Case Note & Summary
The petitioner, Mrs. Nanda Kunkolienkar, challenged an order of the learned Special Judge dated 26.11.2018 confirming the framing of charges against her by the Judicial Magistrate, First Class, Panaji, in case no. IPC/202/2012/C. The charges were for offences under Sections 419, 467, 468, 471 and 420 IPC read with Section 34 IPC. The complaint was filed by one Mr. Cesar Rego Fernandes alleging that the petitioner, her husband (accused no.1), and six others, in furtherance of common intention, impersonated a deceased person, Ms. Luiza Maria D'Souza, by preparing a forged Will dated 9.8.2002 and a Gift Deed dated 5.1.2009 to illegally acquire property surveyed under No.244/02 at Village Kalapur. The complainant claimed that Luiza died on 25.7.2002, and the Will purportedly executed on 9.8.2002 was forged. The Gift Deed was executed by accused no.1 in favour of the petitioner. The petitioner argued that she was only the donee under the Gift Deed and had no role in the alleged forgery. The court examined the material on record and found that there was no prima facie evidence that the Will or Gift Deed were forged, nor any evidence of the petitioner's involvement in the alleged conspiracy. The court held that the trial court erred in framing charges against the petitioner as the essential ingredients of the offences were not made out. The petition was allowed, and the impugned order was quashed to the extent of the petitioner.
Headnote
A) Criminal Procedure - Charge Framing - Prima Facie Case - Sections 227, 228 CrPC - The court must evaluate whether the material on record, if unrebutted, would lead to conviction; mere suspicion is insufficient. Held that the trial court failed to apply this standard, as the Will and Gift Deed were not shown to be forged at the charge stage. (Paras 6-10) B) Indian Penal Code - Forgery - Sections 467, 468, 471 - Gift Deed - The petitioner was the donee under a Gift Deed executed by her husband, who was the beneficiary under a Will. Without evidence that the petitioner participated in the forgery or had knowledge of it, no prima facie case for forgery or using forged document as genuine is made out. (Paras 11-15) C) Indian Penal Code - Cheating - Section 420 - Ingredients - The complaint did not allege any deception by the petitioner or inducement leading to delivery of property. Held that the essential ingredients of cheating are absent against the petitioner. (Paras 16-18) D) Indian Penal Code - Criminal Conspiracy - Section 34 - Common Intention - The petitioner's mere relationship with the co-accused husband does not establish common intention to commit the alleged offences. No overt act attributed to the petitioner. (Paras 19-21)
Issue of Consideration
Whether the learned Special Judge erred in confirming the order framing charges against the petitioner for offences under Sections 419, 467, 468, 471 and 420 IPC read with Section 34 IPC, when the material on record did not disclose a prima facie case against her.
Final Decision
The petition is allowed. The impugned order dated 26.11.2018 passed by the learned Special Judge confirming the order of framing charges against the petitioner is quashed and set aside. The petitioner is discharged from the case.
Law Points
- Charge framing requires strong suspicion
- not proof beyond reasonable doubt
- but court must consider whether material on record
- if unrebutted
- would lead to conviction
- Prima facie case for forgery not made out when Will and Gift Deed are not demonstrably forged at charge stage
- Petitioner cannot be vicariously liable for husband's acts without evidence of common intention
