Madhya Pradesh High Court
Gauri Rahul Thakalkar W/O Rahul … vs Rahul Dilip Takalkar on 5 May, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 5TH OF MAY, 2025
MISC. CRIMINAL CASE No. 19202 OF 2024
GAURI RAHUL TAKALKAR & OTHERS
Versus
RAHUL DILIP TAKALKAR
Appearance:
Shri R.S. Raghuvanshi advocate for the petitioners.
Shri Shashi Dhar Mishra, advocate for the respondent.
--------------------------------------------------------------------------------------------
ORDER
This petition under Section 482 of the Code of Criminal Procedure,
1973 is filed for quashing the impugned private complaint dated
31.08.2021 filed by respondent Rahul, Dilip Takalkar against the
petitioners and the summoning order dated 20.10.222 passed in RCT No.
26517/2021 (RCT No. 10458/2022) by the Court of learned Judicial
Magistrate First Class, Indore whereby cognizance for offence punishable
under Section 420 & 406 of IPC was taken against the petitioner No. 1
(accused no. 1 – Gauri Rahul Takalkar) and the cognizance of offence
punishable under Section 420 of IPC was taken against the petitioners no.
2 and 3(accused no. 2 – Anil Deshmukh & accused no. 6- Vipul Kumar
Jamnadas Garsadiya).
2 The exposition of facts in brief, giving rise to present petition, is as
under:-
2
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
The respondent/complainant Rahul Dilip Takalkar had filed written
private complaint before the Court of Judicial Magistrate First Class
Indore. The complaint in brief states as under:
A The complainant Rahul was married to respondent/Gauri on
23.06.2004 at Indore as per Hindu religious, rights and ceremonies.
They were blessed with a daughter Aavya presently aged around 16
years. Respondent/Gauri completed post graduate diploma in
Psychological Counseling. M.Sc. In Counseling and Psychotherapy
Advance Diploma in Foreign Language, Doctorate in Physiotherapy
after her marriage. She also participated in various prestigious
cultural events.
B After 7-8 years of marriage, respondent Gauri started quarrel
with the complainant and his family members over trivial issues. She
started to misbehave with the complainant and his family members
and abused them. Respondent Gauri surreptitiously to the jewelry
and cash from the house and handed over to respondent no. 4 and 5.
She used to insult mother of the complainant and physically
assaulted her minor daughter.
C Accused Gauri pressurized the complainant to purchase a flat
at Vadodara reluctantly the complainant agreed to purchase the flat.
The complainant made payment to consideration of flat 102 Tower A
Akshar Amrit Vadodara and an agreement was entered into between
complainant and respondent No. 6 which was registered at the office
of Sub Registrar Vadodara on 10.07.2013. The flat was under
construction. The complainant had paid Rs. 5 Lacs in furtherance of
the agreement. Later, respondent No. 2 keeping the complainant and
3NEUTRAL CITATION NO. 2025:MPHC-IND:11835
his family members in dark, transferred the said flat in name of
respondent no. 1.
D Respondent/Gauri packed her bag and collected her personal
belonging and left the house of complainant on 28 th September 2017.
She also took gold bracelet and diamond Mangal Sutra belonging to
mother of complainant. When mother of complainant attempted to
enquire, she abused her and attempted to assault her with the knife.
Respondent Gauri pushed mother of complainant against wall and
threatened to kill her. She also slapped minor child. Thereafter left
the house of complainant with stolen jwellery item.
E When the complainant checked the contents of joint locker
held in name of respondent Gauri with mother of complainant on
3.7.2018, the locker was found empty. The bank informed that
respondent Gauri had operated the locker on 26 occasions since
15.1.2014 and remove documents and ornaments belonging to
family of the complainants. It also came to the knowledge that
respondent No. 1 Gauri on instructions of respondents no. 2 to 5 had
liquidated fixed deposit maintained with Bank of India and UCO
Bank belonging to the family of complainant and siphoned Rs. 21
lacs.
F The complainant approached Woman Police Station Indore
and filed a written complaint on 30th January 2018 and attempted
settlement and requested respondent Gauri to return her matrimonial
home. In response, respondent Gauri gave him a legal notice
containing baseless allegations.
G When complainant contacted respondent No. 6 it was revealed
4
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
that respondent No. 6 has unilaterally executed a deed of
cancellation in respect of agreement to sale of flat and next day
executed a sale deed of same flat in favour of respondent Gauri.
H Respondent Gauri filed a false and frivolous complaint under
the provisions of Protection of Women from Domestic Violence Act
before Judicial Magistrate First Class, Vadodara which was
registered as Domestic Case No. 2614/2018 against the complainant.
Thereafter she had filed petition for decree of divorce before Family
Court Vadodara which is registered as Family Suit No. 1044/2018.
She had also filed application under section 125 of the Code of
Criminal Procedure. The respondent was awarded maintenance in
sum of Rs. 300 per month in Criminal MA No. 1466/2018.
I Respondent Gauri filed a criminal complaint at Police Station
Laxmipura Vadodara in April, 2020 after lapse of three years of
leaving her matrimonial home. Police issued notice to the
complainant and his parents during peak of corona pandemic and
insisted them to appear before Police Station Laxmipura Vadodara.
Police Station Laxmipura registered FIR bearing registration No.
1196037200737 of 2020 for offence punishable under Sections 11,
199, 323, 406, 409, 504, 498A and 506 of IPC and Sections 3 and 7
of Dowry Prohibition Act on 27.08.2020. The complainant and his
mother moved petition for quashing the false and motivated FIR
before the Hon’ble High Court of Gujarat. The High Court was
pleased to pass order dated 25.06.2021 staying filing of charge sheet
in the matter. The police officers of P.S.- Laxmipura, Vadodara
harassed the complainant and his father, when they were suffering
from covid-19 and admitted in the Choithram Hospital, Indore. They
5
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
also visited home of complainant on 23.9.2020 and asked mother of
complainant to hand over the articles claimed by respondent Gauri.
They threatened and dragged mother of the complainant out of the
house.
3 The Judicial Magistrate First Class recorded the statement of
complainant under Section 200 of Cr.P.C.. Learned Judicial Magistrate
vide impugned order dated 20.10.2022 took cognizance of the offence
punishable under Section 406 and 420 of IPC against petitioner No. 1
Rahul and offence punishable under Section 420 of IPC against
respondent/accused Anil Deshmukh and respondent/accused Vipul
Jamunadas Ghersadiya.
4 Feeling aggrieved by the impugned complaint and the summoning
order dated 20.10.2022 present petition is filed for quashing the complaint
and impugned order on following grounds:
i) No offence is made out against the petitioners. The respondent
has misused the Criminal Procedure and criminal complaint in a
matrimonial dispute. Learned Judicial Magistrate had given a finding
that offence punishable under Section 406 of IPC is not made out
still has taken cognizance of offence punishable under section 406
of IPC. It goes to show that the court has not applied judicial mind
to the case in hand.
ii) The offence punishable under Section 406 and 420 of IPC
cannot go together. The offence punishable under section 420 and
406 of IPC are not made out against the petitioners.
iii) As per agreement to sale dated 10.07.2013 complete payment
was to be made within 12 months as the complainant failed to make
6
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
payment of consideration amount still the agreement was cancelled
vide registered cancellation deed dated 25.1.2016 and agreement
amount was returned to the complainant. Thereafter respondent
accused No. 2 paid entire consideration of Rs. 8 lacs through cheque
of State Bank of India and completed sale transaction. Therefore,
registered sale deed was executed in name of his daughter on
24.2.2016. The complainant instead of resorting to civil remedies of
specific performance of contract, refund of part payment filed
criminal complaint to harass the petitioners. The complaint is
delayed and filed as counter blast to the proceedings undertaken by
respondent Gauri against the complainant.
5 On these grounds, it is prayed that the criminal complaint dated
31.8.2021 and the summoning order dated 20.10.2022 and all
consequential proceedings arising therefrom pending before the Court of
Judicial Magistrate First Class, Indore be quashed.
6 Learned counsel for the petitioners, in addition to the grounds
mentioned in the petition, contends that the impugned order taking
cognizance of offence punishable under Section 406 and 420 of IPC
against the petitioners is erroneous. No reasons were assigned for taking
cognizance of the alleged offence. The essential ingredients to constitute
the offence punishable under Sections 406 and 420 of IPC are missing. The
petitioners were well aware of the transaction with regard to the purchase
of plots since 2017, but no complaint was made. The transaction with
regard to the purchase of flat is invariably civil in nature. The complainant
could have filed the suit for cancellation of agreement and recovery of
earnest money or specific performance of contract. The complaint is
counter blast to the FIR, the divorce proceedings and the complaint under
7
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
the Domestic Violence Act prosecuted by Gauri against the complainant.
Therefore, the complaint suffers from malafide.
7 Per-contra, learned counsel for the respondent/complainant submits
that complainant had paid Rs. 5 Lacs in furtherance of the agreement to
sale dated 10.07.2013. Further, he has paid Rs. 12 Lacs to father of Gauri
for paying it to the builder, but the same was misappropriated. Later, a
unilateral deed of cancellation was executed on 25.02.2016 and on next
day, a sale deed of same flat was executed in name of accused Gauri. It
goes to show dishonest and fraudulent intention on the part of
respondent/accused. Learned counsel further contends that alternate
efficacious remedy of revision under Section 397 of Code of Criminal
Procedure was available to the petitioners therefore, petition under Section
482 of Code of Criminal Procedure is not sustainable. Learned counsel
also argued that respondents have suppressed material fact of transfer
petition. Therefore, this petition deserves to be dismissed for suppression
of material facts.
8 Heard both the parties. Perused the record.
9 Learned counsel for the respondent relying on the judgment of Apex
Court in case of Bhaskar Laxman Yadav Vs. Karamveer Kakasaheb
Wagh Education Society reported in 2013(11) SCC 531 contended that
the petitioner has suppressed the fact of rejection of her transfer petition by
the Apex Court. The petitioner has not come with clean hands. Therefore,
the rare relief of quashing of complaint should not be granted to the
petitioner. Learned counsel for the petitioner referring to para GG of the
petition submits that petitioner has specifically declared about filing and
dismissal of transfer petition before the Supreme Court. Consequently, the
contention with regard to maintainability of petition is meritless.
8
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
10 It is trite law that mere availability of an alternate remedy of revision
under Section 397 of Code of Criminal Procedure does not debar exercise
of inherent jurisdiction in case of apparent abuse of process of the Court.
The inherent powers of the High Court are not conferred by a statute but
they are merely saved thereunder. Therefore, the preliminary objection
about the maintainability of present petition filed under Section 482 of the
Code of Criminal Procedure is meritless. (Dhariwal Tobacco Products
Ltd. Vs. State of Maharashtra reported in (2009)2 SCC 370, Vijay Vs.
State of Maharashtra (2017) 13 SCC 317, Prabhu Chawla Vs. State of
Rajasthan reported in (2016) 16 SCC 30 are relied.)
11 In case of State of Haryana v. BhajanLal reported in 1992 Supp (1)
SCC 335, the Supreme Court laid down the principles for the exercise of
the jurisdiction by the High Court in exercise of its powers under Section
482 Cr.P.C to quash the proceedings, as under :
“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 extraordinary power under
Article 226 or the inherent powers under Section 482 Cr.P.C 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 FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) CrPC except under an
order of a Magistrate within the purview of Section 155(2) CrPC.
(3) Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR 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
9NEUTRAL CITATION NO. 2025:MPHC-IND:11835
Section 155(2) CrPC.
(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 Act concerned (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.”
12 The Supreme Court in the case of Rajiv Thapar v. Madan Lal
Kapoor, (2013) 3 SCC 330, laid down the steps to be followed for exercise
of jurisdiction under Section 482 of Cr.P.C, for quashing of proceedings as
under:-
”29. The issue being examined in the instant case is the jurisdiction of the High Court
under Section 482 CrPC, if it chooses to quash the initiation of the prosecution
against an accused at the stage of issuing process, or at the stage of committal, or
even at the stage of framing of charges. These are all stages before the
commencement of the actual trial. The same parameters would naturally be available
for later stages as well. The power vested in the High Court under Section 482 CrPC,
at the stages referred to hereinabove, would have far-reaching consequences
inasmuch as it would negate the prosecution’s/complainant’s case without allowing
the prosecution/complainant to lead evidence. Such a determination must always be
rendered with caution, care and circumspection. To invoke its inherent jurisdiction
under Section 482 CrPC the High Court has to be fully satisfied that the material
produced by the accused is such that would lead to the conclusion that his/their
defence is based on sound, reasonable, and indubitable facts; the material produced is
such as would rule out and displace the assertions contained in the charges levelled
against the accused; and the material produced is such as would clearly reject and
overrule the veracity of the allegations contained in the accusations levelled by the
prosecution/complainant. It should be sufficient to rule out, reject and discard the
accusations levelled by the prosecution/complainant, without the necessity of
recording any evidence. For this the material relied upon by the defence should not
have been refuted, or alternatively, cannot be justifiably refuted, being material of
sterling and impeccable quality. The material relied upon by the accused should be
such as would persuade a reasonable person to dismiss and condemn the actual basis
of the accusations as false. In such a situation, the judicial conscience of the High
Court would persuade it to exercise its power under Section 482 CrPC to quash such
criminal proceedings, for that would prevent abuse of process of the court, and
secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate
10NEUTRAL CITATION NO. 2025:MPHC-IND:11835
the following steps to determine the veracity of a prayer for quashment raised by an
accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound,
reasonable, and indubitable i.e. the material is of sterling and impeccable
quality?
30.2. Step two: whether the material relied upon by the accused would rule out
the assertions contained in the charges levelled against the accused i.e. the
material is sufficient to reject and overrule the factual assertions contained in the
complaint i.e. the material is such as would persuade a reasonable person to
dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been
refuted by the prosecution/complainant; and/or the material is such that it cannot
be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of
process of the court, and would not serve the ends of justice? 30.5. If the answer
to all the steps is in the affirmative, the judicial conscience of the High Court
should persuade it to quash such criminal proceedings in exercise of power
vested in it under Section 482 CrPC. Such exercise of power, besides doing
justice to the accused, would save precious court time, which would otherwise
be wasted in holding such a trial (as well as proceedings arising therefrom)
specially when it is clear that the same would not conclude in the conviction of
the accused.”
13 In case of Delhi Race Club (1940) Ltd. v. State of U.P., reported in
(2024) 10 SCC 690, it was laid down that-
36. What can be discerned from the above is that the offences of criminal breach of
trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients:
In order to constitute a criminal breach of trust (Section 406 IPC)
(1) There must be entrustment with person for property or dominion over the
property, and
(2) The person entrusted:
(a) Dishonestly misappropriated or converted property to his own use, or
(b) Dishonestly used or disposed of the property or wilfully suffers any other
person so to do in violation of:
(i) Any direction of law prescribing the method in which the trust is
discharged; or
(ii) Legal contract touching the discharge of trust (see : S.W.
Palanitkar v. State of Bihar, (2002) 1 SCC 241 ).
Similarly, in respect of an offence under Section 420IPC, the essential
ingredients are:
(1) Deception of any person, either by making a false or misleading representation
or by other action or by omission;
(2) Fraudulently or dishonestly inducing any person to deliver any property, or
(3) The consent that any person shall retain any property and finally intentionally
inducing that person to do or omit to do anything which he would not do or omit
(see : Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712 ).
37. Further, in both the aforesaid sections, mens rea i.e. intention to defraud or the
dishonest intention must be present, and in the case of cheating it must be there
11
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
from the very beginning or inception.
39. Every act of breach of trust may not result in a penal offence of criminal breach
of trust unless there is evidence of manipulating act of fraudulent misappropriation.
An act of breach of trust involves a civil wrong in respect of which the person may
seek his remedy for damages in civil courts but, any breach of trust with a mens
rea, gives rise to a criminal prosecution as well. It has been held in Hari Prasad
Chamaria v. Bishun Kumar Surekha, (1973) 2 SCC 823 as under :
“4. We have heard Mr Maheshwari on behalf of the appellant and are of the
opinion that no case has been made out against the respondents under
Section 420 of the Penal Code, 1860. For the purpose of the present appeal,
we would assume that the various allegations of fact which have been made
in the complaint by the appellant are correct. Even after making that
allowance, we find that the complaint does not disclose the commission of
any offence on the part of the respondents under Section 420 of the Penal
Code, 1860. There is nothing in the complaint to show that the respondent
had dishonest or fraudulent intention at the time the appellant parted with
Rs 35,000. There is also nothing to indicate that the respondents induced the
appellant to pay them Rs 35,000 by deceiving him. It is further not the case
of the appellant that a representation was made by the respondents to him at
or before the time he paid the money to them and that at the time the
representation was made, the respondents knew the same to be false. The
fact that the respondents subsequently did not abide by their commitment
that they would show the appellant to be the proprietor of Drang Transport
Corporation and would also render accounts to him in the month of
December might create civil liability for them, but this fact would not be
sufficient to fasten criminal liability on the respondents for the offence of
cheating.”
40. To put it in other words, the case of cheating and dishonest intention starts with
the very inception of the transaction. But in the case of criminal breach of trust, a
person who comes into possession of the movable property and receives it legally,
but illegally retains it or converts it to his own use against the terms of the contract,
then the question is, in a case like this, whether the retention is with dishonest
intention or not, whether the retention involves criminal breach of trust or only a
civil liability would depend upon the facts of each case.
41. The distinction between mere breach of contract and the offence of criminal
breach of trust and cheating is a fine one. In case of cheating, the intention of the
accused at the time of inducement should be looked into which may be judged by a
subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere
breach of contract cannot give rise to a criminal prosecution for cheating unless
fraudulent or dishonest intention is shown right from the beginning of the
transaction i.e. the time when the offence is said to have been committed.
Therefore, it is this intention, which is the gist of the offence.
42. Whereas, for the criminal breach of trust, the property must have been entrusted
to the accused or he must have dominion over it. The property in respect of which
the offence of breach of trust has been committed must be either the property of
some person other than the accused or the beneficial interest in or ownership of it
must be of some other person. The accused must hold that property on trust of such
other person. Although the offence i.e. the offence of breach of trust and cheating
involve dishonest intention, yet they are mutually exclusive and different in basic
12
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
concept.
43. There is a distinction between criminal breach of trust and cheating. For
cheating, criminal intention is necessary at the time of making a false or misleading
representation i.e. since inception. In criminal breach of trust, mere proof of
entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is
lawfully entrusted with the property, and he dishonestly misappropriated the same.
Whereas, in case of cheating, the offender fraudulently or dishonestly induces a
person by deceiving him to deliver any property. In such a situation, both the
offences cannot co-exist simultaneously.
14 The material on record is examined in the light of aforestated
proposition of law.
15 In the instant case, the material on record fails to satisfy the
ingredients of Section 405 IPC. The complaint did not state how and in
what manner, the money or the ornaments were entrusted to the accused.
Admitedly, the respondent Gauri and her mother-in-law were joint holder
of the locker. The mother of complainant was not examined under Section
202 of Cr.P.C. to substantiate the allegation and state the contents of locker.
There is no material to show as to what ornaments were kept in the locker
and which ornament or article belonged to whom. There was no express
entrustment in favour of respondent Gauri. No notice was given with
regard to return of any specific ornaments. The pre-summoning evidence is
lacking and suffers on these account. On these aspects, the summoning
order is equally quiet, albeit, it states that the grounds for proceeding
against the accused for the offences punishable under Sections 323, 336,
352, 378, 506 and 406 of IPC are not made out, still, proceeded to take
cognisance for offence punishable under Section 406 of IPC against
petitoner/ accused Gauri. Be that as it may, mere demand or claim would
not meet the conditions specified by Section 405IPC in the absence of
prima facie evidence to establish entrustment, dishonest misappropriation,
conversion, use or disposal, in violation of any direction of law or legal
contract touching the discharge of trust. In the absence of factual material
13
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
which satisfy the ingredients of the offence under Section 405 IPC, a mere
assertion of misappropriation does not attract criminal prosecution under
Section 406 IPC.
16 In the present case, the ingredients to constitute an offence
punishable under Section 420 read with Section 415 IPC are also absent.
The pre-summoning evidence does not disclose and establish the essential
ingredients of Section 415 IPC. There is no assertion, much less, legal
evidence to show that the accused had the fraudulent or dishonest intention
right from the beginning of the transaction regarding purchase of the flat. A
deed of cancellation submitted by the petitioner reflects that accused no. 6
has cancelled the agreement due to non-payment of consideration amount
within prescribed period. At the most, it is a case of breach of contract. The
breach of contract may give rise to civil dispute with regard to specific
performance of contract and cannot be allowed to be a subject-matter of
criminal offence of cheating. The material on record discloses the dispute
with regard to purchase of flat between the parties, which is essentially, of
civil nature. The respondent – Rahul has equally efficacious relief of
assailing the sale transaction and specific performance of agreement to sale
and return of advance money in the alternative. Therefore, the offence
punishable under Section 420 of IPC is prima facie not made out in view
of the law laid down in the casse of Paramjeet Batra Vs. State of
Uttarakhand (2013)11 SCC 673 and Naresh Kumar Vs. State of
Karnataka (2024) INSC 196.
17 Learned counsel for respondent contended that the trial court did not
commit any error in taking cognizance of the alleged offence against the
petitioners /accused. The High Court cannot substitute its view with that of
the Magistrate as laid down in case of Fiona Shrikhande Vs. State of
14
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
Maharashtra and another reported in (2013) 14 SCC 44. The paragraph
11 of the Judgment reads as under-
“11. We are, in this case, concerned only with the question as to whether,
on a reading of the complaint, a prima facie case has been made out or
not to issue process by the Magistrate. The law as regards issuance of
process in criminal cases is well settled. At the complaint stage, the
Magistrate is merely concerned with the allegations made out in the
complaint and has only to prima facie satisfy whether there are sufficient
grounds to proceed against the accused and it is not the province of the
Magistrate to enquire into a detailed discussion on the merits or demerits
of the case. The scope of enquiry under Section 202 is extremely limited
in the sense that the Magistrate, at this stage, is expected to examine
prima facie the truth or falsehood of the allegations made in the
complaint. Magistrate is not expected to embark upon a detailed
discussion of the merits or demerits of the case, but only consider the
inherent probabilities apparent on the statement made in the complaint. In
Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others (1976) 3
SCC 736, this Court held that once the Magistrate has exercised his
discretion in forming an opinion that there is ground for proceeding, it is
not for the Higher Courts to substitute its own discretion for that of the
Magistrate. The Magistrate has to decide the question purely from the
point of view of the complaint, without at all adverting to any defence
that the accused may have.”
18 In case of Pepsi Foods Ltd. Vs Special Judicial Magistrate
reported in 1998 5 SCC 749, Para 28 reads as under:-
”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. 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 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.”
19 Recently, in case of Deepak Gaba v. State of U.P., (2023) 3 SCC
15
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
423, it was reiterated that-
30. Even though at the stage of issuing process to the accused the Magistrate is not
required to record detailed reasons, there should be adequate evidence on record to
set the criminal proceedings into motion. The requirement of Section 204 of the
Code is that the Magistrate should carefully scrutinise the evidence brought on
record. He/She may even put questions to complainant and his/her witnesses when
examined under Section 200 of the Code to elicit answers to find out the truth
about the allegations. Only upon being satisfied that there is sufficient ground for
summoning the accused to stand the trial, summons should be issued. [Birla
Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2
SCC (Cri) 828 : (2020) 2 SCC (Civ) 713; Pepsi Foods Ltd. [Pepsi Foods
Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400];
and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 :
(2016) 1 SCC (Cri) 124.]
31. Summoning order is to be passed when the complainant discloses the offence,
and when there is material that supports and constitutes essential ingredients of the
offence. It should not be passed lightly or as a matter of course. When the violation
of law alleged is clearly debatable and doubtful, either on account of paucity and
lack of clarity of facts, or on application of law to the facts, the Magistrate must
ensure clarification of the ambiguities. Summoning without appreciation of the
legal provisions and their application to the facts may result in an innocent being
summoned to stand the prosecution/trial. Initiation of prosecution and summoning
of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort
to prepare a defence, also causes humiliation and disrepute in the society. It results
in anxiety of uncertain times.
20 Considering the factual matrix reflected from the material on record
in the light of aforestated dictum of law, In view of the above discussion,
this Court is of considered opinion that the impugned summoning order
suffers from impropriety and illegality. Learned Magistrate proceeded to
take cognisance and direct issuance of process against the petitioners
without application of judicial mind to the material available on record
regarding existence of essential ingredients of the alleged offence. The
allegations made in complaint and the material annexed therewith
including the statement of complainant recorded u/S 200 of Cr.P.C. do not
prima-facie constitute the offences punishable u/Ss 406 and 420 of IPC
against the petitioners. The criminal proceedings is manifestly maliciously
instituted after undue delay, as a counter-blast to the proceedings
16
NEUTRAL CITATION NO. 2025:MPHC-IND:11835
prosecuted by petitioner – Gauri Takalkar against respondent – Rahul.
Therefore, inherent jurisdiction under Section 482 of the Code of Criminal
Procedure can be justifiably invoked to prevent abuse of the process of
law.(Deepak Gaba v. State of U.P., (2023) 3 SCC 423 ; Kailashben
Mahendrabhai Patel v. State of Maharashtra, 2024 SCC OnLine SC
2621 also Relied)
21 Consequently, the impugned private complaint dated 31.08.2021
filed by respondent Rahul Dilip Takalkar against the petitioners and the
summoning order dated 20.10.222 passed in RCT No. 26517/2021 (RCT
No. 10458/2022) by the Court of learned Judicial Magistrate First Class,
Indore are quashed. The petitioners stand discharged.
Let a copy of this order be sent to the concerned Police Station and
the trial Court for information and compliance.
C.C as per rules.
(SANJEEV S KALGAONKAR)
BDJ JUDGE
Digitally signed by BHUNESHWAR DATT
BHUNESH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENTCH AT INDORE, ou=HIGH COURT OF MADHYA
PRADESH BENTCH AT INDORE,
2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a74a
94a5534aed3a66d9385cfcfc201e0,
WAR DATT
postalCode=452001, st=MADHYA PRADESH,
serialNumber=89FD75A8D0C99E05779A327974E4
6BC85102826CE0604B211E4C91102B4D1269,
cn=BHUNESHWAR DATT
Date: 2025.05.05 20:26:04 +05'30'
[ad_1]
Source link