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Supreme Court of India

Mariam Fasihuddin vs State By Adugodi Police Station on 22 January, 2024

Author: Surya Kant

Bench: Dipankar Datta, Surya Kant

2024 INSC 49 REPORTABLE

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
Signature Not Verified

with FIR No. 141/2010 under Sections 420, 468, 471 read with
Digitally signed by
satish kumar yadav
Date: 2024.01.22
16:57:51 IST
Reason:

Section 34 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’)

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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

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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 brother­in­

law, 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

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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

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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

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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

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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

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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

1 (2021) 5 SCC 435, para 23.

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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, 120­

B, 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

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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

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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 well­

defined 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
2 P. Ramanatha Aiyar, Advanced Law Lexicon, 6th Edition, Vol. 1, pg. 903.

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‘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

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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

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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

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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

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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
3 Sushil Suri v. Central Bureau of Investigation, (2011) 5 SCC 708, para 26.

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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

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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 re­

evaluating 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
4 Vinay Tyagi v. Irshad Ali and others, (2013) 5 SCC 762, para 22.

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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

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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

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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

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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

22 | P a g e
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

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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

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.

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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

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