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Hussein HM (Software Consultant)     17 April 2014

My complaint under ipc 419, 420 & 463 dismissed

Dear Experts,

 

Case Overview :

My wife & my inlaws provided false information of age & qualifications of her during the Marriage. This information was thru email. After marriage, in order to make Marriage Certificate, Passport etc. I started demanding her documents. Initially they denied, later made an exuce that all Docs/Certificate are lost.

 

They provided me a Birth Certificate photo-copy and were insisting to make Marriage Certificate, Passport, etc just on the basis of that Birth Certificate. This Certificate was also provided to me thru a scan on an email.

 

When I requested them to procure a Duplicate Leaving Certificate from School thru an Afidavit, they then started threatening me various false complaints they will makde if I demand the Docs again.

 

I then doubted and started looking for her details. I secretly approached her Bank, where she is working & obtained all the Certificates' photo-copies which she had submitted during her employment with the Bank.

This Certificates & the information which she/they had provided was absolutely opposite. Moreover, observed that the Birth Ceritifcate which they had provided thru an email earlier, was a forged one; where the year of Birth was changed by them.

 

When they came to know that I have investigated all, they then started threatening me various false charges again. I have made a NC FIR of all those threatenings and have recorded their vioce on mobile too.

 

I then filed a Complaint under IPC 419, 420 & 463. So far the accused (wife & her family) werent called. The Judge made a hearing only with me. The Judge everytime mentioned that he will pass an Order to call them & hear them too. But at the end (after some 8 months) passed an Order that he is dismising the case since there is no logic of cheating.

 

The Judge even mentioned that such Forgery (of the Birth Certificate) is also not acceptable for a Criminal Punishment.

 

I need Guidance from you all, that :

  1. Is my case really not applicable for a Criminal Charges on my In-Laws ? 
  2. Is such cheating allowed in Marriages ?
  3. Shall a person doing such act, go scot free from the Judicial Justice in our Indian Laws ?
  4. What shall I do to catch the attention of the Judges, that my case really falls under CrPc and accused are liable for investigation & punishment ?

 

Awainting your valuable guidance & thank you very much.

Regards,

Hussein.



Learning

 17 Replies

cyberlawyer (barrister)     17 April 2014

What is the prejudice caused to you by the fraudulent acts of your wife ?

What was the actual information which you got from the bank records ? 

What is the purpose of giving these false information by your wife ? Unless you place these before the judge, the prejudice caused to you for giving such false information and the motive of your wife in doing so, your case will be thrown away which is usual. 

Its not your case, that your wife is illiterate and moreover she was an employee of a bank. You could have guessed her age before marriage. 

If your wife before marriage had sworn an affidavit saying that her age is so and so and her qualification is so and so and you were expecting a bride of such age and such qualification and based on such materials you married her, your case MAY be considered. 

In the absence of the above, if you fail to show that there is no actual loss / prejudice to you by your wife's acts, then even if it is proven that your wife has given false information, your case will hardly be entertained. 

Hussein HM (Software Consultant)     17 April 2014

Dear Sir,

 

Thank you for the reply. So this means, under such cases even if a Birth Certificate is forged, then too it is not a crime. Becuase Forgery of Govt Doc is a serious Crime, irrespective oft he Motive behind it. This shows a Deceptive Mind of the accused.

 

I dont know their actual moto behind doing such a thing. May be I investigated & found too early about the fraud they commited. But they have provided all false information in writing thru an email. In order not to get disclosed they started threatening me with various false charges of domestic violence on her. They even said that for divorse I will have to pass some of my property to her. Does that mean, that they married & forged everything for property purpose.

 

There is a IPC Section 406 (Breach of Trust), isnt it not also Breach of Trust. Before marriage in our culture we trust what is informed to us. We didnt go for Legal Verification.

 

There was a episode in Crime Patrol. A girl provided false information to a guy. She gave such a information just to get rid of the guy and she did not marry him. Though this was a Crime registered as Fraud and bail granted to the girl later on.

 

In my case there is a false information + marriage + threatenings thru email to keep the fraud disclosed.

 

I m surprised if this is the justice, then we boys should be displaying Bunglows, Factories, Mercedes & BMWs to get married and then after marriage let we be normal middle class guys ! As per above, them this too would not be a Crime, since there is no Criminal Moto. Sorry but this is just a Sarcastic to the situation of justice I had.

 

 

 

Regards,

Hussein.

cyberlawyer (barrister)     18 April 2014

What you are saying is theoritically  correct. But in practical is our judiciary following exactly what is enacted in the ACTS ?. Even in courts the exact actual procedure is not followed and it is modded according to the convenience and needs of the advocates and judges. 

It seems that you have contested the case in person. Did you engage a good criminal lawyer and place your submissions before the magistrate ? 

Actually what is the age difference in the forged birth certificate and the differences in the degree certificates ? 

Please understand that giving an impression that you are rich like having bungalow, etc etc cannot be equated with giving a false information with regard to age and qualification. The reason is a person showing himself as rich thereby inducing a bride to marry him on the basis of such richness is more serious as a  usually a  bride is dependant on the groom for financial support, safety and security and not vice versa. 

If you take the offence of groom projecting himself as a rich guy and the offence of a bride showing herself as highly qualified and based on this the other party marries, the former one is more serious. Moreover i dont know even how serious the former offence is treated in a court of law. 

If your wife is illiterate and but given fabricated qualification related documents, then in that situation your case would have been very strong. 

What is the judgment given by the magistrate ? which shows the reason for dismissing the case. 

 

Hussein HM (Software Consultant)     18 April 2014

Dear Sir,

Thank you very much for your prompt replies & guidance.

I also understood your point and sorry for the sarcastism earlier.

 

Sir, to answer your concerns :

  1. Her actual Birth Date is 21-Oct-1974 which was forged in Birth Ceritifate as 21-Oct-1984.
  2. She is M.Com by qualifications but mentioned as MBA from Narsee Monjee Institute of Management. This is a reputed Business PG Insititute. No fabricated Doc was submitted to me. But I have a Resume from her thru an email mentioning all these.
  3. Also there is a Marriage Beaurue which is part of this plan.
  4. She has signed on the Nikah Certificate which had her false DoB.
  5. It seems that since she was aged and her parents forced her to marry. This was mentioned by her in an email, which she sent after when she received my 1st Legal Notice mentioning the lie/forgery they have done and complete Modus Oparandi.
  6. The Judgement by the Magistrate is, none of the sections are applicable as Crime for the act they have done. Even for the Forged Birth Ceritificate the Magistrate mentioned that "may be this is not forged only for the purpose of Marriage". This statement was also more shocking to us.
  7. This judgement came even after submitting all evidences like Nikah Certificate, Resume thru email, her forged Birth Ceritificate, her last email accepting what has been done by her/them. 

Sir, I am finding your replies as correct guidance. Please help/guide me here. I will be greatly obliged.

 

 

Regards,

Hussein.

cyberlawyer (barrister)     18 April 2014

Hmm the difference is 10 years. So is she elder than you ?. If so, you have a very fit case.  Initially since you ignored to disclose the age difference, i was under the impression that it is only 2 - 3 years. On this basis alone the case is triable.

Secondly have you married her strongly relying on the basis of her qualification ?. I am not saying this reliance is wrong, you may have considered this and shown some preference to marry her. 

Is this the only issue between you and your wife ?. May be the magistrate MAY have thought that with some ulterior motive you are trying to institute proceedings against your wife which may help you in getting a decree for divorce in future...

For the qualifications part, i dont know how seriously the courts would view this, but as for the age part , the courts will and should view it seriously which will be a lesson for others. 

Finally  may i know what is that you would like to accomplish by getting punishment for her ?. I dont think giving false age is a grounds for getting divorce atleast under the Mohameddan law , but the only point in your favour is there is an age difference of 10 years which is admitted by your spouse. 

Just engage a good criminal lawyer and handover the case to him. Since the matter is disposed on merits i dont think it can be resumed in the trial court. Most probably you will have to challenge the verdict before the appellate court. 

 

Hussein HM (Software Consultant)     18 April 2014

Dear Sir,

 

This is issue is one of the problems. Both the mother & daugther (my wife & my mother in law) had a high hopes from marriage. This is the reason the age & time passed away. Even after marriage they kept on praising her freinds who were well settled with Husband & In laws abroad.

 

Sir, I married absolutely on trust basis. As I mentioned earlier, my wife in her reply has also mentioned that the Marriage Beaurue was also a part of this. According to them, all such certificates would not be required so early after marriage, since a Muslim goes for a Pilgrimage abroad during old age only. Thus all such would remain disclosed till then.

 

Sir, there were also threatening to me when I was demanding Docs. They have went to extent of filing a complain that I attempted to burn her (my wife).

 

Sir, you will be surprised that she is a Sr Manager in a reputed Private Sector Bank. But inspite of such she indulge in forgery, threatenings thru emails & SMS, etc.

 

I m not at all attracted with what position she is having now. But the modus oprandi they used to keep the facts disclosed itself shows the future dangers on me, if I continue with my life with her (forgetting everything). This clearly gives a message that the reason behind all this is a force on her at her place to get marry, since I trusted whatever mentioned.

 

In the complaint, I had mentioned everything in details date wise with evidences. I was also threatened by her brother & bhabi. They threatened me that will complain that I raped her bhabi if I do not withdraw the cases against them. These threatenings on mobile was recorded in mobile recorder application.

 

The act done by them, itself shows a deceptive mind.

 

Sir, how do I put this all forward. Is it like it is triable case, but we have not put it forward correct. 

Sir, we had put IPC Sec 419, 420 & 463. Are these correctly applied in this case of mine. Are there some more correct IPC Secs which my Lawyer has missed.

 

Regards,

Hussein.

cyberlawyer (barrister)     18 April 2014

Mr.Hussein

When was your marriage solemnized ?. 

"Even after marriage they kept on praising her freinds who were well settled with Husband & In laws abroad".

The above statement shows that you were being compared with others and insulted by your wife and inlaws. 

"But the modus oprandi they used to keep the facts disclosed itself shows the future dangers on me, if I continue with my life with her (forgetting everything)"

The above statement shows that you are not ready to live with her for giving false  facts regarding her age and qualification and for being insulted.

In Mohameddan Law, getting divorce is not as difficult as getting it in other religions. But you will have to pay alimony / permanent settlement to your wife and the sum will depend upon the facts placed and the pleadings of your lawyer. 

But think twice if it is impossible to live with your spouse, because it is well settled that if you get divorce and want to re-join your wife after a change in your mind there is a procedure which your wife has to undergo before marriage with you. 

If you have decided to divorce her It is best to take up the matter in appeal. 

I dont know if these acts attract other sections of IPC as i mostly deal with civil matters. Kindly get in touch with a criminal lawyer and proceed. 

You can even wait for the reply of ld. criminal lawyers in this forum

Good Luck..

 

 

Hussein HM (Software Consultant)     18 April 2014

Dear Sir,

 

Thank you very much. Appreciate your prompt replies.

 

It is true that I will not continue with my wife and the greedy family around her. The threatenings were serious too. Her bhabi threatened to kill my child (thru SMS) and also threatened that she will make a complain that I raped her once. Continueing with such family will spoil my future completely. My wife supports her family's such act.

 

My marriage was on 08-Apr-2012. I investigated all her facts on 07-Mar-2013. This success of Investigation I kept confidential from them, knowing the fact that they are unethical. This was time, when they proposed a Divorce (thru email) and were planning for Divorce with false charges.

They were all in good mood to take disadvantage of IPC Sec 498A, etc.

 

Just then I issued them a Legal Notice on 28-May-2013 with all eveidences of false/forged Docs, emails/SMSs of threatening, etc. In this Legal Notice, everything was disclosed about the way I did investigations and their unethical modus oprandi.

 

So far none of the Notices are replied. I have filed a Custody Petition for my child too. But the sad part is our Laws / IPC is not applicable for the Acts/fraud/forgery they have done.

 

 

Regards,

Hussein 

cyberlawyer (barrister)     19 April 2014

Ok one final query. Now you are elder or younger than your wife as per your wife's real DOB ?. 

cyberlawyer (barrister)     19 April 2014

Ok one final query. Now you are elder or younger than your wife as per your wife's real DOB ?. 

R.SHAH (OFFICE STAFF)     02 May 2014

hi, i have randomly gone thru this post and comes to some points. 1. if your have file the private complaint, whether you pray for police investigation u/s156(3) croc to magistrate? if magistrate allows your prayers then this would have help you as police will investigate and file it's report or chargesheet in the maater and becomes police/state case and not a private case. 2. forgery is hit by cprc 195, which rewuired court to make complaint u/s 340 crpc. But when forgery is committed and same can be investigate by police and upon it' sreport magistrate can make complaint thereof. (refer iqbal singh marwah supra case) 3. as stated DOB with big difference which was not disclosed definetly is a crime of cheating to deceive another. Even the officer or any other involved in making forged document are also responsible. 4. Now you have to challange the order of magistrate court inupper court and convince the appellate court for remanding the matter back for fresh consideration and/or investigation by police into the matter. 5. with regards to mohammedan law of divorce refer mulla principles of mohemmedan law and supreme court judgment in Shabana bano vs imran khan. this judgment was an interpretation in musilm law by SC. but will help you to understand what court of law views. regards

R Trivedi (advocate.dma@gmail.com)     05 May 2014

What is your age ?

 

1. And where is the cheating ? Can you please put on paper what loss is caused to you just because she is 10 years old.

 

2. In general it is the offense to submit the forged document to government agencies, for private transaction, the applicability is not straightforward.

 

3. CrPC 195 is not applicable in such matters. (away from court).

 

4. How can you prove that the age document email is sent by her only ?

 

5. Generally it is impossible to miss an age difference of 10 years, she would not be in burqa all the time, after all she is a working lady.

 

6. Court does not understand the criterion of age difference between two adults for marriage, I have not seen the email, unless email is very self incriminating  it cannot be proved that forged dob certificate was sent to you for the purpose of getting married only.

 

So forget it, session court is also going to throw it out may be after taking one or two years.

Hussein HM (Software Consultant)     05 May 2014

Hello all,

 

Thank you very much for different opinion.

 

My wife has accepted in an email that what she & her family have done. This email came after when our 1st Notice reached them.

Thank God I dont have a habit of deleting SMSs or emails, irrespective from/to whoever. Therefore, not only this, there are many such emails from her, which has her DoB & higher Qualifications mentioned.

 

There is no financial loss. But my request for documents for marriage certificate, passport, etc was replied with threatenings of false complaint of domestic violence. This threatenings instigated me to investigate on my own.

 

So now is this not a anything serious ? Should there be only financial losses ? Isnt their deceptive mind disclosed here ?

 

Mr/Ms/Mrs R Trivedi, you saying the email ID needs to be proved ? The same email, in which we had chated before marriage and the same email which has sent an acceptance of above to me ?

 

Regards,

Hussein.

R.SHAH (OFFICE STAFF)     06 May 2014

hi pls refer this judgemnt, Bombay High Court Bombay High Court Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009 Bench: V.C. Daga, Mridula Bhatkar :1: bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3739 OF 2008 Devendra Gurunath Khedgikar Age 23 yrs., Occu : Service, R/o..Akshay Society, Plot No.23, S.No.328/1B, Mhada, Jule Solpaur, Solapur - 413 004 ..Petitioner Vs. 1. The Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune. 2. The State of Maharashtra ..Respondents WITH WRIT PETITION NO.4840 OF 2008 1. Sidram Sayabanna Khedgikar Age 54 yrs., Occu : Service, Residing at 157, Vishal Nagar, Jule Solpaur, Vijapur Road, Solapur - 413 004 2. Vishal Sidram Khedgikar Age Adult, Occu : Service, Residing at 157, Vishal Nagar, Jule Solpaur, Vijapur Road, Solapur - 413 004 3. Vinayak Sidram Khedgikar Age Adult, Occu : Education, Residing at 157, Vishal Nagar, Jule Solpaur, Vijapur Road, Solapur - 413 004. ..Petitioners Vs. 1. The State of Maharashtra Through the Secretary to Government, Tribal Development Department, Mantralaya, Mumbai - 32. 2. The Deputy Director (R) and Member Secretary, Committee For Scrutiny and Verification of Tribal Claims, Pune Division 28, Queens Garden, Pune. ..Respondents :2: Mr.Y.S.Jahagirdar, Senior Advocate with Mr.Sarang Aradhye and Mr.A.B.Avhad for petitioners. Mr.V.A.Gangal, Special Counsel with Mr.S.S.Deshmukh for respondents. AND WRIT PETITION NO.4094 OF 2008 Miss.Jagdevi Gurunath Khedgikar Age 21 yrs., Occu : Student, R/o..Akshay Society, Plot No.23, S.No.328/1B, Mhada, Jule Solpaur, Solapur - 413 004 ..Petitioner Vs. 1. The Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune. 2. The State of Maharashtra ..Respondents WITH WRIT PETITION NO.4095 OF 2008 Vijaykumar Gurunath Khedgikar Age 26 yrs., Occu : Service, R/o..Akshay Society, Plot No.23, S.No.328/1B, Mhada, Jule Solpaur, Solapur - 413 004 ..Petitioner Vs. 1. The Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune. 2. The State of Maharashtra ..Respondents Mr.A.B.Avhad with Ms.Rachita Dhuru for petitioners. Mr.V.A.Gangal, Special Counsel with Mr.S.S.Deshmukh for respodents. CORAM :- V.C.DAGA & Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009 Indian Kanoon - https://indiankanoon.org/doc/140546/ 1MRS.MRIDULA BHATKAR,JJ. DATE : 12TH FEBRUARY,2009 JUDGMENT ( PER : V.C.DAGA,J.) 1. Perused petition. Rule returnable forthwith. Learned counsel for respondents waives service. Heard finally by consent of parties. :3: 2. The Petition, filed under Article 226 of the Constitution of India, is directed against the order dated 25th April, 2008 passed by the Schedule Tribe Certificate Scrutiny Committee, Pune Region, Pune, prima facie; finding that the caste certificate was obtained by practicing misrepresentation and concealing true and material facts amounting to fraud on the authority issuing certificate and calling upon the petitioner to submit his explanation within 15 days as to why the certificate validating his tribe claim should not be cancelled and confiscated. 3. Parties are different but the issue is identical, so a single judgment will dispose of all these writ petitions. 4. For the sake of convenience facts are drawn from Writ Petition No.3739 of 200. FACTUAL BACKGROUND : 5. The factual background leading to the petition is that the Petitioner intended to take admission for the course in Bachelor of Engineering in the year 2002 against the seat reserved for scheduled tribe category candidates. :4: 6. The petitioner claiming to be scheduled tribe belonging to Mahadev Koli tribe, applied for issuance of tribe certificate and submitted it to the respondent No.1 for its scrutiny. The respondent No.1, the Enquiry Committee validated the tribe claim of the petitioner on 10th June,2005 and certified that the petitioner is scheduled tribe being "Mahadev Koli". Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009 Indian Kanoon - https://indiankanoon.org/doc/140546/ 27. On the basis of the aforesaid certificate, petitioner's sister and another brother also applied for certificate of validity on 15th June,2005. Their cases were referred to the Vigilance Cell. The Vigilance Cell, during the course of enquiry found that one Mr.Vishal Sidram Khedgikar had obtained tribe certificate by playing fraud on the committee which was the basis of the order in the case of the petitioner and the alleged fraud was not noticed by them while relying upon that certificate in the enquiry when the tribe claim of the petitioner was enquired into. 8. The Scrutiny Committee, prima facie; finding case of misrepresentation amounting to fraud on the committee passed an order communicating the present petitioner that the Scrutiny Committee was misled while obtaining tribe claim validity certificate and called upon the petitioner to show cause as to why his certificate should not be cancelled. This order is :5: the subject matter of challenge in this petition filed under Article 226 of the Constitution of India. SUBMISSIONS : 9. Mr.Jahagirdar learned Senior Counsel appearing for petitioner submits that respondent No.1 Scrutiny Committee has no power to review its own order being quasi judicial authority not bestowed with the power of review in the statute. In other words, no such power of review exists in the statute as such the impugned order and show cause notice seeking to review earlier order dated 10th June, 2005 is bad in law and liable to be quashed and set aside. 10. Mr.Jahagirdar, further submits that the tenor of the impugned order dated 25th April,2008 would unequivocally goes to show that respondent No.1 Scrutiny Committee has already formed its opinion that the validity of certificate has been obtained by practicing fraud on the Committee by the petitioner, as such no useful purpose would be served by answering show cause notice. In his submission, show cause notice is in breach of principles of natural justice since the subject issue has already been prejudged by the Committee. 11. Per contra, Mr.V.A.Gangal, Special Counsel :6: appearing for respondents urged that in the event the validity of certificate is found to be obtained by fraudulent means and concealment of true facts, then Scrutiny Committee certainly has power and jurisdiction to set at nought the said certificate. He further submits that said exercise of power cannot be termed as exercise of power of review. In his submission, fraud vitiates every thing including judicial or quasi judicial order. He further submits that it is no doubt true that the impugned order calling upon the petitioner to show cause is not very happily worded, as it gives an indication of prejudging the issue. He, thus, submits that the said order be treated as a prima facie; opinion of the committee and show cause notice to the petitioner and Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009 Indian Kanoon - https://indiankanoon.org/doc/140546/ 3further enquiry be ordered by any other independent Scrutiny Committee other than the Committee issuing notice. He, thus, submits that the petition can be conveniently worked out on the line of submissions made by him. 12. In rejoinder, Mr.Jahagirdar urged that this Court should clarify the extent of the power to be exercised by the Scrutiny Committee and that the matter should be allowed to be adjudicated by an independent Scrutiny Committee on its own merits leaving the remedies of the rival parties open. :7: CONSIDERATION : 13. Having heard rival contentions, it is beyond doubt and now well established that the quasi judicial authority cannot review its own order unless the power of review is expressly conferred by the Statute under which it drives its power. The power of review is not an inherent power. It must be conferred by law either specifically or by necessary implications. No such provision, in fact, is brought to our notice, from which it can be gathered that the Scrutiny Committee has power to review its own order. (See The District Collector of Hyderabad and Ors. Vs. M/s.Ibrahim and Co. AIR 1970 SC 1275 Para-4 and Dr.Smt.Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur AIR 1987 SC 2186). In view of the law laid down by the Apex Court, we accept the contention of Mr.Jahagirdar that the Scrutiny Committee has no power to review its own order. 14. The question whether the impugned order is correct or valid in law does not arise for consideration in the present petition so long as the order granting the certificate is not set aside or declared void by the competent authority. 15. Having said so, one thing is absolutely clear in law that the law does not protect either of the parties whose actions are tainted by fraud. Any :8: person obtaining validity certificate must satisfy that he has strictly complied with the provisions of law and approached respondent No.1 Scrutiny Committee with clean hands disclosing all his cards without suppressing material facts. 16. The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. A person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009 Indian Kanoon - https://indiankanoon.org/doc/140546/ 4or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. . A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he :9: withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. (See S.P.Chengalvaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. and others (1994) 1 SCC (Para 5 & 6). 6) 17. The fraud is, essentially a question of fact, the burden of proof is upon him who alleges it. He who alleges fraud, must do so promptly. There is presumption of legality in favour of statutory order. The order of respondent No.1 Scrutiny Committee validating the tribe claim of the petitioner is presumed to be valid unless proved to be vitiated by misrepresentation or fraud. 18. If the order was obtained by fraud or misrepresentation by the party seeking it and if that comes to the notice of the judicial or quasi judicial authority and if such authority prima facie; forms an opinion that the process was abused then such order can always be interfered with and set at nought by the same authority exercising the very same power under which the original order was passed. This power is always retained by the authority or Court passing the order. 19. On the above canvass, it is clear that respondent No.1 while deciding the issue as to whether :10: the certificate was obtained by misrepresentation or fraud will confine itself to the issue of misrepresentation and fraud alone and shall not review its order based on new material. Formation of an second opinion on the same material is not permissible. On merits, the order cannot be interfered with because that would amount to exercising power of review. 20. The order can only be interfered with and set at nought if respondent No.1 comes to the conclusion that the certificate was obtained by misrepresentation and/or fraud and/or in collusion with some other person or on the basis of the forged documents. The respondent No.1 shall bear in mind the above distinction between the power of review and exercise of the power to set aside the certificate obtained by Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009 Indian Kanoon - https://indiankanoon.org/doc/140546/ 5praying falsehood and/or fraud. 21. Taking over all view of the matter, looking to the consensus between the parties to the petition, the impugned order dated 25th April, 2008 shall be treated as a prima facie; formation of opinion by the Scrutiny Committee, a basis for issuing a show cause notice to the petitioner, which the petitioner shall reply within 30 days from today and that the matter should be heard and decided by the Committee other than respondent No.1 Scrutiny Committee meant for Pune Region. As suggested by Mr.V.A.Gangal, Special :11: Counsel the show cause notice shall be adjudicated upon by the Scrutiny Committee meant for Nashik Region, Nashik having its office at Nashik without getting influenced by either of the orders, referred to hereinabove. 22. Needless to mention that after receipt of the reply to the show cause notice, the Committee shall adjudicate upon the show cause notice by a reasoned order following principles of natural justice within eight weeks thereafter. All rival contentions on merits are kept open. 23. Rule in all these petitions is made absolute in terms of this order. No order as to costs. (MRIDULA BHATKAR,J.) (V.C.DAGA,J.) Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009

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