Judgment : Kamal Shivaji V. State of Maharashtra

Judgment Date  12 Feb 2019                                                                                         Click Here To Read Digest
Kamal Shivaji ...... Appellant(s)
THE STATE OF MAHARASHTRA & ORS. .....Respondent(s)

Criminal Appeal No. 255 of 2019 (Arising out of SLP (Crl.) No. 7513 of 2014)

Kamal Shivaji V. State of Maharashtra

Leave granted.
1. The Trial Court issued process to the Respondents in the
complaint filed by the Appellant. The Writ Petition filed by the
Respondents against the issuance of process was allowed. The
High Court set aside the process issued by the Trial Court as
affirmed by the Revisional Court in the Criminal Writ Petition
filed by the Respondents. Aggrieved thereby, the Appellant
has filed this appeal.

2. It was alleged by the complainant that her father
Shamrao Nalavade expired on 17.01.1994. The Respondents
were accused of forgery and preparing false documents on the
basis of which a development agreement dated 11.12.2002
came into existence. On the basis of the above facts, the
complainant alleged that the Respondents made themselves
liable for being prosecuted under Sections 420, 465, 467, 468,
471 read with Section 34 of the Indian Penal Code, 1860
(hereinafter referred to as ‘the IPC’). The complaint that was
filed on 18.11.2008 was sent for investigation under Section
156 (3) of the Criminal Procedure Code, 1973. The police
submitted a report stating that the matter appeared to be of a
civil nature.

3. The Trial Court recorded the statement of the husband of
the Appellant and directed issuance of process to the
Respondents. The Respondents filed a revision challenging
the issuance of process against them which was dismissed.
The High Court allowed the Writ Petition filed by the
Respondents, holding that the dispute is of a civil nature, and
criminal proceedings against the Respondents would be an
abuse of the process of law. The High Court recorded a finding
that the disputed document cannot be stated to be a sham
document, as Shamrao during his lifetime stated on oath that
he had handed over the possession of the land to the
Respondents. The submission made on behalf of the
Respondents that the matter is entirely of a civil nature was
accepted by the High Court.

4. The only point that arises for our consideration in this
case is whether the High Court was right in setting aside the
order by which process was issued. It is settled law that the
Magistrate, at the stage of taking cognizance and summoning,
is required to apply his judicial mind only with a view to taking
cognizance of the offence, or in other words, to find out
whether a prima facie case has been made out for summoning
the accused persons. The learned Magistrate is not required to
evaluate the merits of the material or evidence in support of
the complaint, because the Magistrate must not undertake the
exercise to find out whether the materials would lead to a
conviction or not1

5. Quashing the criminal proceedings is called for only in a
case where the complaint does not disclose any offence, or is
frivolous, vexatious, or oppressive. If the allegations set out in
the complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is open to the
High Court to quash the same. It is not necessary that a
meticulous analysis of the case should be done before the Trial
to find out whether the case would end in conviction or
acquittal. If it appears on a reading of the complaint and
consideration of the allegations therein, in the light of the
statement made on oath that the ingredients of the offence are

1 Sonu Gupta v. Deepak Gupta and Ors. 2015 (3) SCC 424.
disclosed, there would be no justification for the High Court to

6. Defences that may be available, or facts/aspects which
when established during the trial, may lead to acquittal, are
not grounds for quashing the complaint at the threshold. At
that stage, the only question relevant is whether the
averments in the complaint spell out the ingredients of a
criminal offence or not3

7. Relying upon the aforementioned judgments of this Court,
Mr. M. N. Rao, learned Senior Counsel appearing for the
Appellant submitted that the High Court acted in excess of its
jurisdiction in setting aside the order of the Trial Court by which
process for summoning the accused was issued. He further
submitted that the evaluation of the merits of the allegations
made on either side cannot be resorted to at this stage.

8. Mr. R. Basant, learned Senior Counsel appearing for the
Respondent Nos.2 to 6 and 8 to 11 submitted that a proper
evaluation of the material on record would disclose that the
complaint is frivolous. He submitted that the dispute is
essentially of a civil nature and the ingredients of the offences
that are alleged against the Respondent are not made out. By
making the above statement, Mr. Basant commended to this

2 State of Karnataka v. M. Devendrappa and Anr. 2002 (3) SCC 89
Indian Oil Corporation v. NEPC India Ltd. and Others, 2006 (6) SCC 736
Court that there is no warrant for interference with the
judgment of the High Court.

9. Having heard the learned Senior Counsel and examined
the material on record, we are of the considered view that the
High Court ought not to have set aside the order passed by the
Trial Court issuing summons to the Respondents. A perusal of
the complaint discloses that prima facie, offences that are
alleged against the Respondents. The correctness or otherwise
of the said allegations has to be decided only in the Trial. At
the initial stage of issuance of process it is not open to the
Courts to stifle the proceedings by entering into the merits of
the contentions made on behalf of the accused. Criminal
complaints cannot be quashed only on the ground that the
allegations made therein appear to be of a civil nature. If the
ingredients of the offence alleged against the accused are
prima facie made out in the complaint, the criminal proceeding
shall not be interdicted.

10. Accordingly, the appeal is allowed and the judgment of
the High Court is set aside.

New Delhi,
February 12, 2019.

February 18, 2019

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