Bombay High Court
Dr. Satish Sudhakar Patil vs The State Of Maharashtra And Anr on 21 December, 2017
Bench: V. V. Kankanwadi
(Judgment) (1) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Application No. 01414 of 2017
District : Aurangabad
Dr. Satish Sudhakar Patil,
Age : 51 years,
Occupation : Service,
R/o. R.H. No.A-5, .. Applicant
Jabinda Residency, (Original
Devanagri, Aurangabad. accused no.02)
versus
1. The State of Maharashtra,
Through Police Station Officer,
Police Station, Begumpura,
District Aurangabad.
2. Dr. B.L. Chavan,
Age : 47 years,
Occupation : Service,
R/o. Plot No.36,
Vijay Deshmukh Nagar,
Vijapur Road, Solapur,
Taluka & District Solapur,
At present
R/o. Department of
Environmental Science,
Dr. Babasaheb Ambedkar
Marathwada University, .. Respondents
University Campus, (No.02 - Original
Aurangabad. complainant)
...........
Mr. Santosh G. Chapalgaonkar, Advocate, for the
applicant.
Mr. A.R. Kale, Addl. Public Prosecutor, for
respondent no.01.
Mr. Ashwin V. Hon, Advocate, for respondent no.02.
...........
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(Judgment) (2) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
With
Criminal Application No. 01738 of 2017
District : Aurangabad
Vinayak s/o. Popat Dhulap,
Age : 32 years,
Occupation : Service,
R/o. Samarth Nagar,
Barshi Road, .. Applicant
Bale-Solapur, (Original
Dist. Solapur. accused no.01)
versus
1. The State of Maharashtra,
Through : The Police Inspector,
Police Station, Begumpura,
Aurangabad.
2. Dr. Balbhim s/o. Laxman Chavan,
Age : 46 years,
Occupation : Service,
R/o. Plot No.36,
Vijay Deshmukh Nagar, .. Respondents
Vijapur Road, Solapur, (No.02 - Original
District Solapur. complainant)
...........
Mr. Sujeet D. Joshi, Advocate, for the applicant.
Mr. A.R. Kale, Addl. Public Prosecutor, for
respondent no.01.
Mr. Vinod P. Patil, Advocate, for respondent no.02.
...........
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(Judgment) (3) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving the
judgment : 23rd November 2017.
Date of pronouncing the
judgment : 21st December 2017
JUDGMENT :
01. Rule. Rule made returnable forthwith.
02. Both the applications arise out of same
proceedings and the relief claimed in both the
applications is the same, hence taken up for final
hearing at the admission stage, with consent of all
the parties.
03. Both applicants have invoked the jurisdiction
of this Court under Section 482 of the Code of
Criminal Procedure, 1973, in order to challenge the
order of issuance of process against them in RCC No.
1640 of 2015 passed by the Judicial Magistrate (F.C.),
Court No.21, Aurangabad, on 31-01-2017. Applicants in
both the applications are original accused nos. 2 and
1 respectively. Respondent No. 2 in both the
applications is the original complainant. I would
prefer to address the parties as they are before the
trial Court for the sake of convenience.
04. The factual matrix leading to the applications
are that the complainant was serving as Associate
Professor with Dr. Babasaheb Ambedkar Marathwada
(Judgment) (4) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
University, Aurangabad in 2009. Accused No. 1 had
registered himself for Ph. D. Complainant was assigned
as 'guide' for accused No. 1. Complainant has
contended that he had helped accused No. 1 in
research, guided him for publication of his research
papers / thesis. It has been alleged that accused No.
changed against the provisions and consent of
complainant. They have conspired with each other to
get said order on 21-02-2014. Said 'change of guide'
is illegal and has caused harm to the reputation of
the complainant in educational field. The change of
guide has affected the copy right of the complainant
on the research papers / thesis. It was necessary to
have signature on the progess report of accused No. 1
for the period between 2009 to 2013 or there should
have been consent of the complainant. However, accused
No. 2 has signed those reports, though he was not
'guide' at that time. There is no mention of date on
the reports. Accused Nos. 1 and 2 have thereby cheated
and prepared false documents. Accused No. 1 is getting
benefit of those documents. Therefore, complainant
contends that accused Nos. 1 and 2 have committed
offence punishable u/s. 420,465,471,34 of Indian Penal
Code.
05. It appears that after the complaint was filed,
verification has been recorded, when it was found that
accused No. 1 is not resident of jurisdiction of
concerned Magistrate, the report under Section 202 of
(Judgment) (5) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
Code of Criminal Procedure was called.
06. After the report was submitted, learned
Magistrate has passed the order of issuance of process
against both the accused. The said order is under
challenge in these applications.
07. It has been argued on behalf of the
applicants, that learned Magistrate failed to consider
the fact that the complaint does not disclose
ingredients of the offences mentioned in the
complaint. Accused No. 1 had changed his guide because
of the differences those arose between him and the
complainant. He could see that the complainant was
harassing him and because of the same he was not able
to complete his Ph. D. within stipulated time. The
change of guide was as per the rules and it has been
done by the appropriate authority of the University.
Complainant had even challenged the said order of
change of guide before this Court, but the said writ
petition was dismissed. The progress reports of
accused No. 1 were not certified by complainant and
therefore, they were required to be certified / signed
by accused No. 2. A clear note thereof has been filed.
Thesis is written by accused No. 1 and therefore he
has every right over the same. There was no question
of forging of the documents. Unnecessarily both the
accused persons have been harassed by the complainant.
08. Per contra, it has been submitted on behalf of
(Judgment) (6) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
respondent No. 2 / complainant that the 'change of
guide' was against the rules and it was with ulterior
motive to defame the complainant. Complainant was the
guide of accused No. 1 from 2009 to 2014, therefore
his signatures ought to have been taken on the
research papers. The research papers submitted by the
accused persons show that they have been signed by
accused No. 2. He was not appointed as 'guide' of
accused No. 1 during that period. He had no authority
to sign those documents. This amounts to forging the
documents. The "act of change of guide" was made in
conspiracy and thereby complainant has been cheated.
Learned Magistrate has taken into consideration the
facts alleged in the complaint and report u/s. 202 of
Code of Criminal Procedure. A proper and legal order
has been passed and therefore there is no necessity to
interfere with the same. When there is prima facie
case made out, the complaint can not be quashed u/s.
482 of Code of Criminal Procedure.
09. What is not in dispute is that the accused No.
1 was prosecuting Ph. D. and complainant was his
'guide' during 2009 to 2014. It appears that on his
application, 'guide' was changed by the University. As
regards the point as to whether the said change was
permissible or not, appears to have been settled by
this Court; when the writ petition No. 9782 of 2014
filed by complainant has been rejected. Complainant
now contends that the said change in 'guide' was a
part of conspiracy to cheat him. If we consider the
(Judgment) (7) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
relevant averments in the complaint, then it can be
seen that complainant has stated that such change of
guide, against the provisions, amounts to cheating the
University. He has not given details as to how he has
been cheated. He has not filed the complaint on behalf
of University, nor he claims that he has been
authorized by University to file the complaint. The
complainant has not come with a case that there was
any way direct transaction between him and accused No.
1 to assist accused No. 1 in the completion of Ph. D.
In fact he was given / allotted as 'guide' to accused
No. 1 by the University. In fact a 'guide' plays a
very important role in the entire process viz.,
identification of the topic of research, formulation
of the problem in a manner that is appropriate for the
degree, guidance about the nature of research, modes
available to make research and the standard expected,
planning research so as to complete it in accordance
with the time table specified by the university,
writing the thesis and getting it examined. Therefore,
the relationship between the guide and the Ph. D.
aspirant should be cordial and faithful. However, in
the present case, it appears that the relation between
complainant and accused got strained. Accused No. 1
had approached the University for change of the
'guide' and accordingly the change was effected.
Accused No. 2 was allotted as 'guide' to accused No. 1
after 2014.
10. It is now required to be seen whether the
(Judgment) (8) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
complaint filed by the complainant discloses the
ingredients of the offences for which process has been
issued. Under Sec. 415 of Indian Penal Code a person
is said to cheat when he by deceiving another person
fraudulently or dishonestly induces the person so
deceived to deliver any property to him or to consent
that he shall retain any property or intentionally
induces the person so deceived to do or omit to do
anything which he would not do or omit if he was not
so deceived and which act or omission causes or is
likely to cause damage or harm to that person in body,
mind, reputation or property. In State of Kerala v/s.
A. Pareed Pillai and another reported in AIR 1973 SC
326 it has been ruled that, "To hold a person guilty
of the offence of cheating, it has to be shown that
his intention was dishonest at the time of making the
promise and such a dishonest intention cannot be
inferred from a mere fact that he could not
subsequently fulfil the promise". Further in G. V. Rao
v/s. L. H. V. Prasad and others reported in (2000) 3
SCC 693 it has been held that, "As mentioned above,
Sec. 415 has two parts. While in the first part, the
person must "dishonestly" or "fraudulently" induce the
complainant to deliver any property; in the second
part, the person should intentionally induce the
complainant to do or omit to do a thing. That is to
say, in the first part, inducement must be dishonest
or fraudulent. In the second part, the inducement
should be intentional. That means intention to cheat
is the basic ingredient". It has been observed by
(Judgment) (9) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
Apex Court in Jaswantrai Manilal Akhaney v/s. State of
Bombay (AIR 1956 SC 575) that, "a guilty intention is
an essential ingredient of the offence of cheating. In
order, therefore, to secure conviction of a person for
the offence of cheating, "mens rea" on the part of
that person, must be established". It was also
observed in Mahadeo Prasad v/s. State of West Bengal
(AIR 1954 SC 724) that, "In order to constitute the
offence of cheating, the intention to deceive should
be in existence at the time when the inducement was
offered." Further in S. N. Palnitkar and others v/s.
State of Bihar and another (AIR 2001 SC 2960), it has
been laid down that, "In order to constitute an
offence of cheating, the intention to deceive should
be in existence at the time when the inducement was
made. It is necessary to show that a person had
fraudulent or dishonest intention at the time of
making the promise, to say that he committed an act of
cheating. A mere failure to keep up promise
subsequently cannot be presumed as an act leading to
cheating".
11. Thus, from the above said pronouncements, it
is clear that the complainant should show intention to
deceive (mens rea) as well as inducement. Here in this
case, major ingredients of the offence defined under
Sec. 415 of Indian Penal Code which is punishable u/s.
420 of Indian Penal Code are not shown by the
complainant. Complaint does not spell out facts of
alleged fraudulent or dishonest inducement by accused
(Judgment) (10) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
No. 1. Admittedly there was no direct dialog between
accused No. 2 and complainant regarding this matter;
therefore, there is no question of any inducement by
him. It is to be noted that the change of guide was as
per the request of accused No. 1 on account of the
differences between him and complainant. Those
differences went to such an extent that accused No. 1
was feeling that he is being harassed by the
complainant. His request was approved by the
University. Whether complainant ought to have been
heard by the University before change was effected or
not, will not add any ingredient of the offence to the
facts of the case. At the most, even after considering
it as it is for the sake of arguments, it would have
given civil remedy to the complainant, which he has
already exhausted, unsuccessfully. Said act to get
change in his guide by accused No. 1 does not amount
to 'mens rea'. Complainant has not disclosed the
events of ulterior motive which according to him had
prompted "change of guide" amounting to cheating. Mere
use of expression "cheating" in the complaint does not
amount to prima facie case for issuance of process.
Even if for the sake of arguments it is accepted that
the change of 'guide' was not permissible under the
provisions of University Rules; yet the said change of
guide, which has been done as per the orders of
University will not amount to "cheating" the
complainant. Therefore, the complaint was not at all
disclosing offence punishable u/s. 420 of IPC.
(Judgment) (11) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
12. Now turning towards offence punishable u/s.
465, 468 and 471 of IPC are concerned, complainant
should show that forgery has been committed or a false
document has been prepared and it has been used as
genuine. In order to show that a document is a 'false
document' ingredient of Sec.464 of IPC should be
considered. The condition precedent for an offence
under Sec. 467 and 471 is "forgery". In Md.Ibrahim &
Ors vs State Of Bihar & Anr (2009(8) SCC 751) the
essential ingredients have been considered. "An
analysis of Sec. 464 of Penal Code shows that it
divides false documents into three categories:
1) The first is where a person dishonestly or fraudulently makes or executes a
document with the intention of causing it to be believed that such document
was made or executed by some other person, or by the authority of some other
person, by whom or by whose authority he knows it was not made or
executed.
2) The second is where a person dishonestly or fraudulently, by cancellation
or otherwise, alters a document in any material part, without lawful
authority, after it has been made or executed by either himself or any other
person.
3) The third is where a person dishonestly or fraudulently causes any person
to sign, execute or alter a document knowing that such person could not by
reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception
practised upon him, know the contents of the document or the nature of the
alteration.
In short, a person is said to have made a `false document', if (i) he made
(Judgment) (12) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
or executed a document claiming to be someone else or authorised by someone
else; or (ii) he altered or tampered a document; or (iii) he obtained a
document by practicing deception, or from a person not in control of his
senses".
13. Taking into consideration the above
ingredients of the offence, we are required to see
whether these criteria are fulfilled in present case.
Complainant has stated that the research papers /
progress reports are the forged documents or false
documents. Admittedly, the research is done by accused
No. 1 and he has written the thesis. It is his literal
work. Therefore, he has right over the said work.
Those research papers can not be 'false documents' for
him. A person can not be said to have prepared 'false
document', when that document is owned and prepared by
himself. Complainant has stated that since he was the
guide of accused No. 1 for the period 2009 to 2014,
his signatures ought to have been taken on progress
reports. Merely because he has not signed it and those
documents ought to have been under his signature, will
not make those documents 'forged' or 'false
documents'. The facts disclosed by the complainant do
not fit in those three categories noted in Md.
Ibrahim's case (supra). Accused persons have submitted
covering letter at the time of submission of those
research papers / progress reports. Facts have been
disclosed therein. As per the accused persons, the
progress reports of accused No. 1 were not submitted
(Judgment) (13) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
by the complainant and therefore, they were
submitted, after the 'guide' was changed. Non-
mentioning of date on the papers does not make it
'false document'. Again there was no mens rea behind
the act of not putting date on those papers.
14. Another fact is also required to be considered
here. If we peruse the complaint, then it can reveal
that it is very much cryptic. It does not disclose
ingredients of any of the offences. It appears that
the complainant has withhold the facts with some
intention. Learned Magistrate ought to have considered
all these aspects.
15. The act of issuance of process requires due
application of judicious mind. The impugned order does
not reflect that the learned Magistrate had applied
mind before passing such order, much less judicious
mind. In fact, the report u/s. 202 of Code of Criminal
Procedure produced by Police was against the
complainant. It has been submitted in the report that
the change of guide was as per University rules.
Learned Magistrate has only mentioned that she has
perused the report; however, it can be seen that the
order does not say as to why inspite of adverse
report, she has concluded that there is prima facie
case. No doubt, inspite of adverse report, learned
Magistrate had power to take cognizance of the
offence; but for that purpose there should be material
(Judgment) (14) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
before the learned Magistrate. Learned Magistrate
while passing order of taking cognizance after inquiry
u/s. 202 of Code of Criminal Procedure, should
consider the grounds of negative report and
thereafter, if any, offence is made out, should
proceed to take cognizance. Clear reasons ought to
have been assigned for that purpose.
16. In Md. Ibrahim (supra) it has been observed by
Apex Court that, "This Court has time and again drawn
attention to the growing tendency of complainants
attempting to give the cloak of a criminal offence to
matters which are essentially and purely civil in
nature, obviously either to apply pressure on the
accused, or out of enmity towards the accused, or to
subject the accused to harassment. Criminal courts
should ensure that proceedings before it are not used
for settling scores or to pressurize parties to settle
civil disputes".
17. Further Learned Counsel for Petitioners has
relied on the decision in Pepsi Foods Ltd. And another
v/s. Special Judicial Magistrate and others [(1998) 5
SCC 749] wherein it has been observed that, "Summoning
of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring
only two witnesses to support his allegations in the
complaint to have the criminal law set into motion.
(Judgment) (15) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
The order of the magistrate summoning the accused must
reflect that he has applied his mind to the facts of
the case and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and documentary
in support thereof and would that be sufficient for
the complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. Magistrate
has to carefully scrutinize the evidence brought on
record and may even himself put questions to the
complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima
facie committed by all or any of the accused". Learned
Magistrate in the present case also ought to have
considered that because of taking cognizance on the
basis of such complaint, the accused persons would be
required to undergo the ordeal of facing the trial,
unnecessarily. The possibility of filing of complaint
out of rivalry and / or to take revenge ought to have
been ruled out before taking cognizance.
18. In Pepsi Foods Ltd. [(1998) 5 SCC 749]
(supra); it has been held that, "It is settled that
High Court can exercise its power of judicial review
in criminal matters. In State of Haryana and others
v/s. Bhajan Lal and others 1992 Supp (1) SCC 335, this
court examined the extraordinary power under Art. 226
(Judgment) (16) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
of the Constitution and also the inherent powers under
Section 482 of the Code which it said could be
exercised by the High Court either to prevent abuse of
the process of any court or otherwise to secure the
ends of justice. While laying down certain guidelines
where the court will exercise jurisdiction under these
provisions, it was also stated that these guidelines
could not be inflexible or laying rigid formulae to be
followed by the facts and circumstances of each case
but with the sole purpose to prevent abuse of the
process of any court or otherwise to secure the ends
of justice. One of such guideline is 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. Under Art. 227 the power of
superintendence by the High Court is not only of
administrative nature but is also of judicial nature.
This article confers vast powers on the High Court to
prevent the abuse of the process of law by the
inferior courts and to see that the stream of
administration of justice remains clean and pure. The
powers conferred on the High Court under Articles 226
and 227 of the constitution and under Sec. 482 of the
Code have no limits but more the power more due care
and caution is to be exercised invoking these powers.
When the exercise of powers could be under Art. 227 or
Sec. 482 of the Code it may not always be necessary to
invoke the provisions of Art. 226. Some of the
(Judgment) (17) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
decisions of this Court laying down principles for the
exercise of powers by the High Court under Articles
226 and 227 may be referred to". The ratio is
applicable here. Learned Magistrate has not passed a
judicial order while taking cognizance of the matter.
The said order of taking cognizance of the offences
passed against both the accused is without application
of mind. If the powers of this Court are not exercised
and complaint is not quashed, then the accused persons
would be required to face the trial unnecessarily. It
has been further observed in the above-said case that,
" No doubt the magistrate can discharge the accused at
any stage of the trial if he considers the charge to
be groundless, but that does not mean that the accused
cannot approach the High Court under Sec. 482 of the
Code or Art. 227 of the Constitution to have the
proceeding quashed against him when the complaint does
not make out any case against him and still he must
undergo the agony of a criminal trial". Therefore,
this is a fit case, where the complaint should be
quashed and order of issuance of process deserves to
be set aside.
19. For the above-said reasons, I proceed to pass
following order.
ORDER
(a) Both the applications are hereby allowed.
(b) Complaint in RCC No. 1640 of 2015 pending before
(Judgment) (18) Cri. Appln. No. 01414 of 2017
With Cri. Appln. No. 01738 of 2017
Judicial Magistrate First Class, Aurangabad as well as
order of issuance of process passed therein on 31-01-
2017 for the offence punishable u/s. 420, 465, 468,
471 read with Section 34 of Indian Penal Code against
both the accused / present applicants are hereby
quashed and set aside.
(c) Rule made absolute in the above terms.
( Smt. Vibha Kankanwadi )
JUDGE
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puranik / CRIAPPLN1414.17etc
