Mr. Vinay S/O. Krishnarao Tule vs Ravindra S/O. Dnyaneshwar Patil ...
2021 Latest Caselaw 11846 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH, NAGPUR.


            CRIMINAL APPLICATION (APL) NO. 201 OF 2017


 APPLICANT :-                      Mr. Vinay S/o Krishnarao Tule, Age 54
                                   Years, Occupation - Medical Practitioner,
                                   R/o. Laxmi Nagar, Nagpur.

                                      ...VERSUS...

 NON-APPLICANTS:- 1. Ravindra S/o Dnyaneshwar Patil, Age 45
                     Years, Occupation - Service,

                                2. Sangita W/o Ravindra Patil, Age 41
                                   Years, Occupation - Household, R/o. Plot
                                   No.84, New Lok Kalyan, Narendra Nagar,
                                   Nagpur.

                                3. The Health            Officer / Appropriate
                                   Authority,             Nagpur     Municipal
                                   Corporation,              Nagpur.

 -------------------------------------------------------------------------------------------
                 Mr. Rajnish Vyas, counsel for the applicant.
          Mr. Y. B. Mandpe, counsel for respondent Nos.1 and 2.
               Mr. S.M.Puranik, counsel for respondent No.3.
 -------------------------------------------------------------------------------------------


                                   CORAM : MANISH PITALE, J.

 DATE OF RESERVING THE JUDGMENT:                                13.08.2021.
 DATE OF PRONOUNCING THE JUDGMENT: 26.08.2021.



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 JUDGMENT

The applicant has approached this Court invoking

inherent powers under section 482 of the Code of Criminal

Procedure (hereinafter referred to as "Cr. P. C.") for quashing of a

criminal complaint filed by respondent Nos.1 and 2. The applicant

contends that the complaint filed by the said respondents under

section 200 of the Cr.P.C. does not make out ingredients of alleged

offences under section 415, 417, 420, 427, 467, 468 and 471 read

with section 34 of the Indian Penal Code (hereinafter referred to

as "IPC"). The said respondents have also arrayed respondent

No.3 as accused No.2 in the said criminal complaint.

2. Respondent Nos.1 and 2 have been raising their

grievances in various proceedings prior to filing of the aforesaid

complaint before the Court of Judicial Magistrate First Class,

Court No.2, Nagpur (hereinafter referred to as "Magistrate"). The

record shows that the basic grievance of respondent Nos.1 and 2 is

that the applicant had given a report, pursuant to collection of

samples of fetus from the womb of respondent No.2 and certified

that the fetus was not likely to suffer from the disease of sickle cell

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anemia. According to respondent Nos.1 and 2, the report was

inaccurate, fabricated, concocted and it led to respondent No.2

continuing with the pregnancy, resulting in birth of child on

20/01/2010, who was later found to be suffering from sickle cell

anemia. It is alleged that since both the said respondents are

carriers of sickle cell anemia disorder, they had consulted a

gynecologist so as to avoid their child suffering from the said

disease. The gynecologist had referred the said respondents to the

laboratory run by the applicant herein. On 15/07/2009,

respondent Nos.1 and 2 had approached the applicant and given

sample for testing. The report carried the date of 13/07/2009 and

certified that the fetus was not likely to suffer from the said

disease, leading to grave harassment and suffering to respondent

Nos.1 and. 2.

3. Respondent Nos.1 and 2 filed Writ Petition No.112 of

2013, before this Court claiming the following reliefs.

"i) issue writ of mandamus or any other form of writ or any other direction to the respondent declaring that:-

ii) the certificate issued by respondent no.2 to

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unqualified Doctors for running a laboratory be declared as null and void.

iii) direct respondent no.2 to verify if there are other Doctors who does not possess requisite qualification and are running the laboratories, and initiate action against the officers involved in granting registration certificate as annexed in Annexure-17 and 18.

iv) direct the respondent nos.3, 4 and 5 to register an FIR and investigate the matter on the report lodged by petitioner on 23-10-2012.

v) transfer the investigation to Central Bureau of Investigation by registering the FIR.

vi) compensate the petitioner from Doctors who have issued invalid and bogus certificate to the tune of Rs.1 Crore as per Annexure-10.

vii) any other order this Hon'ble court deems fit and proper under the circumstances of the case may kindly be passed in the interest of justice."

The Division Bench of this Court passed judgment and

order dated 18/06/2013, dismissing the writ petition, holding that

none of the reliefs could be granted. But, in paragraph-28 of the

said judgment, the Division Bench of this Court observed that the

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said respondents could very well file a complaint under section

200 of the Cr.P.C.

4. The said respondents approached the Hon'ble

Supreme Court by filing special leave petition against the said

judgment. On 24/02/2014, the Hon'ble Supreme Court dismissed

the special leave petition. Thereafter, respondent Nos.1 and 2

filed a complaint under the Consumer Protection Act, 1986, before

the State Consumer Disputes Redressal Commission, Maharashtra,

Nagpur Circuit Bench, Nagpur, on the same allegations, claiming

compensation to the tune of Rs.1,04,05,000/- from the applicant.

5. By a detailed order dated 03/05/2017, the State

Commission dismissed the complaint, holding that respondent

Nos.1 and 2 had failed to make out any case of negligence or

fabrication of report by the applicant. Aggrieved by the same, the

said respondents filed first appeal before the National Consumer

Dispute Redressal Commission, New Delhi. The said appeal was

dismissed by order dated 17/07/2017. The National Consumer

Disputes Redressal Commission concurred with the findings

rendered by the State Consumer Disputes Redressal Commission.

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6. In the meanwhile, respondent Nos.1 and 2 filed the

aforesaid criminal complaint against the applicant, alleging that

the applicant had not only cheated them, but he had indulged in

forgery and fabrication of documents, for which he was criminally

liable. Respondent Nos.1 and 2 alleged that the applicant did not

hold the necessary qualifications to run the diagnostic laboratory

and respondent No.3 had also falsely issued authorization and

licence to the applicant to run the diagnostic laboratory.

7. On 09/03/2017, the Court of Magistrate by a cryptic

order issued process against the applicant, observing that the

allegations in the complaint prima facie disclosed offences

punishable under sections 417, 420, 468, 471 of the IPC. At this

stage, the applicant filed the instant application under section 482

of the Cr.P.C. On 23/03/2017, this Court issued notice and granted

interim stay of the proceedings in the aforesaid Criminal

Complaint No.3124 of 2014, pending before the Court of

Magistrate. Thereafter, on 27/07/2017, the application was

admitted and interim stay was continued. The application was

listed for final hearing before this Court.

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8. Mr. Rajnish Vyas, learned counsel appearing for the

applicant, submitted that in the present case, the complaint filed

by respondent Nos.1 and 2 deserved to be quashed for the reason

that even if the contents of the complaint and the documents filed

therewith were to be taken into consideration, not even a prima

facie case was made out against the applicant. It was submitted

that the ingredients of the offences alleged against the applicant

were not made out at all and that therefore, the complaint

deserved to be quashed. The learned counsel for the applicant

referred to the judgment of the Division Bench of this Court,

whereby the writ petition filed by respondent Nos.1 and 2 was

dismissed, as also the orders passed by the State and National

Consumer Commissions, whereby allegations of negligence,

absence of qualifications of the applicant to run the diagnostic

laboratory and tampering of the record, as also forged and

fabricated reports, were rejected. It was submitted that the

contents of the said criminal complaint were nothing but a

repetition of the allegations made before the Division Bench of

this Court and although liberty was granted to respondent Nos.1

and 2, when the writ petition was dismissed, considering the

contents of the criminal complaint under section 200 of the Cr.P.C.,

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they were not sufficient for the matter to proceed against the

applicant.

9. The learned counsel for the applicant submitted that

merely because remedy of filing revision application against the

order of issuance of process was available, it could not be said that

inherent powers of this Court could not be invoked under section

482 of the Cr.P.C. seeking quashing of the complaint. The learned

counsel for the applicant submitted that although respondent

Nos.1 and 2 had suffered as the child was found to be having the

disease of sickle cell anemia, perusal of the report given by the

laboratory of the applicant would show that possibility of errors

was clearly stated in the report and that in the present case, it

could not be said that the applicant was criminally liable for what

eventually happened. On this basis, it was submitted that the

applicant did not deserve to face further proceedings in the

criminal complaint case and that the present application deserved

be allowed.

10. On the other hand, Mr. Y. B. Mandpe, learned counsel

appearing for respondent Nos.1 and 2, referred to the contents of

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the criminal complaint in detail to demonstrate that the

ingredients of the alleged offences were clearly made out and that

further proceedings in the criminal complaint were warranted in

the interest of justice. Much emphasis was placed on the liberty

granted by the Division Bench of this Court in the aforesaid

judgment while dismissing the writ petition of respondent Nos.1

and 2, to file criminal complaint under section 200 of the Cr.P.C.. It

was submitted that, not only have the respondent Nos.1 and 2

alleged that the report given by the applicant in connection with

the sample of the fetus was fabricated, inasmuch as the report was

dated 13/07/2009, when the sample itself was given on

15/07/2009, but various versions of the very same report filed

before this Court along with reply to the writ petition

demonstrated that the applicant had repeatedly indulged in

forgery and fabrication. On this basis, it was submitted that the

said criminal complaint did not deserve to be quashed and that

further proceedings were warranted in the interest of justice. It

was submitted that, but for the said report given by the laboratory

of the applicant, the said respondents would not have continued

with the pregnancy and the child suffering from the disease of

sickle cell anemia would not have been born. It was submitted

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that respondent Nos.1 and 2 had been cheated by the applicant,

for which he deserved to face trial. It was also alleged that

respondent No.3 had falsely issued authorization and licence to

the applicant to run the diagnostic laboratory when he did not

possess the necessary qualifications. The learned counsel for the

said respondents emphasized on the provisions of the Pre-

Conception and Pre-Natal Diagnostic Techniques (Prohibition of

Sex Selection) Act, 1994 (hereinafter referred to as "PCPNDT

Act") to contend that in the present case sufficient material was on

record to proceed against the applicant.

11. Heard learned counsel for the rival parties and

perused the material on record. In order to examine whether the

criminal complaint in the present case makes out even prima facie

ingredients of the offences alleged, it would be necessary to

peruse the said complaint in detail. Perusal of the same, shows

that at the outset, the said respondents have alleged that while the

sample in the present case was given on 15/07/2009, the report

showed the date of 13/07/2009, indicating that the report was

fabricated and false. It was not clear whether the sample taken

from respondent No.2 was the one actually tested or whether the

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report pertained to some other patient. Much emphasis has been

placed on the observation in the report given by the applicant that

fetus was not likely to suffer from the said disease.

12. Thereafter, respondent Nos.1 and 2 have alleged in

the complaint that the said report was obviously wrong since the

child actually suffered from the disease of sickle cell anemia. On

this basis, it was alleged that the applicant cheated the said

respondents. The complaint then narrates the nature of mental

harassment suffered by respondent Nos.1 and 2 and the physical

agony being suffered by the child born with the said disease, on

the basis of which compensation to the tune of Rs.1,00,00,000/-

(Rs.One Crore Only) has been claimed. The said respondents

further state in the complaint that the applicant is not qualified to

run the diagnostic laboratory and in support of the said statement,

reliance is placed on the Indian Medical Council Act, 1956 and the

Rules framed thereunder, read with the provisions of the PCPNDT

Act. It is emphatically stated that the applicant was not qualified

to run the said laboratory and equally, the respondent No.3

(accused No.2) was liable for having falsely issued registration

certificate/licence to the applicant to run the diagnostic laboratory.

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13. Thereafter, reference is made to the said writ petition

filed by respondent Nos.1 and 2, which was dismissed, but much

emphasis is placed on the liberty granted by the Division Bench of

this Court to file criminal complaint under section 200 of the

Cr.P.C.. The said respondents then rely upon documents filed

along with the reply on behalf of the applicant in the said writ

petition, to contend that further forgery and fabrication was

indulged in by the applicant. After referring to the proceedings

initiated under the Consumer Protection Act, 1986, respondent

Nos.1 and 2 have repeated the charge of cheating against the

applicant by referring to various provisions of the IPC and the

PCPNDT Act. On this basis, respondent Nos.1 and 2 sought

issuance of process against the applicant pertaining to various

provisions of the IPC and PCPNDT Act.

14. An analysis of the said complaint filed on behalf of

respondent Nos.1 and 2 would show that criminal offences have

been alleged against the applicant under various heads. Firstly,

absence of qualifications of the applicant to run the diagnostic

laboratory, indicating that he cheated the said respondents and the

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general public. Secondly, the allegation that the report given by

the applicant in July, 2009, was a false and fabricated document,

inasmuch as the sample was given on 15/07/2009, while the

report was dated 13/07/2009, indicating that it was a report not

pertaining to respondent No.2. Thirdly, that the report stated that

the fetus was not likely to suffer from the aforesaid disease, while

it was later found that the fetus was suffering from such a disease,

because the child born in January, 2010, was indeed found to be

suffering from the said disease. Fourthly, that the diagnostic

laboratory of the applicant was being run on the basis of a false

certificate issued by respondent No.3 i.e. Appropriate Authority of

the Nagpur Municipal Corporation and fifthly, the applicant had

indulged in tampering of the record before this Court by filing

further fabricated copies of the said report of July, 2009, along

with the reply to the writ petition.

15. On the first head of allegation levelled by respondent

Nos.1 and 2, pertaining to qualifications of the applicant for

running the said diagnostic laboratory, it is significant that

identical arguments were raised before the Division Bench of this

Court in Criminal Writ Petition No.112 of 2013. This is evident

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from the contentions recorded on behalf of the applicant in

paragraph-4 of the judgment and order dated 18/06/2013, passed

by the Division Bench of this Court in the said writ petition. A

perusal of the said judgment would show that such contentions

were considered in detail by the Division Bench of this Court in

the backdrop of the provisions of the PCPNDT Act. In paragraphs

14, 15 and 16 of the said judgment of the Division Bench of this

Court, it was categorically found that the applicant was having the

requisite qualifications for running the diagnostic laboratory and

that he satisfied the requirements of the PCPNDT Act and the

Rules framed thereunder. The said findings of the Division Bench

of this Court were confirmed when the special leave petition filed

by respondent Nos.1 and 2 was dismissed by the Hon'ble Supreme

Court on 24/04/2014. Thus, positive findings in favour of the

applicant are on record, which have not been disturbed, thereby

indicating that respondent Nos.1 and 2 cannot claim that they

were cheated because the applicant in the present case did not

possess the requisite qualifications to run the diagnostic laboratory

and that he had cheated them by posing to be a person qualified

to run the laboratory in which the test was carried out. It is

significant that the respondent nos. 1 and 2 have themselves

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referred to the filing of the said writ petition and the judgement of

the Division Bench of this Court holding in favour of the applicant.

Thus, the ingredients of the offence of cheating cannot be said to

be made out under the first head of allegations.

16. The second head of the allegations pertains to the

alleged tampering of the said report issued in July, 2009, by the

diagnostic laboratory run by the applicant for the reason that

while the sample was given on 15/07/2009, the report was dated

13/07/2009. The record shows that an identical allegation was

raised by respondent Nos.1 and 2 before the State Consumer

Commission and the National Consumer Commission in the

proceedings initiated under the Consumer Protection Act, 1986.

Concurrent findings of the said Commissions show that difference

in the date was found to be a typographical error and nothing

more. Although, the findings were rendered in the proceedings

initiated under the Consumer Protection Act, it can be said to be

relevant for dealing with the contention of respondent Nos.1 and

2 that there was deliberate tampering of the report, which

demonstrated that not only were respondent Nos.1 and 2 cheated,

but the applicant had indulged in forgery and fabrication. The

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applicant has not denied the difference in the dates, but the

applicant stands by the said report, as the report pertaining to the

sample collected from respondent No.2 and there does not appear

to be sufficient material in this allegation to show the ingredients

of offences under section 420, 468 and 471 of the IPC. Therefore,

it cannot be said that the applicant deserves to face trial on the

basis of the said allegation.

17. Insofar as the third head of the allegations is

concerned, respondent Nos.1 and 2 claim that they were cheated

because the report stated that the fetus was not likely to suffer

from the disease and yet the child born in January, 2010 was

found to be suffering from the disease of sickle cell anemia. It is

significant that the report given by the applicant not only gave the

opinion about the "likelihood" of the fetus to suffer from the said

disease, but also stated as follows:

"Although all precautions are taken during DNA tests the currently available data indicate that the technical error rate for all types of DNA analysis is approximately 1%. It is important that all clinicians of persons requesting DNA diagnostic test are aware of these data before acting upon these results."

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This shows that the report itself stated about the

possibility of technical error in such DNA analysis test. Apart from

this, respondent Nos.1 and 2 would have to show on a bare

reading of the complaint that the opinion given by the applicant

could be said to be showing the ingredients of the offence of

cheating as defined in section 415 of the IPC. The element of

deception, fraud and dishonesty for inducing respondent Nos.1

and 2 is a vital ingredient, which should be prima facie found

against the applicant on the basis of the nature of allegations

made by respondent Nos.1 and 2. This Court is of the opinion that

the allegations made in the complaint do not prima facie show

the ingredients of the said offence on the basis of the said set of

allegations made by respondent Nos.1 and 2.

18. Insofar as the fourth head of allegation is concerned,

respondent Nos.1 and 2 appear to be indicating that the licence

issued to the applicant by respondent No.3 (accused No.2) was

itself false and therefore, the applicant as well as respondent No.3

were criminally liable. Such an allegation without any particulars

is vague. Respondent No.3 (accused No.2) is only shown to be

Health Officer/Appropriate Authority of the Nagpur Municipal

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Corporation, which itself is vague. Even otherwise, in the said

judgment and order dated 18/06/2013, the Division Bench of this

Court has given categorical findings about the qualifications of the

applicant to run the diagnostic laboratory and a reference is also

made to the registration certificate/licence issued to the applicant

on the basis of such qualifications under PCPNDT Act. With these

findings holding the field and reference of the said Division Bench

judgement of this Court made in the complaint itself, conceding

that the said findings attained finality after dismissal of the special

leave petition, there is hardly any substance in the said allegation

to even prima facie show criminal liability on the part of the

applicant and respondent No.3.

19. Insofar as the fifth head of the allegations is

concerned, it pertains to alleged tampering of record in the said

writ petition decided by the Division of this Court. It is alleged

that different versions of the very same certificate issued in July,

2009, were placed on record with the reply filed by the applicant

to the said writ petition. These allegations are also akin to the

allegations made by the said respondents on the basis of the date

mentioned in the report issued by the laboratory of the applicant.

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The allegation is not that the contents of the report were in any

manner different from the report given to the said respondents.

Therefore, it cannot be said that the said allegation prima facie

makes out the ingredients of the said offences.

20. Thus, it becomes evident that although an

unfortunate incident has occurred in the present case, it needs to

be examined whether the complaint filed by respondent Nos.1 and

2 before the Magistrate makes out even a prima facie case and

whether it demonstrates the ingredients of the offences alleged

against the applicant. The said aspect has to be examined in the

backdrop of the aforementioned proceedings initiated by

respondent Nos.1 and 2 for the very same grievances in the form

of writ petition before this Court and the consumer complaint

under the provisions of the Consumer Protection Act, 1986.

Although, the Division Bench of this Court did grant liberty to

respondent Nos.1 and 2 to file a complaint under section 200 of

the Cr.P.C., that in itself would not show that the complaint would

have to proceed against the applicant. The continuance of a

criminal proceeding is a serious matter and a person cannot be

forced to face such criminal proceeding, when the complaint in its

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entirety does not sufficiently indicate that prima facie ingredients

of the alleged offences are made out.

21. This Court has considered the entire material on

record and it is found that the said complaint filed by respondent

Nos.1 and 2, does not sufficiently make out a case for the matter

to proceed further against the applicant. Although, process was

issued by the Magistrate by a cryptic order on 09/03/2017, for the

offences punishable under sections 417, 420, 468 and 471 of the

IPC and a remedy of filing of a revision application was indeed

available to the applicant, this Court is of the opinion that when

the complaint itself is found to be insufficient for the criminal

proceeding to be initiated and continued against the applicant, in

the peculiar facts and circumstances of the present case, inherent

powers under section 482 of the Cr.P.C. can be invoked for

considering the reliefs sought by the applicant.

22. In view of the above discussion, this Court is of the

opinion that the applicant has succeeded in making out a case for

invoking inherent powers of this Court under section 482 of the

Cr.P.C. for securing the ends of justice.

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23. Accordingly, the application is allowed and the

Criminal Complaint No.3124 of 2014, initiated by respondent

Nos.1 and 2 and pending before the Court of Magistrate is

quashed. Consequently, the order issuing process is rendered

meaningless.

JUDGE

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