Gauhati High Court
Crl.Pet./303/2016 on 4 February, 2025
GAHC010110792016
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.Pet./303/2016
1. Mrs. Afroza Rahman
W/O Lt. Adilur Rahman @ Mamu
2. Ms. Azana Rahman
D/O Lt. Adilur Rahman @ Mamu
R/O S.S. Road Lakhtokia Guwahati in the
District of Kamrup M Assam
....Petitioners
-Versus-
1. Dr. Nilufar Rahman
D/O Lt. Abidur Rahman
R/O 22, Urban City Mall, G.S. Road,
Christianbasti, Guwahati-5,
in the District of Kamrup M, Assam,
also at Patel Ramaiah Layout, Menur Baglur Main
Road, Byrathin Cross, Kothanur,
Bangalore- 566007.
2. The State of Assam
.....Respondents
Crl.Pet.303/2016 Page 1
For Petitioner(s) : Mr. A. M. Bora, Sr. Advocate
Mr. A Baruah, Advocate
For Respondent(s) : Mr. N Das, Advocate
Mr. R. J. Baruah, Advocate
Date of Judgment : 04.02.2025
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(Mridul Kumar Kalita, J.)
1. Heard Mr. A. M. Bora, learned senior counsel, assisted by
Mr. A. Baruah, learned counsel appearing for the petitioners. Also
heard Mr. N. Das, learned counsel appearing for respondent No. 1,
as well as Mr. R. J. Baruah, learned Additional Public Prosecutor
appearing for the State of Assam.
2. This criminal petition has been filed, under Section 482 of the Code
of Criminal Procedure, 1973 by the petitioners, namely Mrs. Afroza
Rahman and Ms. Azana Rahman, praying for quashing of the
Complaint Case No. 2040C/2015, pending before the Court of
learned Special Judicial Magistrate, Kamrup (Metro).
3. The facts relevant for consideration of the instant criminal petition,
in brief, are as follows.
a. The Petitioner No. 1 is the wife and the Petitioner No. 2 is the
daughter of late Adilur Rahman, who was the Managing
Director of M/s Rahman Properties Limited, which was
incorporated under the Companies Act, 1956 having its
Crl.Pet.303/2016 Page 2
registered office at ―Hotel Dynasty‖, S.S. Road, Lakhtokia,
Guwahati. Apart from late Adilur Rahman, there were three
other directors of the aforesaid company including the
Petitioner No. 1. The Respondent No. 1, who is the sister of
late Adilur Rahman, claims that she was holding 2,26,500
numbers of shares in the said company. On 13.11.2012, said
Adilur Rahman was killed by extremists, while he was on duty
in a Tea Garden area.
b. On 01.09.2015, the respondent No. 1, Dr. Nilufar Rahman,
filed a complaint case against both the above-mentioned
petitioners before the Court of the learned Chief Judicial
Magistrate, Kamrup (Metro), under Sections 420, 467, 468,
and 471 of the Indian Penal Code alleging, inter-alia, the
illegal transfer of 2,18,100 shares belonging to respondent
No. 1 to petitioner No. 1, Mrs. Afroza Rahman, as well as the
illegal transfer of 8,400 shares to petitioner No. 2, Azana
Rahman, by resorting to forgery. She also alleged that she
had left some blank signed papers with her late brother,
Adilur Rahman, and that by falsifying her signatures, the
petitioners had unauthorizedly transferred her shares to their
names."
c. The aforesaid complaint was registered as Complaint Case No.
2040C/2015 and the same was transferred for disposal to the
Court of learned Special Judicial Magistrate, Kamrup (Metro)
Crl.Pet.303/2016 Page 3
Guwahati. After examining the complainant under Section
200 of the Code of Criminal Procedure, 1973, as well as the
witnesses for the complainant under Section 202 of the said
code, the Court of the learned Special Judicial Magistrate,
First Class, Metro, Guwahati, by order dated 14.10.2015,
found a prima facie case against the petitioners, Afroza
Rahman and Azana Rahman, under Sections 420, 468, and
471 of the Indian Penal Code. The court took cognizance of
the said offences and issued summons to the above-named
petitioners.
4. Mr. A. M. Bora, learned senior counsel for the petitioners has
submitted that there is nothing in the complaint petition to show
that the petitioners have forged any specific document or as to
how they had cheated the respondent No.1/complainant. He
submits that mere mentioning of the penal provisions in the
complaint is not sufficient to take cognizance of the offences
mentioned therein, unless there are materials on record from which
the Court can come to a prima facie conclusion regarding the
commission of the alleged offence. He submits that in the instant
case, no such material was produced before the learned
Magistrate.
5. The learned senior counsel for the petitioners submits that the
materials before the Learned Special Judicial Magistrate, clearly
suggested that it was the late Adilur Rahman to whom the
Crl.Pet.303/2016 Page 4
respondent No.1/complainant had given blank signed papers. It is
also submitted by the learned senior counsel for the petitioners
that as the husband of petitioner No.1, late Adilur Rahman, was in
charge of all the affairs of the company, the process of transfer of
shares was initiated by him before his death. In support of his
submission, he has referred to share transfer form annexed with
the instant criminal petition from which he intends to show that the
transfer of shares was done on 5.01.2012, i.e., before the death of
Adilur Rahman.
6. The learned senior counsel for the petitioners has submitted that
even during the inquiry conducted under Section 202 of the Code
of Criminal Procedure, 1973, the PW-2 Mrs. Rumena Rahman, who
is the mother of the Respondent No. 1, has stated that the shares
were transferred by his son Adilur Rahman during his lifetime,
which clearly exonerates the present petitioners from the
accusation made against them in the complaint petition.
7. The learned senior counsel for the petitioners has also submitted
that in the complaint case, the M/s. Rahman Properties Limited,
i.e., the company itself, has not been made party and no specific
role has been attributed to the present petitioners in the complaint
filed by Respondent No.1.
8. It is submitted by the learned senior counsel for the petitioners
that while issuing summons against the present petitioners, the
learned Magistrate did not apply his judicial mind to the averments
Crl.Pet.303/2016 Page 5
made in the complaint petition as well as the testimony of
witnesses recorded under Section 200 and 202 of the Code of the
Criminal Procedure, 1973. He has also submitted that even taking
the materials on its face value, the ingredients necessary to
constitute offence under Section 420/468/471 of the Indian Penal
Code are not present against the present petitioners. Hence, he
submits that learned Magistrate could not have taken cognizance
of the offences alleged in the complaint and issued summons
against the present petitioners.
9. The learned senior counsel for the petitioners has submitted that in
respect of the same subject matter, the Respondent No. 1 has filed
a title suit against the present petitioners and in that suit, no
whisper has been made regarding the allegation of forgery. Hence,
it is submitted that the instant complaint has been filed against the
petitioners only with a view to harass them.
10. The learned senior counsel for the petitioners submitted that, in
the present case, the complainant has merely alleged that the
petitioners, by falsifying documents, transferred the shares of
Respondent No. 1 to themselves. However, no specific document
has been identified as forged. He submits that making such vague
allegations, without any supporting material or even a reference to
the allegedly forged documents, indicates that the complaint has
been filed against the petitioners solely to harass them.
Crl.Pet.303/2016 Page 6
11. The learned senior counsel for the petitioners has cited following
judgements in support of his submissions:-
a. Sharad Kumar Sangh Vs. Sangita Rane reported in
(2015) 12 SCC 781.
b. M/s Pepsi Foods Ltd. and Another
Vs. Special Judicial Magistrate and Others reported in
(1998) 5 SCC 749.
c. Sushil Sethi and another Vs. State of Arunachal
Pradesh & others reported in (2020) 3 SCC 240.
d. Neelu Chopra and Another Vs. Bharti reported in (2009)
10 SCC 184.
12. On the other hand, Mr. N. Das, learned counsel for the respondent
No. 1 has submitted that the learned Special Judicial Magistrate
has rightly taken cognizance of offence under Section 420/468/471
of the Indian Penal Code on the basis of materials available before
him at the time of issuance of processes against the present
petitioners.
13. The learned counsel for Respondent No. 1 submitted that the said
respondent was holding 2,26,500 equity shares in M/s. Rahman
Properties Limited. However, out of these shares, 2,18,100 were
transferred to Petitioner No. 1 and 8,400 to Petitioner No. 2
without her consent and without her executing any legal document
for the said transfer. He further submitted that, although the
Crl.Pet.303/2016 Page 7
learned counsel for the petitioners contended that the shares in
question were transferred to the petitioners on 05.01.2012, a
perusal of the annual return for 2013-2014, filed before the
Ministry of Corporate Affairs as part of statutory filings, shows that
the transfer was recorded on 07.12.2012--approximately 24 days
after the demise of Adilur Rahman on 13.11.2012. The learned
counsel for Respondent No. 1 also pointed out that the dates of
share transfer, as reflected in the annual statutory return, are
recorded as 13.11.2012, which contradicts the date mentioned in
the share transfer certificates relied upon by the petitioners in their
quashing petition, i.e., 05.01.2012. He submits that, if the date
stated in the annual statutory return is taken into consideration, it
would indicate that the transfer occurred about 24 days after the
demise of Adilur Rahman, implying that the unauthorized transfer
was not carried out by Adilur Rahman but by the petitioners
themselves.
14. The learned counsel for the respondent No. 1 has also submitted
that before filing the complaint against the petitioners, the
respondent No.1 had made various communications with them as
they were related to the respondent No. 1, however, when such
communications and correspondence did not yield any results, she
was compelled to file the complaint case against the petitioners. It
is also submitted that the fact of unauthorized transfer of shares by
the petitioners came to known by the respondent No.1 only in the
Crl.Pet.303/2016 Page 8
month of December 2014 when the petitioners, as legal heirs of
Adilur Rahman, filed a succession case bearing No. 136/13 before
Additional District Judge No.2, Kamrup (Metro) with regard to the
shares held by respondent No. 1 and hence, there was a delay in
filing the connected complaint.
15. The learned counsel for the respondent No.1 has relied on the
judgment of Apex Court in the case of Mrs. Anita Malhotra Vs.
Apparel Export Promotion Councils and Another [Criminal
Appeal No. 2033 of 2011 (arising out of S.L.P. (Cri.) No. 85 of
2011)], wherein it was observed that a certified copy of annual
return filed under Section 159 of the Companies Act is a public
document which can be taken notice of by a Court while arriving at
a judicial decision.
16. I have considered the submissions made by the learned counsel for
both the sides and have gone through the materials available on
record. I have also gone through the rulings cited by learned
counsel for the rival parties in support of their submissions.
17. On perusal of the averments made in the complaint by the
Respondent No. 1, it appears that her contention is that she had
left some signed blank papers with her brother late Adilur Rahman
and in the year 2014, she came to know that her shares in the
M/s Rahman Properties Limited were illegally transferred in the
name of the petitioners without her knowledge and consent. She
also had written letters to the petitioners asking them to re-
Crl.Pet.303/2016 Page 9
transfer the shares to her name again. However, the petitioners
had replied that the said shares were transferred by her during the
lifetime of late Adilur Rahman and due consideration for the same
were paid to the Respondent No. 1 by the late Adilur Rahman.
18. On perusal of the materials on record, there appears to be a
dispute between the Respondent No. 1 and the present petitioners
regarding transfer of shares, however, the allegation, in the
complaint, regarding commission of the offence of forgery and
cheating by the petitioners, is vague and general in nature without
any specific role attributed to them as to how they have committed
the alleged offence.
19. By merely stating that the accused persons are guilty of illegally
transferring shares by forging the complainant's signatures--
without specifying in which document the forgery occurred--it
suggests that the Court did not have any specific document before
it that was alleged to be forged. Instead, cognizance of the offence
of forgery was taken merely based on the averments made by
Respondent No. 2 in her complaint. Moreover, the complainant's
witness, Mrs. Rumena Rahman, in her deposition, clearly accused
the late Adilur Rahman of having transferred the shares of
Respondent No. 1 to the petitioners.
20. In this regard, the observations made by the Apex Court
in the case of M/s Pepsi Foods Limited and
Crl.Pet.303/2016 Page 10
Another Vs. Special Judicial Magistrate and Others
(Supra) are relevant and are quoted herein below:
"28. 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. 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. The Magistrate has to carefully
scrutinise the evidence brought on record and
may even himself put questions to the
complainant and his witnesses to elicit answers
Crl.Pet.303/2016 Page 11
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.‖
21. In the instant case, it appears that while issuing summonses to the
present petitioners, the only materials before the learned Special
Judicial Magistrate were the averments made in the complaint as
well as the statement of the complainant recorded under Section
200 as well as that of the witnesses recorded under Section 202 of
the Code of Criminal Procedure, 1973 respectively. From those
materials, it appears that no specific act, constituting the offence,
has been attributed against the present petitioners. Only vague
allegations are made against both the petitioners in her complaint.
22. Though, there appears to be a dispute of civil nature between the
parties regarding the matter of transfer of shares of the
respondent No.1 in the name of the present petitioners, however,
in absence of any prima facie case being made out for prosecuting
the present petitioners for the offence alleged against them in the
complaint, the continuation of the criminal proceeding would
amount to only harassment of the petitioners.
23. Moreover, although the learned counsel for Respondent No. 1 has
attempted to introduce certain documents, such as statutory
returns related to the shares of M/s. Rahman Properties Limited--
purportedly showing that the shares of Respondent No. 1 were
Crl.Pet.303/2016 Page 12
transferred to the petitioners after the death of Adilur Rahman--
these documents were never produced before the Learned Special
Judicial Magistrate at any point. Furthermore, even if it is assumed
that these documents were presented before the Learned Special
Judicial Magistrate, the averments made in the complaint, as well
as the statements of witnesses on record, only indicate the
involvement of the late Adilur Rahman in the alleged transfer of
shares. There is nothing to establish which specific documents
were forged by the present petitioners.
24. Apart from mere mentioning that the petitioners are guilty of illegal
transfer by falsifying the signatures of the Respondent No.1, no
materials have been brought to the notice of learned Special
Judicial Magistrate to show as to what role was played by the each
of the petitioner in the offense alleged against them.
25. In this regard, the observation made by the Apex Court in the case
of Neelu Chopra and Another Vs. Bharti (Supra) are relevant
and the same is reproduced herein below:
9. In order to lodge a proper complaint, mere
mention of the sections and the language of
those sections is not the be all and end all of the
matter. What is required to be brought to the
notice of the court is the particulars of the
offence committed by each and every accused
Crl.Pet.303/2016 Page 13
and the role played by each and every accused in
committing of that offence.
10. When we see the complaint, the complaint
is sadly vague. It does not show as to which
accused has committed what offence and what is
the exact role played by these appellants in the
commission of offence. There could be said
something against Rajesh, as the allegations are
made against him more precisely but he is no
more and has already expired. Under such
circumstances, it would be an abuse of the
process of law to allow the prosecution to
continue against the aged parents of Rajesh, the
present appellants herein, on the basis of a vague
and general complaint which is silent about the
precise acts of the appellants.
26. In the instant case also, this Court is of considered opinion that the
allegation made against the present petitioners in the complaint
filed by the Respondent No.1 regarding their role in the alleged
offences is vague. The witnesses for the complainant/Respondent
No.1 who gave their statement before the Learned Special Judicial
Magistrate only implicated late Adilur Rahman for alleged transfer
and from their testimony nothing specific could be found against
Crl.Pet.303/2016 Page 14
the present petitioners regarding their involvement in the offences
alleged in the complaint.
27. Under the abovementioned circumstances, this Court is of
considered opinion that it would be an abuse of the process of law
to allow the prosecution to continue against the present
petitioners, who are the widow and the daughter of late Adilur
Rahman respectively.
28. For the reasons aforesaid, this Court is of the considered opinion
that the continuation of the Complaint Case No. 2040C/2015 would
be an abuse of the process of law. Hence, the said criminal
proceedings against the petitioners is hereby quashed.
29. With about observations, the instant criminal petition is hereby
disposed of.
JUDGE
Comparing Assistant
Crl.Pet.303/2016 Page 15
