1 S. No. 41 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No. 105/2022 CrlM No. (364/2022) HUMAIRA FAROOQ …Petitioner Through: Mr. Hazim Qureshi, Advocate. Vs. IRFAN GHULAM NABI ... Respondent(s) Through: Mr. Sofi Manzoor, Advocate. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R (ORAL) 16.09.2025 1. Inherent power of this Court has been invoked by the petitioner herein in the instant petition enshrined under Section 482 Cr.P.C. (now Section 528 BNSS) for quashing of complaint titled as “Irfan Ghulam Nabi V/s Humaira Farooq” including order dated 08.11.2019 passed by the court of 2nd Additional Munsiff, Srinagar (hereinafter for short “the Magistrate”). 2. Facts emerging from the record would reveal that the complainant- respondent herein filed a complaint under Section 420, 506 IPC against the accused/petitioner herein alleging therein that the accused/petitioner cheated him while inducing him to part with valuable articles including gold of Rs.7 Lakhs as also cash worth Rs.5 Lakhs under a promise that she, the accused/ petitioner herein would marry him and that few days before the filing of the complaint, the accused/petitioner herein met the complainant/respondent herein at Bemina, Srinagar, and the complainant-respondent herein demanded the return of the said valuable articles and money from the accused-petitioner herein, in response whereof the accused-petitioner herein 2 harassed and threatened him of dire consequences in case he asks for the return of money or resorts to any legal proceedings. 3. The said complaint came to be presented before the Magistrate on 8th November, 2019 whereupon the Magistrate after recording the statements of the complainant/respondent herein and one of his witness took cognizance of the offences under Sections 420 and 506 IPC and consequently summoned the accused/petitioner herein. 4. The accused-petitioner herein has maintained the instant petition while throwing challenge to the impugned complaint, proceedings initiated thereon as well as order dated 8th November, 2019, on the premise that the complaint is fraudulent, perverse and is an abuse of process of law besides the offences, cognizance of which stands taken by the Magistrate and that the essential ingredients of the alleged offences are missing and that the Magistrate was not competent to proceed with the impugned complaint and that there has been non-application of mind on the part of the Magistrate in entertaining the complaint and proceeding therewith the same. Heard counsel for the parties and perused the record. 5. Before the proceeding to advert to the case setup by the petitioner herein in the instant petition, it would be appropriate to refer hereunder the impugned complaint being relevant herein; That the complainant and accused were in a fiduciary relationship and trust since August 2016, and in pursuance of the same the complainant offered for Nikah to accused and same was accepted by accused, but same proved to be hoax and for money only. That the complainant had lot of Trust on the accused but it was deceitful means of the accused who induced the complainant to handover many valuable articles including Gold of Rs. 7.00 Lacs (which was taken by 3 complainant from partner to establish a School), and cash worth Rs 5.00 Lacs. The complainant, on asking to return the same, the accused in June 2019, filed a false complaint in the Police Post Chanapora Srinagar and deceitfully accused called from the mobile number of mother on 24.06.2019 (8716960220) at about 1:30 pm, and asked to gift a new cell phone and handover the same at Cancer Society Hospital Lal Nagar Chanapora Srinagar. That on 25.06.2019, when complainant reached on spot, it proved to be a plot of accused in order to trap the complainant, and on reaching therein the police personals of Police post Chanapora came in civil uniform and took the complainant forcibly to the police post where he was beaten and all call details, photographs videos, details of Gold and cash has been erased from the cell phone of complaint wherein no FIR was registered because complainant as found in no fault and offences, but in order to release the complainant the police post received an amount of Rs.15,000/= and the police personals and the accused threatened the complainant6 of dire consequences in case the complainant asks for the amount and golden articles. That on 28.06.2019, the complainant served a demand notice to accused, who didn’t brother to repay but started claiming that the complainant is defaming the accused, in order to save herself from being prosecuted for 420 IPC and threatening the complainant and pressuring him in order him, not to take any legal action. That the complainant called upon the accused who assured complainant for payment but day in and day out the assurances proved only waste of precious time of complainant, and complainant has been suffered to heavy loss and has but till date has not made the payment. That the complainant has been cheated by the accused, the accused induced the complainant to pay the amount with an assurance that she will pay back the amount and Gold yet she didn’t paid and hence dishonestly benefits herself and gained the benefit wrongfully (wrongful gains) hence cheated the complainant. That before some days the accused met with complainant at Bemina Srinagar and complainant got a chance to ask for the Re-Payment of the amount but perturbed by the said situation, the accused browbeated and harassed the complainant and threatens him of dire consequences in case he asks for money or resorts to any legal course. 6. Before proceeding further in the matter, it would also be appropriate to refer to the offences of Sections 415, 420 and 503 & 506 IPC: - Section 415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to 4 consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Section 503. Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation. Section 420. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 506. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both and if threat to be cause death or grievous hurt, etc or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. What emerges from the aforesaid provision of Section 415 that the same consist of two parts, while in the first part the person “must dishonestly or fraudulently” induce the complainant to deliver any property and in the second part need not relate to the property and that for holding a person guilty of offence of cheating, it has to be shown that the intention of the accused was dishonest at the time of making the promise i.e. from the very inception/beginning. 5 Insofar as the aforesaid offence under Section 506 IPC is concerned, the same provides for the punishment of the offence of criminal intimidation provided under Section 503 IPC. It also gets revealed that for constituting an offence of criminal intimidation, the following essential ingredients must exist; (1) Threatening a person with any injury (i) to his person, reputation or property or (ii) to the person, or reputation of any one in whom that person is interested. (2) the threat must be with intent (i) to cause alarm to that person or (ii) to cause that person to do any act which he is not legally bound to as the means of avoiding the execution of such threat (iii) to cause that person to omit to do any act which that the person is legally entitled to do, as the means of avoiding in the execution of such threat. It is consistent view of the Courts that a mere threat is not sufficient to attract the commission of the offence of criminal intimidation, but the threat must be extended with intent to cause along with that person threatened. 7. Keeping in mind to aforesaid provisions of law and reverting back to the case in hand, the complainant/respondent herein in the complaint has stated that he was in relation with the accused/petitioner herein since 2016 and had even offered her to perform Nikkah with him which the accused petitioner herein accepted. It has also been stated in the complaint by the complainant- respondent herein that he, the complainant/respondent herein have had lot of trust over the accused/petitioner herein but the accused petitioner by 6 deceitful means induced him to hand over money/ valuable article including gold of Rs.7 Lakhs which had been borrowed by him from a friend for establishing a school and that the accused/petitioner herein in month of June 2019 filed a false criminal complaint in Police Post Chanapora and deceitfully got him called from her mother’s home on 24th June 2019 at about 1:30 p.m. and asked for the gift of new cell phone and that on 25th June 2019 when the complainant reached on a spot suggested by the accused petitioner the police personnel caught hold of him and took him forcibly to the Police Post where his call details, photographs, videos and details of the gold and cash lying in his phone came to be erased and that no FIR was registered in this regard and he the complaint respondent herein was released upon the payment of Rs.15,000/- to the police personnel and that the police personnel and the accused thereafter threatened the complainant respondent herein that in case he asked for the amount and gold articles, he shall have to face dire consequences. It is also alleged in the complaint by the complainant-respondent herein that on 28th June, 2019 he served a demand notice upon the accused/ petitioner herein for repayment of the money, however, the accused petitioner in return alleged that he, the complainant defamed her and then threatened him not to take any legal action. 8. As is manifest from a closer examination of the allegations levelled in the impugned complaint, the complainant/respondent herein has no where alleged therein that he was cheated by the accused/petitioner herein from the very beginning of their relationship ore that the accused petitioner herein have had dishonest intention to cheat him when the money and gold was 7 paid and given to her by the complainant. The position of law in regard to the offence of cheating is no more res integra and stands settled by the Apex Court in series of judgment including in case tiled as “Hridaya Ranjan Prasad Verma and ors. Vs. State of Bihar and Anr., reported in 2000 (4) SCC 168”,“Vesa Holdings Private Limited and Another Vs. State of Kerala and ors., reported in 2015 (8) SCC 293” and “G.V. Rao Vs. L. H. V. Prasad reported in 2000(3) SCC 693” wherein it has been held that to hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise and that from his or her mere failure to keep a promise subsequently cannot presumed. 9. Therefore, in view of above, the commission of alleged offence of cheating in the complaint by the complainant/respondent herein, under no circumstances can said to be made out, in that, the very essential ingredient of the offence of cheating, i.e., that the person of the accused/ petitioner herein had the dishonest intention from the very outset. 10. Insofar as the offence under sections 503 and 506 IPC is concerned, the cognizance whereof has also been taken by the Magistrate in the impugned order, a bare perusal of the complaint manifestly signifies that the said offence as well is not made out. Here it would be appropriate to refer to the law laid down by the Apex Court in the matter of summoning of an accused passed in case titled as ‘Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate and others reported in (1998) 5 SCC 749” wherein following has been held at paragraph 28:- 8 “28. 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 scrutinize 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. A further reference in regard to above to the Judgment of the Apex Court Judgment passed in “Mehmood ul Rehman v. Khazir Mohammad Tunda and Others reported in (2015) 12 SCC 420” wherein following has been held by the Apex Court at paragraphs 20, 21 and 22 “20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter. 21. Under Section 190(1)(b) of Cr.P.C., the Magistrate has the advantage of a police report and under Section 190(1)(c) of Cr.P.C., he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of Cr.P.C., he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of Cr.P.C. The complaint is simply to be rejected. 9 22. The steps taken by the Magistrate under Section 190(1)(a) Cr.P.C followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and 31 CRMC No.58/2019 the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 Cr.P.C, the High Court under Section 482 Cr.P.C is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” 11. Having regard to the aforesaid principles of law laid down in the judgments supra by the Apex Court qua the summoning of an accused by the Magistrate while examining the impugned order dated 08.11.2019, it is manifest that the Magistrate has exhibited lack of application of mind and has proceeded in the matter mechanically and in a causal manner overlooking the aforesaid position and principles of law. 10 12. Viewed thus, for what has been observed, considered, and analyzed hereinabove, the exercise of inherent power seemingly is warranted in the instant case. 13. Accordingly, instant petition succeeds, as the consequences whereof impugned complaint titled as “Irfan Ghulam Nabi v. Humaira Farooq” including order dated 08.11.2019 passed by the court of 2nd Additional Munsiff, Srinagar, is quashed. 14. Disposed of along with connected application/s. (JAVED IQBAL WANI) JUDGE SRINAGAR 16.09.2025 “Opinder” Whether the order is speaking? Yes/No Whether approved for reporting? Yes/No