Judgment:
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. Misc. No.M-25627 of 2009 Date of decision: July 18, 2014 Nidhi Kakkar .. Petitioner Vs. Swaran Kakkar .. Respondent Coram: Hon'ble Mr. Justice Surinder Gupta Present: Ms. Nidhi Kakkar, Petitioner in person. Mr. Ranjan Lakhanpal, Advocate. Mr. Kanwaljit Singh, Sr. Advocate with Mr. Neeraj Chaudhary, Advocate for the respondent. Surinder Gupta, J The petitioner in this petition under Section 482 Cr.P.C. seeks quashing of the complaint bearing No.37/1/07 filed by the respondent wherein the trial court vide order dated 2.7.2009 (Annexure P-16) has ordered her summoning to face trial for offence punishable under Sections 420/467/468 IPC and Section 12 Passport Act. The case of complainant/respondent in brief is that the petitioner got married with her son on 23.4.2000. However, both developed strained relations resulting into litigations and filing of divorce petition. The allegations against the petitioner in this complaint is that she had misrepresented Canadian Embassy by making false and forged entries in her pass book to get Canadian citizenship. As per the respondent, petitioner had gone to Canada after marriage on two occasions i.e. 24.5.2001 and 29.4.2003. The respondent came to know about acquiring Canadian citizenship by the petitioner on 6.8.2002. Thereafter the petitioner abandoned her Indian passport bearing No.P-552387. As per allegations in the complaint (Annexure P-5), the pre-requisite for grant of Canadian citizenship is compulsory stay of over three years in Canada after grant of immigration. The petitioner was granted immigration in the year 1996 but thereafter she continuously remained in India for a period of about four Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -2- years and visited Canada for the first time on 24.5.2001. In order to show her stay in Canada for a period of more than three years, the petitioner forged endorsement of her departure from India and stay in Canada in her passport she was holding on 24.5.2001. These endorsements were made with the help of rubber stamp which she had got prepared in clandestine manner. This fact was in specific knowledge of husband of the petitioner. The passport having forged entry issued by Government of India is in possession of the petitioner. The petitioner also concealed her marital status while making application for grant of citizenship. The respondent has levelled the allegations that the petitioner with her parents is engaged in the racket of forging entries in the passport and other documents and this has spoiled the life of large number of persons desirous of settling abroad. The matter was reported to the police time and again but no action was taken compelling the respondent to file the complaint in Court. I have heard learned counsel for the petitioner, learned counsel for the respondent and perused the paper book with their assistance. Admittedly, the petitioner got married with son of respondent on 23.4.2000 and is now living separate since 29.4.2003. The husband of the petitioner filed a divorce petition (Annexure P/3) dated 16.5.2003. Reply filed in that divorce petition is Annexure P/4. The petitioner got recorded the FIR No.215 dated 17.8.2005 for offence punishable under Sections 406/498-A IPC against her husband, respondent and other relatives of her husband, in which they have been charge sheeted vide order dated 1.2.2008 (Annexure P/2). An FIR No.59 dated 16.4.2010 was got registered against the petitioner by Gulshan Raj Kakkar for offence under Sections 323/452/34 IPC in which petitioner is facing trial. Before proceeding further, it will be relevant to take note of the fact that the entire claim of the petitioner is based on the allegations that three years compulsory stay is required in Canada to obtain Canadian citizenship, but on file no document has been produced by the respondent in support of his contention. Even in the complaint Annexure P/5, no such rule has been quoted and absolutely no evidence has been produced to show as to under what circumstances Canadian citizenship was allowed to the petitioner. In the absence of any evidence on file, no presumption can be Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -3- drawn that the petitioner got the Canadian citizenship on a particular term as alleged in complaint. The complaints made by the respondent to the police from time to time did not succeed in getting a case registered against petitioner. Initially on enquiry, Superintendent of Police, Jalandhar was of the opinion that after registering the case it is required to conduct enquiry to ascertain the truthfulness of the facts alleged by the complainant. The matter was sent to the Senior Superintendent of Police, Nawan Sahar where the petitioner has been residing to make further enquiry and take appropriate action. Canadian Embassy at New Delhi and Chandigarh were also intimated and copy of the report was sent to it. Report of Superintendent of Police (D), Nawan Sahar The Superintendent of Police (D), Nawan Sahar, in his report Annexure P/7, after enquiring into the matter observed as follows o:- “For the investigation of complaint the rival party Nidhi Kakkar wife of Manish Kakkar dauaghter of Davinder Kumar Malhotra, residents of Grain Market, Nawan Shahar was included in the inquiry and the rival party alleged in the complaint for going abroad by preparing forged documents or sending other persons to abroad by preparing forged documents, was investigated. The passport of Smt. Nidhi Kakkar was checked. The number of the pass-port is ML69784which has been issued by Canada valid up to 6.8.2007. On the pages of which there are entries by the concerned Embassy for going and coming. From the inquiry conducted by me, it has been found that the allegations described in the complaint by Smt.Nidhi Kakkar for going abroad by preparing forged documents and sending other persons to abroad by her parental family by preparing forged documents, have not been proved. Smt. Nidhi Kakkar has already got a case registered at Police Station Nawan Shahar. This complaint has been given due to enmity and to harass Smt. Nidhi Kakkar and her parents family in which there is no truth. It is recommended to file the complaint.”
. Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -4- The Senior Superintendent of Police, Nawan Sahar vide his letter dated 6.10.2005 (Annexure P/8) intimated the Addl. Director General of Police, Law and Order, Punjab, Chandigarh about the falsity of the complaint against the petitioner. Report of Superintendent of Police (HQ), Nawan Sahar The matter was again enquired by the Superintendent of Police (HQ), Nawan Sahar, but he also found that the respondent was lodging the complaint against the petitioner as a counter blast to the FIR got registered by her against the respondent and her other relatives. The Senior Superintendent of Police, Nawan Sahar, vide his letter dated 22.9.2006 intimated the Deputy Inspector General of Police Jalandhar, regarding the matter in the enquiry as follows :- “...... During investigation no fact regarding preparing forged documents or sending persons abroad on that basis has come on record. During investigation the Inquiry Officer checked the passport of Nidhi Kakkar and the concerned documents, but no offence was proved against her. However, in this regard the Embassy of Canada is being intimated. On receipt of their report the necessary action will be taken. Therefore, no legal proceedings are required with regard to this complaint. It is recommended to file the complaint.”
. The matter was again looked into and the Senior Superintendent of Police, Nawan Sahar and vide his letter dated 21.2.2007, he submitted the report as follows :- “The allegations imposed by the complainant against Nidhi Kakkar is of preparing forged passport. In this regard Nidhi Kakkar was asked to show her passport. Nidhi Kakkar refused to show her passport. As per law the police cannot force any person to give the proof against the allegations imposed against him. In this regards in order to collect solid proof the Canadian Embassy was also written letter vide this office letter No.13473/SB dated 23.10.2006 and the Canadian High Commission has also informed vide their letter dated 30.10.2006 that as per Canada Privacy Act no information Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -5- could be supplied without the consent of Nidhi Kakkar. Besides this the second allegation which the complainant Swarn Kakkar has levelled against the family of her daughter in law Nidhi Kakkar, is of sending a large number of persons abroad by preparing forged documents. In this regards the complainant could not tell the name of any person or could submit any documentary evidence on the basis of which any solid action could be taken. From the whole investigation, it is revealed that due to personal enmity of both the parties, their matrimonial differences, this false complaint has been filed. The complainant party has no solid proof on the basis of which any criminal action could be taken against Nidhi Kakkar and her family.”
. From the above facts, it is evident that after failing in her attempt to involve the petitioner in the criminal case on her complaint to police, the complainant resorted the filing of criminal complaint in the Court of Judicial Magistrate Ist Class, Jalandhar with similar allegations. Here, an improvement was made by examining two witnesses namely Vinod Kumar and Rajinder Kumar who stated that they have met the petitioner to go abroad. Vinod Kumar has stated that the petitioner demanded `5 lacs for settling him abroad and have also shown him various immigration stamps on two passports. But when he had gone to make payment of `5 lacs she was not available at the given address. Rajinder Kumar (CW2) has also stated about the similar deal with the petitioner for going and settling in Canada. He has stated about the initial payment of `50,000/- but when he went to contact her at the given address she was not available as by then she had left her matrimonial home. In these proceedings this Court has not to go into the facts and comment upon the statements of the witnesses but at the same time the relevance of the statement of the witnesses can be looked into. The statement of Vinod Kumar and Rajinder Kumar was recorded in the year 2008. They allegedly entered into a deal with the petitioner in 2003 but never reported the matter thereafter and remained silent for a period of five Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -6- years. They were never cited as witness before the police or produced before the police in various complaints made by the complainant. Swaran Kakkar and her son Manish Kakkar appeared as CW-3 and CW-4 and made statement supporting the averments made in the complaint. The scope of interference by the High Court under Section 482 Cr.P.C. has been discussed by the Hon'ble Supreme Court in the case of State of Haryana and others vs. Ch. Bhajan Lal and others 1992 Supp. (1) Supreme Court Cases 335 which reads as follows :-
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. 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.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -7- same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.”
. Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -8- Keeping the principles as laid down above, it is to be seen that even if the entire evidence produced by the respondent before the trial court be taken as correct, it does not make out a prima facie case to summon the petitioner to face trial for offence punishable under Sections 420/467/468 IPC and 12 of Passport Act. The respondent has never been cheated by the petitioner. CW-1 Vinod Kumar was not cheated by the petitioner. CW-2 Rajinder Kumar has stated that he had paid `50,000/- to the petitioner but he has never lodged any complaint and remained silent for five years. In the facts and circumstances discussed above, both CW-1 Vinod Kumar and CW-2 Rajinder Kumar appeared to be procured witnesses. There was no evidence before the trial court to make out a case of forgery for the purpose of cheating particularly in a passport issued by the Government of India. In the absence of any document produced on file, a person cannot be summoned only on presumption. In this case, the police has intimated the allegations against the petitioner to Canadian Embassy at New Delhi and Chandigarh and there is nothing that Canadian Embassy has found any lapse on the part of the petitioner while submitting documents for getting Canadian citizenship and initiated any action against her. In the event of any fraud having been played by the petitioner with the Canadian Government, the action must have been initiated against her on receipt of complaint and police report. It is quite unfortunate that the matrimonial discord in between the petitioner and her husband and the family members of her husband has resulted in various litigation including lodging of criminal cases against the petitioner, respondent and other family members of the respondent. The complaint filed by respondent was also activated by the above malice. Still keeping all the above facts aside, criminal proceedings against a person including the petitioner could be initiated only when there is some evidence making out a prima facie case. In the present case the trial court after discussing the allegations levelled in the complaint has proceeded to summon the petitioner with the presumption that in the absence of any document or evidence of forgery, the petitioner may have committed the same. While proceeding to initiate criminal proceedings against any person the court has to be very cautious and required to Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document Crl. Misc. No.M-25627 of 2009 -9- scrutinized the evidence to make out a prima facie case before summoning that person. As a sequel of my discussion above, I am of the considered opinion that the complaint filed by the respondent (Annexure P-5) and the order of summoning (Annexure P-16) have resulted in mis-use of the process of the court. This petition has merits and is accepted. The complaint Annexure P-5 and summoning order Annexure P-16 along with all the consequential proceedings arising therefrom are hereby quashed. July 18, 2014 (Surinder Gupta) deepak Judge Kumar Deepak 2014.07.30 18:04 I attest to the accuracy and integrity of this document