Non-Reportable  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

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

SAU. KAMAL SHIVAJI POKARNEKAR                                                                       .... Appellant(s)

Versus

THE STATE OF MAHARASHTRA & ORS.                                              ….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

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

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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.  

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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.

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disclosed, there would be no justification for the High Court to

interfere2.       

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 3 Indian Oil Corporation v. NEPC India Ltd. and Others, 2006 (6) SCC 736  

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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.                  

                   ..…................................J                                                    [L. NAGESWARA RAO]

                                             ..…................................J                                      [M.R. SHAH]

New Delhi, February 12, 2019.

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