon’ble Supreme Court of India, no offence as alleged; for which the FIR has been registered, is made out. Learned counsel for the petitioners further submits that in the common rejoinder affidavit to the counter affidavit, filed by the opposite party dated 20.07.2022 in para 15, the petitioners have mentioned that the deponent police officer, has made some absurd and false averments which are contrary to the undisputed materials in the record, which implied that the Investigating Officer is either 9 Cr.M.P. No. 454 of 2022 with 499 of 2022 incompetent or dishonest and instead of undertaking a fair investigation, he is harassing the petitioners at the behest of the complainant for extraneous considerations. Hence, it is submitted that the entire criminal proceeding in connection with the Ormanjhi P.S. case no. 190 of 2021 be quashed, as prayed for in Cr.M.P. No. 499 of 2022. 11. Learned Spl. PP and learned counsel for the O.P. No. 2 on the other hand, vehemently oppose the prayer for quashing entire criminal proceeding. Mr. Pandey Neeraj Rai, learned counsel for the opposite party no. 2 submits that there is direct and specific allegation in the FIR of a false document having been prepared, in shape of forged / altered invoice as exporter. It is next submitted by learned counsel for the opposite party no. 2 that there is ample evidence in the record to establish that the offence has been committed by the accused persons of the case, in respect of all offences, for which, the FIR has been registered. It is next submitted by Mr. Rai that these cases are at the nascent stage of investigation and only the notice under Section 41A of Cr.P.C has been issued to the petitioners. It is next submitted by Mr. Rai that there is no allegation made by any of the petitioners regarding the conduct of the investigating officer of this case and the wisdom of the Investigating Officer in issuing the notice cannot be questioned in the absence of any specific allegation against him, hence, these criminal miscellaneous petitions have been filed at a premature stage. It is further submitted by Mr. Rai that the petitioners are not co-operating with the investigation of the case by not supplying all the e-mails exchanged inter-se between them, as asked for by the Investigating Officer and they have come to the court to stall the investigation of the case, hence, it is submitted that both these criminal miscellaneous petitions being without any merit be dismissed. 12. Having heard the submissions made at the bar and after going through the materials in the record, this court finds that admittedly, none of the petitioners are named in the FIR and from the contents of the First Information Report, this court finds 10 Cr.M.P. No. 454 of 2022 with 499 of 2022 that there is specific allegation made out in the First Information Report that a false document in shape of forged / altered invoice as exporter was prepared with dishonest and fraudulent intention which makes out the offence punishable under Section 465 of the IPC albeit it has not been specifically mentioned that the petitioners have committed that offence. In the criminal miscellaneous petitions filed by the parties, there is no allegation against the Investigating Officer of the case with respect to any specific misconduct on his part, in conducting the investigation. The investigation is at its nascent stage. The allegations made in the FIR undisputedly reveals at least the cognizable offence punishable under Section 465 IPC. This court do not find any merit in the contention of the petitioners, in Cr. M.P.No. 454 of 2022 that any preliminary investigation ought to have been done before registration of the case because as such, there is no mandatory requirement of law that for registration of FIR, in respect of a cognizable offence punishable under Section 465 of IPC any preliminary investigation has to be done before registration of the case. It is a settled principle of law that the court should not enter into a mini trial in exercise of jurisdiction vested upon it under Section 482 CrPC, to test the veracity of the defence of the accused persons, of any case, as that would be the role of trial court, as has been held by the Hon’ble Supreme Court of India in the case of the State of Madhya Pradesh vs. Awadh Kishore Gupta & Ors. reported in 2004 2 SCC 501. 13. It is also a settled principle of law that in exercise of power under Section 482 CrPC, the genuine prosecution cannot be stifled with as has been held in the case of Monica Kumar (Dr. )and Another vs. State of Uttar Pradesh and others reported in (2008) 8 SCC 781. 14. Now as the petitioners are not named in the FIR and undisputedly the FIR reveals a prima facie case punishable under Section 465 of IPC, this court is not inclined to quash the entire criminal proceeding and the FIR in connection with Ormanjhi P.S. case no. 190 of 2021, hence, by such an order, the entire criminal 11 Cr.M.P. No. 454 of 2022 with 499 of 2022 prosecution will come to an end and the culprits who have committed the offences punishable under section 465 of the Indian Penal Code and other offences will go Scott free; which will not be in the interest of justice. 15. Accordingly, both these criminal miscellaneous petitions being without any merit is dismissed and consequently, the interim order passed earlier, stands vacated. 16. Let a copy of this judgment be sent to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated, the 5th July, 2023 Smita /AFR (Anil Kumar Choudhary, J.)