Recently the Hon’ble Supreme Court in Mariam Fasihuddin and another Versus State by Adugodi Police Station and another¹ held that while prosecuting a person for the offence of cheating punishable under Section 420 of the Indian Penal Code, 1860, it is to be seen whether the deceitful act of cheating was coupled with an inducement leading to the parting of any property by the complainant.

The Hon’ble Apex Court while reversing the findings of the Hon’ble High Court and the Learned Trial Court observed that to constitute an offence of cheating, merely committing a deceitful act is not sufficient unless the deceitful act dishonestly induced a person to deliver any property or any part of a valuable security, thereby resulting in loss or damage to the person.

Facts of the case:

The Appellant No.1, the wife and Respondent No.2, the husband got married in Bengaluru in the year 2007. The Respondent No.2, at the time of their marriage was engaged in a software business located in the United Kingdom. During this period, the Respondent No.2 had assured the Appellant No.1 that post marriage they would reside together in London. Initially, the Respondent No.2 refused to take the Appellant No.1 with him but after considerable persuasion, she managed to accompany Respondent No.2 to London. However soon after, the Respondent No.2 allegedly abandoned the Appellant No.1 and forcefully confined her to the residence of her sister-in-law. At the same time, the Respondent No.2 returned to India.
• The Appellant No.2 who is the father of the Appellant No.1 had to intervene in the aforesaid circumstances and facilitate the latter’s return to India. Subsequently, the Appellant No.1 gave birth to a male child in the year 2008. In 2009, the Appellant No.1 sought to obtain a passport for the minor child based allegedly upon the Respondent No.2’s instructions. Respondent No.2 also assured that he had arranged their stay in the United Kingdom. Thereafter, the minor child’s passport was issued and the Respondent No.2 obtained a sponsorship letter from his brother-in-law which was duly forwarded to the United Kingdom High Commission. The sponsorship letter stated that Dr. M.K.Shariff, the brother-in-law of Respondent No.2 would accommodate the Appellant No.1 and the minor child during their visit to the United Kingdom and specifically mentioned the minor child’s passport number.
• The Appellants allege that the duration of marriage with the Respondent No.2 was fraught with physical and mental torture solely on account of Respondent No.2’s relentless financial demands. It is alleged that during his visit to India, the Respondent No.2 subjected the Appellant to coercion and torture. These acts of intimidation prompted the Appellant No.1 to file a complaint against the Respondent No.2 and his family members before the Basavangudi Women Police Station, Bengaluru under Sections 346, 498A and 506, read with Section 34 of the Indian Penal Code, 1860. Additionally, the complaint alleged that the Respondent No.2 on the pretext of arranging for their travel to the United Nation, took away the minor child’s passport and jewellery items belonging to the Appellant No.1.
• Having learnt that the Appellant No.2 had filed a complaint, the Respondent No.2 also lodged a complaint of his own 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 the Respondent No.2 was in the United Kingdom. This complaint was registered as FIR No. 141 of 2010 under Section 420, 468 and 471 read with Section 34 of the Indian Penal Code, 1860 hereinafter referred to as ‘the FIR’.
• Following the investigation conducted in the 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 the forged documents. The offences were under Sections 468 and 471 of the Indian Penal Code, 1860. Consequently, a case numbered C.C.No.23545 of 2011 commenced before the Learned Trial Court only for the offences punishable under Section 420 read with Section 34 of the Indian Penal Code, 1860.
• The Appellants first sought quashing of the aforementioned chargesheet by invoking the powers of the Hon’ble High Court under Section 482 of the Code of Criminal Procedure, 1973² but their petition was dismissed with liberty granted to the Appellants to approach the Learned Trial Court and seek their discharge.
• Consequently, the Appellants moved an application under Section 239 of the Code of Criminal Procedure, 1973 seeking discharge in C.C.No. 23545 of 2011. In the meantime, the Respondent No.2 also invoked Section 173 (8) of the Code of Criminal Procedure, 1973 and sought further investigation of the offences under Section 468 and 471 of the Indian Penal Code, 1860 in the FIR.
• The Learned Magistrate on 24.06.2015, vide separate orders, allowed the Respondent No.2’s prayers for further investigation and directed him to furnish necessary evidence before the investigating officer, if so required. On the other hand, the Learned Magistrate dismissed the Appellant’s discharge application on the ground that the question as to whether an offence under Section 420 of the Indian Penal Code, 1860 was made out or not would be decided during the course of the trial. Pursuant to the said orders, the investigating agency filed a supplementary chargesheet against the Appellants, adding the offences under Section 468, 471, 420, 120-B and 201 read with Section 34 of the Indian Penal Code, 1860 and Section 12(b) of the Passports Act, 1967. The supplementary chargesheet also referred to a report provided by the State Forensic Laboratory, Madiwala, Bengaluru (hereinafter referred to as SFL). The supplementary chargesheet also mentioned a report purportedly obtained by the Respondent No.2 from a private agency namely “Truth Lab”. The said report opined that the signatures on the passport application did not signify a close resemblance with the specimens of the Respondent No.2’s signatures.
• The Appellants preferred to challenge the Learned Trial Court’s order vide Criminal Revision Petition before the Hon’ble High Court. However, the Hon’ble High Court dismissed the same primarily on the ground that there were specific allegations against the Appellants which required a full-fledged trial.

Issue raised before the Hon’ble Apex Court
The main question before the Hon’ble Bench was 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 were raised for further consideration:

1. Whether the actions of the Appellants prima facie constitute the offence of cheating under Section 420 Indian Penal Code?
2. Whether there has been a prima facie case made out for forgery under Sections 468 and 471 Indian Penal Code?
3. Whether there has been a violation of Section 12(b) of the Passports Act, 1967?

Observations made by the Hon’ble Apex Court

In the context of Section 420 of the Indian Penal Code, 1860:
The Hon’ble Apex Court before addressing the issue at hand, discussed the contours of the offence of ‘cheating’. The Court observed that in order to attract the provision of Section 420 of the Indian Penal Code, 1860, it is the prosecution who has to prove not only the act of cheating but it also needs to prove that the act of cheating resulted into an inducement to deliver the property resulting in a loss or destruction of property to the person who have been induced to deliver such property. The Hon’ble Apex Court observed that there are three components that constitute the offence of Section 420 i.e. 1) the deception of any person, 2) fraudulently or dishonestly inducing that person to deliver any property to any person, and 3) mens rea or dishonest intention of the accused at the time of making the inducement.

The Hon’ble Apex court in the present case observed that the Appellant No.1 seems to have breached the notion of mutual marital trust and unauthorizedly projected the Respondent No.2’s consent in obtaining the passport for their minor child. The Hon’ble Bench further noted that the grant of passport to the minor child did not confer any benefit upon the Appellant No.1 nor did it result in any loss or damage to the Respondent No.2. Similarly, the Appellant No.2, being the father of the Appellant No.1 who assisted in securing the passport for the child, derived no direct or indirect benefit from this action.

Therefore, the Hon’ble Apex Court observed that the act of the Appellant No.1 to forge the sign of the Respondent No.2 to seek the passport for her minor child to travel abroad does not amount to cheating punishable under Section 420 of the Indian Penal Code, 1860 due to the absence of a deceitful act that resulted in a loss or damage of the property to a husband.

In the Context of Forgery under Sections 468 and 471 of the Indian Penal Code, 1860:
The Hon’ble Apex court noted that the act of the Appellants also does not amount to forgery as the offence of forgery requires the preparation of a false document with the dishonest intention of causing damage or injury.

The Hon’ble Apex court observed that there are two primary components that need to be fulfilled in order to establish the offence of forgery namely: 1) that the accused has fabricated an instrument; and 2) it was done with the intention that the forged document would be used for the purpose to cheating. The Hon’ble Apex Court, thus concluded that the offence of forgery requires the preparation of a false document with the dishonest intention of causing damage or injury.

The Hon’ble Supreme Court observed that “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 intention can be made out against the Appellants.”

In the Context of Section 12 (b) of the Passports Act, 1967:

“12. Offences and penalties. -
Whoever-

(b)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;”

The Hon’ble Apex Court observed that from the language of the provision it must be established 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, the State FSL report explicitly stated that the alleged forgery of Respondent No.2’s signatures on the passport application were inconclusive. Moreover, the cognizance of such like offence can be taken only at the instance of the Prescribed Authority and no complaint has been disclosed against the Appellants.

Points overlooked by the Lower Courts:
The Hon’ble Apex court observed that the Learned Trial Magistrate prior to entertaining the application filed by Respondent No.2 for further investigation, should have applied his mind and posed certain queries in order to find out as to:

1. Why does the Respondent No.2 want to deprive his minor child of a passport?
2. Is it the case that he did not want his minor child to join his company in London?
3. How has Respondent No.2 secured the maintenance, education and future prospects of the minor child?
4. Does the minor child have a civil right to hold a passport even if one of his parents does not accord consent?
5. Can the minor child be granted a passport with the consent of one parent under whose case and custody he is?
6. What is the tangible loss, injury or damage suffered by Respondent No.2 due to procurement of a passport by his minor son?

With regards to the State FSL report filed by the Respondent No.2, the Hon’ble Apex Court opined that a report obtained from a private laboratory seemed to be a frail, unreliable, unsafe, untrustworthy and imprudent form of evidence unless it is supported by some other corroborative proof. The Hon’ble Apex Court also observed that the Respondent No.2 has not produced any other substantive proof nor has the investigating agency obtained any such material in compliance with the Learned Trial Court’s order for further investigation. Further the Apex Court observed that the Learned Trial Court and the Hon’ble High Court failed to appreciate that the genesis of the present controversy lied in a matrimonial dispute. The Hon’ble Bench noted that the Learned Trial Court 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, the Learned Trial Court should have exercised prudence, making at least a cursory effort to discern the actual ‘victim’ or ‘victimiser’.

Conclusion
The Hon’ble Apex court observed that the due to the evident discord between the Appellants and the Respondent No.2 which resulted in numerous complaints and legal proceedings, the same has adversely impacted the rights and interests of the minor child. The Hon’ble Apex Court further opined that the right to travel abroad is a fundamental right of an individual, albeit not absolute, and subject to established legal procedures.

The Hon’ble Apex court while considering the facts of the present case, allowed the appeal and rightly set aside the judgments passed by the Learned Trial Court and the Hon’ble High Court. The Hon’ble Apex Court was pleased to quash the FIR registered at the Adugodi Police Station lodged by the Respondent No.2 against the Appellants and all the proceedings arising therefrom and also directed the Respondent No.2 to pay the Appellant No.1 a cost of Rs. 1,00,000/-.

By - Soumya Kamat