Dhananjay And 6 Ors vs State Of U.P. And Another
2016 Latest Caselaw 5970 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Case :- APPLICATION U/S 482 No. - 20296 of 2014
 
Applicant :- Awadh Behari And 2 Ors
 
Opposite Party :- State Of U.P. and another
 
Counsel for Applicant :- Manish Tiwary, Ashwini Kumar Awasthi
 
Counsel for Opposite Party :- Govt. Advocate, Rajeev Giri
 
		Connected with
 
Case :- APPLICATION U/S 482 No. - 20297 of 2014
 

 
Applicant :- Dhananjay And 6 Ors
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi
 
Counsel for Opposite Party :- Govt. Advocate,Rajeev Giri
 
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Hon'ble Mrs. Vijay Lakshmi,J.

As both these applications, arising out of the Case No. 955 of 2013, are related to the same occurrence and complainant is also the same, both are being disposed of by this common order.

Heard Sri Manish Tiwary, learned counsel for the applicants, learned A.G.A. appearing for the State and Sri Rajendra Pandey holding brief of Sri Rajeev Giri on behalf of opposite party no. 2. Perused the record.

By means of both these applications, all the applicants, who are close relatives, they being real brothers and nephews, have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. with prayer to quash the entire proceedings of Complaint Case No. 955 of 2013 (Hrishikesh Tripathi Vs. Krishna Bihari and others) under Sections 420, 467, 468 and 471 I.P.C., Police Station Nawabganj, district Allahabad pending in the court of Chief Judicial Magistrate, Court No. 10, Allahabad.

Some background facts, in brief, are that the applicants were six brothers in all, namely (i) Late Keshav Bihari, (ii) Late Mukund Bihari, (iii) Late Shyam Bihari, (iv) Krishna Bihari, (v) Awadh Bihari and (vi) Janardan Prasad. Opposite party no. 2 is the elder son of Late Keshav Bihari, the eldest brother. An application under Section 156(3) Cr.P.C. was filed by opposite party no. 2 against the applicants with allegations that the accused/applicants were continuously harassing him and his family members in order to deprive them of their share in the ancestral property. In the year 1985, they had made an attempt to kill the applicant by firing on him, for which a case under Section 307 and 337 of I.P.C. was registered against them as Case Crime No. 248 of 1985. It was further alleged that the grandfather and grandmother of opposite party no. 2 Late Shambhu Nath Tiwari and Ganga Devi, had agricultural land in their names in the village Nigdilpur, Pargana Nawabganj, Tehsil Soraon, district Allahabad. After their death, the father of opposite party no. 2/complainant, moved application before the Assistant Consolidation Officer, Kaurihar, district Allahabad for recording the names of the six sons of late Shambhu Nath Tiwari and Late Ganga Devi, as their their legal heirs in the revenue records. However, the applicant Awadh Behari prepared and fabricated a Will of Late Shambhu Nath and Ganga Devi and on the basis of that forged Will, he filed an objection before Assistant Consolidation Officer, Kaurihar and also gave a fresh application, stating therein that he is the sole survivor/legal heir of deceased Shambhu Nath Tiwari and Ganga Devi, therefore, only his name be recorded in the revenue records, over the properties of his deceased parents. Thereafter, the applicant Janardan Prasad moved another application before Assistant Consolidation Officer, Kaurihar, for recording the names of only five sons of deceased Shambhu Nath Tiwari and Late Ganga Devi, namely Awadh Behari, Krishna Behari, Janardan Prasad, Mukund Behari and Shyam Behari on the basis of a forged and fabricated Will deed, of deceased Shambhu Nath and Ganga Devi.

On receiving such application the Assistant Consolidation Officer, Kaurihar, issued notices to the contesting parties for settlement of dispute with regard to the controversy of legal heirs of deceased Shambhu Nath and Ganga Devi but neither the dispute was amicably settled nor any order can be passed by the Consolidation Officer on the application moved by the applicants due to reason that no copy of the Will was filed by the applicants alongwith the application. The matter was pending before the Consolidation Officer, when the eldest brother Keshav Behari, father of opposite party no. 2, expired on 9.10.1992. Thereafter the complainant/opposite party no. 2, contested the matter till July, 2010 and ultimately in the year 2013 the names of legal heirs of Keshav Behari (father of opposite party no. 2) could be recorded in revenue records alongwith other co-sharers. It was further alleged that even after the mutation, the applicants did not permit the opposite party no. 2 to enter into his share of property and to take its possession. On the aforesaid grounds the applicant (opposite party no. 2) prayed that FIR be registered against the accused persons and the police be directed to investigate the matter.

On the aforesaid application the court below directed the S.H.O., P.S. Nawabganj, to conduct preliminary enquiry and send a report. The S.H.O. sent report on 24.7.2013 to the effect that the alleged Will was forged as it was prepared after the death of Shambhu Nath and Ganga Devi.

The learned Magistrate considering the facts and circumstances of the case, registered the application as a Complaint Case No. 955 of 2013. The statements of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C. were recorded and on the basis of those statements and the documentary evidence filed by the complainant, the learned Magistrate found a prima facie case against the applicants Krishna Behari, Awadh Behari and Janardan Prasad under Section 420, 467 and 471 I.P.C. and against the applicants Dhananjay, Mritunjay, Vipin Behari, Pradhumn, Pranat, Prasant and Prateyesh alias Priyavrat under Section 447 and 448 I.P.C. Accordingly all of them were summoned.

Being aggrieved by their summoning, the applicants have approached this Court with prayer to quash the aforesaid summoning order and the entire proceedings of the aforesaid case.

In the affidavit filed in support of the application, it has been stated that all the allegations made by the complainant are baseless, absolutely vague and frivolous. It is further submitted that the reference of criminal case under Section 307 I.P.C. has no relevance and that has been mentioned in the application under Section 156(3) Cr.P.C. by the complainant only with a view to prejudice the mind of the court. In fact the aforesaid criminal case has absolutely no bearing to the facts of the present case. Moreover, that case has resulted into acquittal vide judgment dated 30.3.1998.

The applicants have further contended that due to nefarious and illegal activities of Sri Keshav Behari and for the reason that he had falsely implicated his own brothers in the aforesaid criminal case under Section 307 I.P.C., he was not given any share in the property by late Shambhu Nath who executed his Will excluding the name of Keshav Bihari. However, despite the fact that the father of the applicants had specifically intended that any share in the property be not given to Keshav Behari or any of his descendants, the applicants believing in the policy of 'forgive and forget', included the names of opposite party no. 2, his brother and his mother in revenue records and vide order dated 30.7.2011 the names of opposite party no. 2, his brother Gunakesh Tripathi and also of their mother Indrawati Devi, were recorded in the Khatauni.

Learned counsel for the applicants has further contended that the crux of the case of opposite party no. 2 is that the applicants on the basis of a false and fictitious Will got transferred the property in their names but it is admitted position that now the names of all the legal heirs of Late Shambhu Nath and Ganga Devi including opposite party no. 2, his brother and their mother, have also been recorded in the revenue records. Learned counsel has next contended that as the alleged Will was not available on record before the learned Magistrate, therefore, the learned Magistrate, without perusing that Will could not have summoned the applicants and summoning of the applicants on the basis of forged document, which is not even available on record, is absolutely illegal. Learned counsel has lastly contended that the opposite party no. 2, if aggrieved by exclusion of his name, had an efficacious alternative civil remedy of filing a suit, challenging the legality of the Will, but instead of pursuing the civil remedy, he has initiated the present case against the applicants only with malafide intention to extract the money from the applicants.

On the basis of the aforesaid grounds it has been prayed that the impugned summoning order and entire proceedings be quashed.

Learned counsel for opposite party no. 2 Rajendra Pandey and learned A.G.A. have vehemently opposed the applications by contending that the applicants, with a view to grab the share of their elder brother Keshav Bihari, fabricated and forged a Will, with dishonest intention and in pursuance thereof, they moved applications before the Consolidation Officer to record their names in the revenue records as legal heirs of Late Shambhu Nath and Ganga Devi, thereby depriving the opposite party no. 2 from his share in the joint family ancestral property. While drawing the attention of this Court to the copies of various applications filed by the applicants before the revenue courts, which are available on record as annexure nos. C.A. 4, 5 and 6 filed with counter affidavit, learned counsel has vehemently argued that the applicants have not come to the court with clean hands and their applications are liable to be rejected on this ground alone. Learned counsel has submitted that the contents of paragraphs 12 and 13 of the affidavit filed by the applicants are in total contradiction with the objection filed by the applicant Awadh Behari before the Revenue Officer, copy whereof has been annexed as annexure no. C.A. 4 to the counter affidavit. Learned counsel has further submitted that the opposite party no. 2 has got his share after a long legal battle since 1988 to 2013. It is lastly submitted that civil and criminal proceedings can go on simultaneously and there is no bar that if a civil suit is pending, criminal proceedings can not be initiated.

Considered the rival submissions advanced by the parties.

A careful perusal of the affidavits filed by the parties, clearly shows, that the applicants have not come to the court with clean hands. Annexure C.A. 4, which is the copy of the objection filed by the applicant Awadh Behari before the Consolidation Officer shows that the applicant Awadh Behari has questioned the parentage of opposite party no. 2 by stating that grandfather of opposite party no. 2 was Shambhu Nath Goswami whereas his father was named as Shambhu Nath Tiwari. He has stated that both of them were two different persons and opposite party no. 2 is the grandson of Shambhu Nath Goswami and not of Shambhu Nath Tiwari and he is only trying to take the advantage of similarity in their names. However, the contents of paragraph nos. 12 and 13 of the affidavit filed by Awadh Behari in the instant Application (No. 26296 of 2014), shows that he has clearly mentioned that the father of the applicants namely Late Sri Shambhu Nath Tiwari had 6 sons and out of which Keshav Behari was the eldest.

The contention raised by the applicants that in absence of the alleged Will, the Magistrate could not have summoned the applicants, also appears to be baseless. The primary report dated 29.3.1990 of Assistant Consolidation Officer, copy whereof is annexed as C.A. 7 to the counter affidavit, shows that no Will deed was filed by the applicants before the Consolidation Officer. Thus in absence of any Will which should have been filed by the applicants, how could the opposite party no. 2/complainant be asked to prove it, before the criminal court ? A perusal of various applications moved by the applicants before the Consolidation Officer, the copies whereof are annexed as C.A. 5 and 6 clearly shows that in all these applications they have stated that their mother, who expired on 26.11.1988, had executed a Will in their favour on 2.9.1986, so their names be recorded in the revenue records in place of name of Ganga Devi. But they have not filed any Will deed executed by Ganga Devi in support of their claim.

It is the basic principle of law that "one who asserts must prove" or the "plaintiff must stand on his legs". If the applicants were claiming their right in the ancestral property, in exclusion of O.P. No. 2 on the basis of a Will, it was mandatory for them to produce that Will, before the competent court. But instead of producing the Will before the court concerned, they have approached this Court challenging the legality of the proceedings of complaint case, on the ground that opposite party no. 2 has not produced the alleged Will, he is claiming to be forged. This contention raised by the applicants is not only against the settled principles of law but appears to be ridiculous.

The conduct of the applicants clearly shows that they tried their level best to record their names on the basis of a Will, which perhaps, even did not exist, otherwise it would have been filed before the Consolidation Officer. Therefore only due to the fact that the applicants did not succeed in their evil designs or they gave the share to the opposite party no. 2, after a long legal battle since 1988 to 2013, it cannot be said that no offence was committed by them.

Section 420 of I.P.C. provides punishment for cheating. The "Cheating" is defined under Section 415 of I.P.C. which runs as follows :

415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to 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". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.

Thus, the essential ingredients of cheating are :

Ingredients.- The section requires -

(1) Deception of any person.

(2) (a) Fraudulently or dishonestly inducing that person

(i) to deliver any property to any person; or

(ii) to consent that any person shall retain any property; or

(b) intentionally inducing that person 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.

In a recent case A.R.C.I. Vs. Nimra Carglass Technics (P) Ltd. (2016) 1 SCC 348 the Hon'ble Apex Court has interpreted Section 420 I.P.C. as under :

"The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant."

Now looking into the facts of the instant case, in wake of the aforesaid definition of "cheating", it cannot be said that there was no false representation or dishonest inducement on the part of the applicants. The fraudulent intention of the applicants is clearly evident from the various applications moved by them to the revenue authorities so that the property be recorded in their names, thus depriving the opposite party no. 2/complainant of his rightful share.

So far as the argument of learned counsel for the applicants with regard to civil nature of the offence is concerned, the law has been well settled in a catena of judgments by Hon'ble Supreme Court that both civil and criminal litigation can proceed simultaneously. In the present case, admittedly no civil suit is pending between the parties.

In Kishan Singh (D) through I.Rs. Vs. Gurpal Singh and others; AIR 2010 SC 3624, the Hon'ble Supreme Court relying on the law laiddown in P. Swaroopa Rani v. M. Hari Narayana alias Hari Babu; AIR 2008 SC 1884 this Court has held as under :

"It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.... Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute.... It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case is permissible."

In Sh. Vishnu Dutt Sharma Vs. Smt. Daya Sapra; (2009)13SCC 729 the Apex Court has held that :

"13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case."

Considering all these facts and circumstances, both these applications appear to be without any merit, both are liable to be dismissed and are accordingly dismissed.

However, considering the fact that the applicants have given the share of opposite party no. 2 to him, it is directed that in case the applicants appear before the court concerned within thirty days from today and apply for bail, the same shall be heard and disposed of expeditiously by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P., 2005 Cr.L.J. 755 and affirmed by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

For the aforesaid period of 30 days no coercive action shall be taken against the applicants.

Dated : September 20, 2016.

S.B.