Case Analysis;
Mariam Fasihuddin & Anr. v. State by Adugodi Police Station & Anr.
Court: Supreme Court of India
Date: 22 January 2024
Citation: 2024 INSC 49;
Criminal Appeal No. 335 of 2024,
arising out of SLP (Crl.) No. 2877 of 2021
What the Supreme Court held
The Supreme Court quashed the FIR and all criminal proceedings against a woman and her father, who had been accused of forgeries on the husband’s signatures on an application for the minor child’s passport. The allegations did not prima facie disclose the ingredients of cheating under Sections 420 IPC, forgery under Sections 468 and 471 IPC, or an offence under Section 12(b) of the Passports Act, 1967.
A Bench comprising Justice Surya Kant and Justice Dipankar Datta held that merely taking a passport for a minor child – assuming that the father’s signatures had been used – did not amount to cheating unless there had been dishonest inducement, delivery of property or valuable security and resulting loss or injury to the complainant.
The Court also held that a private handwriting-expert report obtained by the complainant, unsupported by other substantive material and contradicted by an inconclusive State FSL report, could not safely form the basis of subjecting the appellants to a criminal trial. The criminal case also appeared to be a counterblast to the wife’s earlier complaint alleging cruelty and harassment.
Facts;
The first appellant, Mariam Fasihuddin, married Respondent No. 2 in Bengaluru on 2 August 2007. The husband was engaged in a software business in the United Kingdom and had allegedly represented that they would live together in London after marriage.
According to the appellants, the wife later travelled to London but was abandoned and confined at her sister-in-law’s residence. The husband returned to India, and the wife’s father intervened to enable her to return. A male child was born on 2 June 2008.
The appellants alleged that the husband and his family did not provide adequate financial support to his wife and child. In 2009, the wife sought a passport for the minor child at the husband’s instruction. A passport was issued, and the husband’s brother-in-law sent a sponsorship letter to the United Kingdom High Commission for the wife and child. The sponsorship letter specifically referred to the child’s passport number.
The marital relationship deteriorated following this, and the wife alleged physical and mental cruelty and financial demands by the husband. She lodged a complaint on 7 April 2010 before the Basavangudi Women Police Station, Bengaluru. The complaint was registered for offences under Sections 346, 498A and 506 read with Section 34 IPC.
One month later, on 13 May 2010, the husband lodged a counter-complaint alleging that the appellants had forged his signatures on the minor child’s passport and submitted the application to the Regional Passport Office while he was in the United Kingdom. FIR No. 141 of 2010 was registered under Sections 420, 468 and 471 read with Section 34 IPC.
The original chargesheet proceeded only under Section 420 because the investigating agency had initially dropped the forgery charges. After the husband sought further investigation, a supplementary chargesheet was filed, adding Sections 468, 471, 420, 120-B and 201 read with Section 34 IPC and Section 12(b) of the Passports Act.
The State FSL report stated that no opinion could be expressed on the photocopied signatures due to poor line quality. The supplementary chargesheet nevertheless relied on a report from a private agency, “Truth Lab”, which opined that the signatures did not closely resemble the husband’s specimen signatures.
The Magistrate refused to discharge the appellants, and the Karnataka High Court dismissed their revision petition. The Supreme Court was therefore called upon to decide whether the materials disclosed a prima facie case requiring the appellants to face trial.
Issue;
The Supreme Court addressed:
1. Whether the allegations prima facie constituted cheating under Section 420 IPC.
2. Whether the material disclosed the ingredients of forgery under Sections 468 and 471 IPC.
3. Whether the appellants committed an offence under Section 12(b) of the Passports Act, 1967.
4. Whether further investigation under Section 173(8) CrPC was valid when no genuinely new evidence had been collected.
5. Whether the criminal proceedings were an abuse of process, particularly in the context of an existing matrimonial dispute and a previous complaint by the wife against the husband.
Court’s reasoning
Ingredients of cheating were absent
The Court began by reciting the statutory ingredients of cheating.
Section 420 IPC is attracted where a person cheats and dishonestly induces the deceived person to deliver property, or to make, alter or destroy a valuable security or an instrument capable of being converted into a valuable security. Section 415 IPC defines cheating in terms of deception and fraudulent or dishonest inducement resulting in delivery or retention of property, or harm to the person deceived.
The Court identified three essential components:
• deception of a person;
• fraudulent or dishonest inducement causing delivery of property or a valuable security; and
• dishonest intention at the time of making the representation or inducement.
The Court stressed that dishonest intention must be present at inception. Subsequent failure, unlawful act or irregularity does not automatically establish cheating.
An unlawful act is not automatically a deceitful act
The Court accepted, for the purposes of analysis, that using the husband’s signature without authority could constitute an unlawful act. But it stressed that not every unlawfulness constituted “deceitful” act within the meaning of Section 420 IPC.
The prosecution failed to show how the alleged use of the husband’s signature induced him to part with property or a valuable security. The husband did not part with any movable or immovable property. Nor was there any allegation that he had been induced to deliver money, a valuable document or any proprietary interest.
The Court held that the passport was issued to the minor child. The benefit, if any, accrued to the child—not to the wife or her father at the expense of the husband. The grant of the passport did not cause the husband any identifiable financial loss, damage or injury. Thus, essential linkage between deception, inducement, delivery of property and injury was missing.[Attachment]
The child’s passport could not be treated as the husband’s property
The Court regarded the passport as an authorised document enabling the minor child to travel abroad. Its issuance was a statutory benefit or right conferred upon the child.
The Court found it significant that the passport was allegedly intended to facilitate the child’s travel to London and his residence with both parents. There was no allegation that the passport had been obtained to harm the child or deprive him of any legal entitlement.
The judgment therefore shifted the focus from the parents’ matrimonial conflict to the child’s welfare. The Court observed that the husband, as the child’s biological father and natural guardian, had not shown what property or legal interest he had lost because the child obtained a passport.
Forgery charges could not stand independently
The Court considered Sections 468 and 471 IPC together.
Section 468 concerns forgery committed with the intention that the forged document be used for cheating. Section 471 applies when a person fraudulently or dishonestly uses a document as genuine, knowing or having reason to believe it to be forged.
The Court identified two principal elements of forgery:
1. fabrication of a false document; and
2. an intention that the document be used for the purpose of cheating.
Since the essential ingredient of dishonest intention necessary for cheating was absent, the Court held that the forgery allegation also lacked a sustainable foundation. More importantly, the Court held that even the alleged fabrication of the husband’s signature could not be prima facie established on the material placed before it.
The State FSL had expressly declined to provide an opinion because the questioned signatures were photocopied and exhibited poor line quality. The private report of “Truth Lab” was not supported by independent evidence. The Court found no reliable basis for forcing the appellants to undergo a full criminal trial.
Further investigation must produce fresh evidence
The judgment contains an important discussion of Section 173(8) CrPC.
The Court held that “further investigation” means obtaining further oral or documentary evidence and submitting a supplementary report on the basis of that fresh material. It is not a mechanism for simply reassessing, re-evaluating or repackaging evidence that was available when the original chargesheet was filed.
In this case, the private laboratory report was already available before the original chargesheet. The investigating agency did not discover new evidence in further investigation. Instead, it relied on material that was previously available and added offences that had earlier been dropped.
The Court held that a supplementary chargesheet unsupported by genuinely new evidence lacks the investigative rigour contemplated by Section 173(8) CrPC. The Magistrate was therefore not bound to proceed on the basis of such a report.
Matrimonial dispute and counterblast
The Court attached great importance to the chronology.
The wife had first lodged a complaint alleging cruelty, financial demands and harassment. The husband’s complaint alleging passport forgery followed approximately one month later. The Court considered this relevant to the appellants’ contention that the passport case was a counterblast.
The Court found that the lower courts had failed to appreciate that the case had arisen out of a matrimonial dispute and not a conventional property or commercial fraud. The allegations did not show that the wife or her father had sought to obtain the husband’s property or valuable security.
The Court cautioned that criminal law should not be deployed as a weapon in matrimonial litigation, when the basic ingredients of the alleged offences are absent. It held that continuing the proceedings in these circumstances amounted to an abuse of the process of law.[Attachment]
Section 12(b) of the Passports Act
Section 12(b) of the Passports Act penalises knowingly furnishing false information or suppressing material information with a view to obtaining a passport or travel document.
The Court held that the provision requires proof of knowledge and intentional furnishing of false or suppressed information. The inconclusive State FSL report did not establish that the husband’s signatures had been forged. The Court also noted that cognizance of such an offence could be taken only at the instance of the prescribed authority, and no such complaint was shown to have been filed.
The Court therefore refused to invoke the provision on the basis of conjecture and an unsupported private report.
Child’s right to travel and best interests
The Court made an important constitutional observation on the minor child.
The right to travel abroad is a part of personal liberty, although it is subject to legally established restrictions. The Court referred to Maneka Gandhi v. Union of India and K.S. Puttaswamy v. Union of India in acknowledging the constitutional significance of travel, dignity and personal autonomy.
The Court held that the dispute had adversely affected the child’s interests. The child’s ability to travel abroad and the access to care, company and opportunities associated with both parents had been compromised by the conflict.
The Court stated that the best interests and dignity of the child must not be subordinated to the parents’ matrimonial dispute.
Key legal principles
• Cheating requires deception plus dishonest inducement: Section 420 IPC is not attracted because of an act that is merely unlawful or irregular.
• Dishonest intention must exist from inception: The fraudulent intention must be present at the time of the representation or inducement.
• No cheating without property, valuable security or injury: The prosecution must identify the property or valuable security delivered and the loss, damage or injury caused by the alleged deception.
• Forgery requires a false document and dishonest purpose: Sections 468 and 471 IPC require more than an allegation that a signature is unauthorised or questionable.
• Forgery under Section 468 must be connected with cheating: Where the underlying cheating allegation fails for want of dishonest intention, charge under Section 468 may also lack a sustainable foundation.
• Further investigation must be genuinely further: Section 173(8) CrPC requires further evidence; it does not allow the investigating agency to simply reconsider existing material.
• A supplementary chargesheet cannot be mechanical: A supplementary report based on previously available material may not satisfy the statutory requirement of further investigation.
• Private expert reports require caution: A paid private laboratory opinion, unsupported by independent evidence and contradicting or left unresolved by the State FSL, may be insufficient to establish a prima facie case.
• Matrimonial disputes require judicial caution: Courts must consider whether criminal allegations are being used as a counterblast to convert a matrimonial dispute into criminal prosecution.
• The child’s welfare is distinct from parental conflict: A child’s statutory and constitutional interests cannot be treated as the property or personal entitlement of either parent.
• Right to travel is constitutionally protected: The right to travel abroad forms part of personal liberty, subject to procedure established by law.
• Criminal proceedings may be quashed at the threshold: Where the foundational ingredients of the offences are absent, the continuation of the prosecution itself may amount to abuse of process.
Practical significance
This judgment is significant for cases where criminal allegations are added to matrimonial or child-custody disputes. It confirms that the label of “forgery” or “cheating” cannot substitute for proof of the precise statutory ingredients.
For complainants alleging cheating under Section 420 IPC, the complaint must clearly identify the deceptive representation, the dishonest intention at the time of the representation, the person deceived, the property or valuable security delivered and the resulting loss or injury. A complaint that merely alleges unauthorised use of a signature, without showing property-related injury, may not disclose an offence under Section 420.
For investigating agencies, the decision serves as a reminder that a further investigation under Section 173(8) CrPC must be meaningful and evidence-based. If the initial investigation does not show the charges of forgery, the agency must obtain fresh evidence before filing a supplementary report. A previously available private report cannot be presented as newly discovered material.
For Magistrates, the judgment reminds them that the application of the statutory ingredients before directing an accused to face trial is their duty. At the discharge stage, the court is not required to conduct a full-fledged appreciation of evidence, but it must decide whether the material, taken at its highest, discloses the essential elements of the offence.
The decision is also beneficial in defending prosecutions allegedly filed as counterblasts. The timing of the complaint, the nature of the underlying dispute, absence of financial injury, existence of prior matrimonial proceedings and inconsistency of expert evidence may collectively justify quashing under the court’s inherent jurisdiction.
The ruling does not hold that forging a signature can never constitute cheating or forgery. Its holding is fact-sensitive: in this case, there was no identifiable inducement to part with property and no demonstrable injury to the husband. The reliability of proof of forgery and the validity for invoking the Passports Act were also not established.
Relevant provisions;
Section 415, Indian Penal Code, 1860
Section 415 IPC defines cheating. It requires deception and fraudulent or dishonest inducement that causes the person deceived to deliver or retain property, or to suffer damage or harm.
The Supreme Court treated Section 415 as the foundational provision for analysing the Section 420 allegation. It stressed that deception alone is insufficient; the deception must produce the legally relevant consequence specified in the provision.
Section 420, Indian Penal Code, 1860
Section 420 IPC punishes cheating accompanied by dishonest inducement to deliver property or to make, alter or destroy a valuable security.
The Court held that the prosecution failed to demonstrate any property or valuable security delivered by the husband, or any loss or injury suffered by him because of the child’s passport.
Section 468, Indian Penal Code, 1860
Section 468 penalises forgery intended to be used for the purpose of cheating. The prosecution must therefore establish not merely the existence of a false document but also the requisite dishonest intention and its intended use for cheating.
Section 471, Indian Penal Code, 1860
Section 471 applies where a person fraudulently or dishonestly uses a forged document as genuine, knowing or having reason to believe that it is forged.
The Court found that neither the forgery nor the requisite dishonest use was prima facie established.
Section 34, Indian Penal Code, 1860
Section 34 attributes joint liability when a criminal act is done by several persons in furtherance of their common intention.
Because the substantive offences themselves were not prima facie established, the allegation of common intention under Section 34 could not independently sustain the prosecution.
Sections 120-B and 201, Indian Penal Code, 1860
Section 120-B concerns criminal conspiracy, while Section 201 relates to causing disappearance of evidence or giving false information to screen an offender.
The Court’s reasoning on the absence of any reliable foundational offence also undermined the continued prosecution under these ancillary provisions.
Section 173(8), Code of Criminal Procedure, 1973
Section 173(8) permits further investigation after submission of the police report. The Supreme Court held that further investigation requires the collection of further oral or documentary evidence. It cannot be reduced to a mechanical reassessment of evidence already available to the investigating agency.
Section 239, Code of Criminal Procedure, 1973
Section 239 enables a Magistrate to discharge an accused in a warrant case instituted on a police report when, after considering the police report and documents and hearing the prosecution and accused, the charge is found to be groundless.
The Supreme Court’s decision demonstrates that discharge is appropriate where the allegations and materials do not disclose the basic ingredients of the offences alleged.
Section 12(b), Passports Act, 1967
Section 12(b) penalises knowingly furnishing false information or suppressing material information for obtaining a passport or travel document.
The Court held that knowledge and intentionality must be established. It further noted the procedural requirement concerning cognizance by the prescribed authority and found no disclosed complaint satisfying that requirement.
Final order
The Supreme Court:
• allowed the appeal;
• set aside the Karnataka High Court’s order dated 18 February 2021;
• set aside the Trial Magistrate’s order dated 15 March 2018;
• quashed FIR No. 141 of 2010 registered at Adugodi Police Station, Bengaluru;
• quashed all proceedings arising from the FIR; and
• directed Respondent No. 2 to pay costs of ₹1,00,000 to the first appellant within six weeks.
The Court further directed that, in default of payment, the Trial Magistrate should initiate coercive recovery proceedings.
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Full Judgment;
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.335/ 2024
(Arising out of Special Leave to Appeal (Crl.) No. 2877/2021)
Mariam Fasihuddin & Anr. ….Appellant(s)
versus
State by Adugodi Police Station & Anr. ….Respondent(s)
JUDGEMENT
SURYA KANT, J.
Leave granted.
2. The Appellants assail the judgment dated 18.02.2021, passed by the High Court of Karnataka, at Bengaluru (hereinafter, ‘High Court’), whereby their Criminal Revision Petition challenging the order dated 15.03.2018 of the VI Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter, ‘Trial Magistrate’) has been dismissed. Consequently, the Appellants’ prayer to discharge them in connection with FIR No. 141/2010 under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code, 1860 (hereinafter, ‘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 allege that Respondent No. 2 and his family members did not provide any financial assistance to the Appellant – wife and the minor child. In January, 2009, the Appellant – wife sought to obtain a passport for the minor child based allegedly upon Respondent No. 2’s instructions. Respondent No. 2 also assured them that he had arranged their stay in the United Kingdom. Shortly thereafter, the minor child’s passport was issued, and Respondent No. 2 obtained a sponsorship letter from his brotherinlaw, Dr. M.K. Shariff, which was duly forwarded to the United Kingdom High Commission. The sponsorship letter stated that Dr. M.K. Shariff would accommodate the Appellant – wife and the minor child during their visit to the United Kingdom and specifically mentioned the minor child’s passport number.
3.3. However, as per the allegations of the Appellants, the duration of marriage with Respondent No. 2 was fraught with physical and mental torture solely on account of Respondent No. 2’s relentless financial demands. More pertinently, Respondent No. 2, during his visit to India towards the end of 2009, subjected the Appellant – wife to coercion and torture. These acts of intimidation prompted the Appellant – wife to file a complaint against Respondent No. 2 and his family members on 07.04.2010 before the Basavangudi Women Police Station, Bengaluru. The complaint was registered as Crime No. 68 / 2010, under Sections 346, 498A and 506, read with Section 34 IPC. Additionally, the complaint alleges that Respondent No. 2, on the pretext of arranging for their travel to the United Kingdom, took away the minor child’s passport and jewellery items belonging to the Appellant – wife.
3.4. Having learnt of the complaint filed by his wife, Respondent No. 2 also lodged a complaint of his own on 13.05.2010 before the Adugodi Police Station, alleging that the Appellants had forged his signatures on the minor child’s passport application and submitted the same to the Regional Passport Office, Bengaluru, at the time when Respondent No. 2 was in the United Kingdom. This complaint was registered as FIR No. 141/2010 under Sections 420, 468 and 471 read with Section 34 IPC (hereinafter, ‘Concerned FIR’).
3.5. Following the investigation conducted in the Concerned FIR, the investigating agency proceeded to file a chargesheet, implicating the Appellants and one Mr. Aksar Ahmed Sheriff, who is a 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 complainant, to furnish necessary evidence before the investigating officer, if so required. On the other hand, the Trial Magistrate dismissed the Appellants’ discharge application on the ground that the question as to whether an offence under Section 420 IPC was made out or not would be decided during the course of trial.
3.8. Pursuant to the abovementioned order of the Trial Magistrate, the investigating agency filed a supplementary chargesheet against the Appellants on 25.07.2017, adding offences under Sections 468, 471, 420, 120B and 201 read with Section 34 IPC and Section 12(b) of the Passports Act, 1967. At this juncture, it is imperative to highlight that the concerned Passport Officer was also implicated as Accused No. 4, for allegedly providing false information regarding the availability of the original passport of the minor child and being complicit with the Appellants in its destruction. The supplementary chargesheet also referred to a report provided by the State Forensic Laboratory, Madiwala, Bengaluru, dated 27.02.2016 (hereinafter, ‘State FSL’), which categorically states as follows:
“Opinion on questioned photocopied signatures marked as Q1 to Q4 is not expressed since, the questioned photocopied signatures are showing bad line quality of strokes.”
3.9. In addition to the State FSL Report, the supplementary chargesheet also mentioned a report dated 15.07.2013 purportedly obtained by Respondent No. 2 from a private agency, known as, ‘Truth Lab’. This report opined that the signatures on the passport application did not signify a close resemblance with the specimens of Respondent No. 2’s signatures.
3.10. Subsequent to these developments, when the case CC No. 23545 / 2011 was taken up for hearing before charge, it was urged on behalf of the Appellants that there were no grounds to frame charges. However, the Trial Magistrate repelled this contention by order dated 15.03.2018 and declined to discharge them.
3.11. The Appellants preferred to challenge the Trial Magistrate’s order vide Criminal Revision Petition No. 692 / 2018, but as noticed at the outset, the High Court dismissed the same via the impugned order dated 18.02.2021, primarily on the ground that there were specific allegations against the Appellants which required a fullfledged trial.
3.12. The aggrieved Appellants are now before this Court.
B. CONTENTIONS OF THE 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 handwriting expert obtained by Respondent No. 2 through a private agency – known as the Truth Lab. He vehemently urged that the State FSL Report should have been given utmost weightage in comparison to a paid opinion so as to uphold the fairness and impartiality of the investigation. Mr. Yadav contended that no prima facie case had been made out against the Appellants. Citing the decision of this Court in Krishna Chawla v. State of UP,[1] he emphasised upon the duty of the Trial Magistrate to nip frivolous prosecution in the bud before it reaches the trial stage by discharging the accused in fit cases.
6. Contrarily, Mr. Narender Hooda, Learned Senior Counsel representing Respondent No. 2, strongly refuted the allegations levelled by the Appellants. He strenuously urged that Respondent No. 2 was not present in India during the period from 13.07.2008 to 17.11.2009, when the alleged passport application with his forged signatures was submitted, to procure the minor child’s passport. He further argued that the Trial Magistrate has unequivocally observed that the Passport Officer (Accused No. 4), who deliberately withheld the original passport application, was an accomplice in the offence of the destruction of evidence. Additionally, Mr. Hooda objected to discarding the Truth Lab report at the stage of deciding the discharge application on the premise that the report of the State FSL was ambiguous and that the veracity of the private lab report could be ascertained only at the time of trial.
7. In addition to the full insight of the controversy, as highlighted by the learned counsel for the parties, we have also meticulously perused the chargesheets and other documents brought on record by them.
C. ISSUES FOR CONSIDERATION
8. The foremost question that falls for consideration before us is whether a prima facie case, to subject the Appellants to the agony of trial, has been made out. In furtherance of this question, the following issues emerge for our further consideration:
(i) Whether the actions of the Appellants prima facie constitute the offence of cheating under Section 420 IPC?
(ii) Whether there has been a prima facie case made out for forgery under Sections 468 and 471 IPC?
(iii) Whether there has been a violation of Section 12(b) of the Passports Act, 1967?
D. ANALYSIS
9.In the present case, charges have been brought against the Appellants for offences punishable under Sections 420, 468, 471, 120B, 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 ‘cheating’ if it is intended to induce the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, causing damage or harm to that person.
11. It is thus paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property.
There are, thus, three components of this offence, i.e., (i) the deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea or dishonest intention of the accused at the time of making the inducement. There is no gainsaid that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.
12. It is well known that every deceitful act is not unlawful, just as not every unlawful act is deceitful. Some acts may be termed both as unlawful as well as deceitful, and such acts alone will fall within the purview of Section 420 IPC. It must also be understood that a statement of fact is deemed ‘deceitful’ when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss.[2] ‘Cheating’ therefore, generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or any part of a valuable security, prompting the induced person to undertake the said act, which they would not have done but for the inducement.
13. The term ‘property’ employed in Section 420 IPC has a welldefined connotation. Every species of valuable right or interest that is subject to ownership and has an exchangeable value – is ordinarily understood as ‘property’. It also describes one’s exclusive right to possess, use and dispose of a thing. The IPC itself defines the term ‘moveable property’ as, “intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.” Whereas immoveable property is generally understood to mean land, benefits arising out of land and things attached or permanently fastened to the earth.
14. Having 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’. In the peculiar facts and circumstances of this case, the Appellant – wife seems to have breached the notion of mutual marital trust and unauthorizedly projected Respondent No. 2’s consent in obtaining the passport for their minor child. It, however, remains a question as to how such an act can be labelled as ‘deceitful’. The motivations prompting either of the Appellants to procure a passport for the minor child were not rooted in deceit. Furthermore, the grant of passport to the minor child did not confer any benefit upon the Appellantwife, nor did it result in any loss or damage to Respondent No. 2. In the same vein, Appellant No. 2, being the father of the Appellant – wife and assisting in securing the passport for the chid, derived no direct or indirect benefit from this action.
17. In this context, the critical inquiry arises: how does the act of forging signatures on the passport application, aimed at obtaining the minor child’s passport, amount to inducing Respondent No. 2 to relinquish any property or valuable security? Examining the situation, it becomes apparent that the aforementioned act does not entail inducement leading to the parting of any property by Respondent No. 2. The nature of the property which can be claimed to have been relinquished or the tangible loss, damage, or injury, if any, suffered by Respondent No. 2 are not visible at all. The unequivocal response to these queries is clearly in the negative.
18. Respondent No. 2, the biological father and natural guardian of the minor child, is positioned as such in relation to the grant of a passport to his son. This grant can be best characterised as the minor child’s acquisition of property. Since the gain by the minor child is not at the cost of any loss, damage or injury to Respondent No. 2, both the fundamental elements of ‘deceit’ and ‘damage or injury’, requisite for constituting the offence of cheating are conspicuously absent in this factual scenario.
19. Conversely, can the Appellant – wife, being the natural mother of the child and a natural guardian, be accused of acting `dishonestly’ when applying for the passport of her minor child? A passport, is an authorised instrument which enables a person to travel outside the country of his origin. In this case, the passport was admittedly issued in favour of the minor child. Whether it was stolen by Respondent No. 2 or misplaced, 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 must fall flat.
The offence of forgery under Sections 468 and 471 IPC:
21. The offence of ‘forgery’ under Section 468 IPC postulates that whoever commits forgery, intending that the document or electronic document forged, shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Whereas Section 471 IPC states that whoever fraudulently or dishonestly uses as genuine any documents which he knows or has reason to believe it to be a forged document, shall be punished in the same manner as if he had forged such document.
22. There are two primary components that need to be fulfilled in order to establish the offence of ‘forgery’, namely: (i) that the accused has fabricated an instrument; and (ii) it was done with the intention that the forged document would be used for the purpose of cheating. Simply put, the offence of forgery requires the preparation of a false document with the dishonest intention of causing damage or injury.[3]23. The offences of ‘forgery’ and ‘cheating’ intersect and converge, as the act of forgery is committed with the intent to deceive or cheat an individual. Having extensively addressed the aspect of dishonest intent in the context of ‘cheating’ under Section 420 IPC, it stands established that no dishonest intent can be made out against the Appellants. Our focus therefore will now be confined, for the sake of brevity, to the first element, i.e., the preparation of a false document. The determination of whether the Appellants prepared a false document, by forging Respondent No. 2’s signature, however, cannot be even prima facie ascertained at this juncture. Considering the primary ingredient of dishonest intention itself could not be established against the Appellants, the offence of forgery too, has no legs to stand. It is also significant to highlight that the proceedings as against the concerned Passport Officer, who was implicated as Accused No. 4, already stand quashed. In such like situation and coupled with the nature of allegations, we are unable to appreciate as to why the Appellants be subjected to the ordeal of trial.
24. That apart, there are glaring procedural irregularities that have been overlooked by the Trial Magistrate, which 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 officerincharge of the concerned police station to ‘obtain further
evidence, oral or documentary’, and only then forward a
supplementary report regarding such evidence, in the prescribed form.
27. The provision for submitting a supplementary report infers that fresh oral or documentary evidence should be obtained rather than reevaluating or reassessing the material already collected and considered by the investigating agency while submitting the initial police report, known as the chargesheet under Section 173(2) CrPC.[4]In the absence of any new evidence found to substantiate the conclusions drawn by the investigating officer in the supplementary report, a Judicial Magistrate is not compelled to take cognizance, as such a report lacks investigative rigour and fails to satisfy the requisites of Section 173(8) CrPC. What becomes apparent from the facts on record of this case is that the investigating agency acted mechanically, in purported compliance with the Trial Magistrate’s order dated 24.06.2015.
28. Regrettably, the Trial Magistrate, while directing further investigation, overlooked the significant aspect that the offences imputed upon the Appellants fall within the ambit of Chapter XVII,
‘Of Offences Against Property’, and Chapter XVIII, ‘Of Offences Relating to Documents and to Property Marks’ of the IPC. All the offences delineated or illustrated under these two chapters predominantly pertain to commercial or property disputes arising from dishonest, deceitful and fraudulent transactions, wherein an individual is induced to part with their property or valuable security, leading to subsequent injury or damage. These offences typically diverge from the customary realm of matrimonial disputes, which constitute the underlying cause in this instance.
29. The Trial Magistrate, prior to entertaining the application filed by Respondent No. 2, should have applied his mind and posed certain queries in order to find out as to: (i) Why does Respondent No. 2 want to deprive his minor child of a passport?; (ii) Is it the case that he did not want his minor child to join his company in London?; (iii) How has Respondent No. 2 secured the maintenance, education and future prospects of the minor child?; (iv) Does the minor child have a civil right to hold a passport even if one of his parents does 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 Magistrate’s order for further investigation. The basis on which the Trial Magistrate formed a prima facie opinion, in the absence of such supporting evidence is, therefore, beyond our comprehension.
31. The Trial Magistrate and the High Court unfortunately failed to appreciate that the genesis of the present controversy lies in a marital dispute. Respondent No. 2 is alleged to have abandoned the Appellant – wife and the minor child, even during the period when the Appellant – wife was temporarily residing with him in London. The timeline in this case is noteworthy: immediately after the Appellant – wife filed Crime No. 68 / 2010 against Respondent No. 2 on 08.04.2010, invoking Sections 346, 498A, 506, and 34 IPC, the countercomplaint by Respondent No. 2 followed on 13.05.2010. Further, the passport for the minor child was issued sometime in 2009. The question that naturally arises is whether it is a mere coincidence that Respondent No. 2 chose to make his complaint only after an FIR had been lodged against him.
32. On the one hand, there is no indication whatsoever that Appellant No. 1 ever endeavoured to deceive or induce Respondent No. 2 into parting with his movable or immovable property or valuable security, either for her benefit or that of the minor child. While on the other hand, the law imposes an obligation upon Respondent No. 2 to provide adequate maintenance to his wife and the minor child. The complaint lodged by Respondent No. 2 on 13.05.2010, while unleashing accusations of forgery and fabrication, is conveniently silent on what measures he has undertaken for his minor child’s
welfare.
33. In light of these circumstances, the Trial Magistrate should have approached the complaint with due care and circumspection, recognising that the allegations do not pertain to offences against property or documents related to property marks. Instead of wielding judicial authority against the Appellants, the Trial Magistrate should have exercised prudence, making at least a cursory effort to discern the actual ‘victim’ or ‘victimiser’. The failure to do so is both fallible and atrocious.
34. The sum and substance of the above discussion is that the elementary ingredients of ‘cheating’ and ‘forgery’ are conspicuously missing. Thus, the continuation of the criminal proceedings against the Appellants is nothing but an abuse of the process of law.
In the context 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 instance of the Prescribed Authority. No complaint to that effect has been disclosed against the Appellants. This Court, therefore, will exercise caution before invoking such severe offences and penalties solely on the basis of conjectures and surmises.
The conduct exhibited by Respondent No. 2:
37. Having scrutinised the elements of cheating and forgery, it is also imperative to consider the conduct of Respondent No. 2 since the inception. Firstly, following the solemnisation of the marriage between the concerned parties, the Appellant – wife purportedly endured both physical and mental torture and was further not extended any support by Respondent No. 2 and his family members even after the birth of the minor child. Secondly, the original passport of the minor child was presumed to have been issued with the consent and support of Respondent No. 2. He allegedly even sponsored the travel of his wife and minor son through his brotherinlaw for visa purposes, who in his sponsorship letter explicitly cited the passport number of the minor child. Thirdly, Respondent No. 2 chose to lodge the Concerned FIR as a counterblast to the complaint filed by the Appellant – wife in Crime No. 68/2010 in spite of being fully aware of the issuance of the minor child’s passport. Thus, the Appellants were unnecessarily implicated and dragged into criminal proceedings, thereby causing undue hardship to them. These instances shed light on Respondent No. 2’s conduct preceding the initiation of the present proceedings and provide insight into his motivations for instigating the same.
38. It is undeniable that despite the evident discord between the Appellants and Respondent No. 2, resulting in numerous complaints and legal proceedings, the issue at hand has adversely impacted the rights and interests of the minor child. The right to travel abroad is a fundamental right of an individual, albeit not absolute, and subject to established legal procedures.[5] The conduct exhibited by Respondent No. 2 infringes upon the best interests of the minor child, which necessitates the child’s travel abroad for the realisation of opportunities and intrinsic value, aligning with the child’s dignity, as enshrined by the Constitution.[6]
E. CONCLUSION AND DIRECTIONS
39. Consequently, the appeal is allowed; the impugned judgment of the High Court dated 18.02.2021, and that of the Trial Magistrate dated 15.03.2018, are hereby set aside. As a sequel thereto, the FIR No. 141 / 2010 registered at Police Station Adugodi, Bengaluru under Sections 420, 468, 471 read with Section 34 IPC, lodged by Respondent No. 2 against the Appellants and all the proceedings arising therefrom are hereby quashed.
40. Respondent No. 2 is liable to pay the cost of Rs. 1,00,000/ to Appellant No. 1. Ordered accordingly, Respondent No. 2 shall pay the costs within six weeks, failing which the Trial Magistrate is directed to initiate coercive measures for recovery thereof.
….…………………….., J. [SURYA KANT]
…………………………., J.
[DIPANKAR DATTA]
NEW DELHI; DATED: 22012024
[1] (2021) 5 SCC 435, para 23.
[2] P. Ramanatha Aiyar, Advanced Law Lexicon, 6th Edition, Vol. 1, pg. 903.
[3] Sushil Suri v. Central Bureau of Investigation, (2011) 5 SCC 708, para 26.
[4] Vinay Tyagi v. Irshad Ali and others, (2013) 5 SCC 762, para 22.
[5] Maneka Gandhi v. Union of India and another (1978) 1 SCC 248, paras 76, 8085.
[6] K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1, paras 376379.
