Case Note & Summary
The petitioner, Shaikh Noor Shaikh Nanhu, was original accused no.4 in Regular Criminal Case No. 65/2000 pending before the Judicial Magistrate (F.C.), Jintur. The case arose from a private complaint filed by respondent no.2, Jintur Urban Cooperative Bank Ltd., against the petitioner and respondent nos.3 to 6. The complaint alleged that the petitioner and respondent no.6 made false documents and cheated the bank, and that the petitioner issued a cheque which was dishonoured. The learned Magistrate, by order dated 20th January 2012 passed below Exhibit 125, issued process against the petitioner for offences under Sections 467, 468, 471, 420, 120-B of the Indian Penal Code (IPC) and Section 138 of the Negotiable Instruments Act, 1881. The petitioner challenged this order by filing a criminal writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench. The main legal issue was whether the order issuing process could be sustained in the absence of any allegation that the petitioner made a false document. The petitioner argued that the complaint did not contain any specific allegation that he forged or made any false document; the only allegation was that he issued a cheque which was dishonoured. The respondent bank contended that the petitioner was involved in the forgery. The High Court examined the complaint and found that the only allegation against the petitioner was that he issued a cheque which was dishonoured. There was no allegation that he made any false document or that he was involved in the preparation of any false document. The court held that the essential ingredient of forgery under Section 467 IPC is the making of a false document with intent to cause damage or injury. Since the complaint did not allege that the petitioner made any false document, the process for offences under Sections 467, 468, 471 IPC could not be sustained. However, the court found that the allegations regarding the dishonour of the cheque were sufficient to constitute a prima facie case under Section 138 of the Negotiable Instruments Act, 1881. Therefore, the court quashed the order issuing process for the IPC offences but upheld the process for the NI Act offence. The petition was partly allowed.
Headnote
A) Criminal Procedure Code - Quashing of Process - Section 482 Cr.P.C. - Lack of Prima Facie Case - The petitioner, original accused no.4, sought quashing of the order dated 20th January 2012 issuing process against him for offences under Sections 467, 468, 471, 420, 120-B IPC and Section 138 of the Negotiable Instruments Act, 1881. The complaint alleged that the petitioner and co-accused made false documents and cheated the bank. The High Court held that the allegations in the complaint did not disclose that the petitioner made any false document; the only allegation was that he issued a cheque which was dishonoured. Since the essential ingredient of forgery (making a false document) was absent, the process for offences under Sections 467, 468, 471 IPC could not be sustained. However, the process for offence under Section 138 of the Negotiable Instruments Act, 1881 was upheld as the cheque was dishonoured. Held that the order issuing process for IPC offences is quashed, but the complaint continues for the NI Act offence. (Paras 6-8) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Prima Facie Case - The complaint alleged that the petitioner issued a cheque which was dishonoured. The court found that the allegations were sufficient to constitute an offence under Section 138 of the Negotiable Instruments Act, 1881, as the cheque was dishonoured and the statutory notice was given. Therefore, the process for that offence was not interfered with. (Para 8)
Issue of Consideration
Whether the order issuing process against the petitioner for offences under Sections 467, 468, 471, 420, 120-B IPC and Section 138 of the Negotiable Instruments Act, 1881, can be sustained in the absence of any allegation that the petitioner made a false document.
Final Decision
The petition is partly allowed. The order dated 20th January 2012 passed below Exhibit 125 in Regular Criminal Case No. 65/2000 by the learned Judicial Magistrate (F.C.), Jintur, is quashed and set aside to the extent of issuance of process against the petitioner for the offences punishable under Sections 467, 468, 471, 420 and 120-B of the Indian Penal Code. However, the process issued against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, is maintained. Rule is made absolute accordingly.
Law Points
- Forgery requires making of false document with intent to cause damage or injury
- Dishonour of cheque alone not sufficient for forgery
- Quashing of criminal process when no prima facie case
