Smt. Achala Dhawan & Others vs State Of U.P. & Another
2017 Latest Caselaw 885 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                       RESERVED                                                            
 
Court No. - 22
 

 
Case :- APPLICATION U/S 482 No. - 17207 of 2006
 

 
Applicant :- Smt. Achala Dhawan & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Saurabh Gour,A.B.L. Gour,Dileep Kumar,Dinesh Tiwari,S.B. Singh
 
Counsel for Opposite Party :- Govt. Advocate,D.B. Mishra,H.C. Mishra,Raj Kumar Khanna
 

 
Hon'ble Amar Singh Chauhan,J.

Heard Sri Dileep Kumar, learned counsel for the applicants, learned AGA for the State and Sri Raj Kumar Khanna, learned counsel appearing for the informant.

The applicant, Smt. Achala Dhawan and three others, through this application under section 482 Cr.P.C. have invoked the inherent jurisdiction of the Court with a prayer to quash the impugned order dated 29.11.2006, passed by learned Additional Chief Judicial Magistrate, Court No. 1, Meerut in Case No. 8479 of 2006 (Ashima vs. Achala Dhawan and others) arising out of Case Crime No. 107 of 2005 under sections 420, 467, 468, 471 IPC, Police Station Civil Lines, District Meerut by which the learned Magistrate rejected the final report and after accepting the protest petition, issued the process to summon the accused-applicants and further prayed to stay the aforesaid proceeding against the applicants.

Brief facts which are requisite to be stated for adjudication of this application are that the first informant Smt. Ashima Sikka (opposite party no. 2) lodged the First Information Report to the effect that she is a resident of Meerut and her father Anil Dhawan was an Income Tax Adviser. Anil Dhawan had died on 23.12.2004 and before his death, he executed a Will on 28.8.2003 in which Devendra Kumar and Surendra Singh were witnesses. By this Will, Anil Dhawan had given his half share to informant and other half to Rachita (unmarried sister of informant) of all his assets, which included his movable and immovable property. During the life time of Anil Dhawan, his relations were not good with his wife Smt. Achala and his brother-in-law Pradeep Kapoor. Anil Dhawan had danger to his life from these persons and in this regard, he had also made complaint to Senior Officer, which includes D.I.G. Due to the aforesaid Will dated 28.8.2003, which late Anil Dhawan had executed in favour of informant and her unmarried sister, Smt. Achala Dhawan and her unmarried sister of informant, Rachita were annoyed and they wanted to grab the property and ousted the informant. In this regard, they used to give threats to her. The informant filed a Suit No. 132 of 2005 before the Civil Judge (Senior Division) Meerut in which Smt. Achala Dhawan and Rachita were opposite parties. In this suit, an interim injunction was issued to the effect that applicants will not interfere in the peaceful possession of informant, over the land in dispute. In the aforesaid Will which got registered, Anil Dhawan had mentioned that this is his last Will. It has further been alleged that the accused persons Achala Dhawan and Rachita Dhawan in collusion with Pradeep Kapoor and Rakesh Dhawan, got another unregistered Will, prepared of late Anil Dhawan and also got forged signatures of Anil Dhawan on the same. The said forged Will was prepared by Smt. Achala Dhawan, mother of informant. It has also been alleged that knowingly that this Will is forged, they are using it in Suit No. 132 of 2005 whereas no Will was executed by Anil Dhawan on 22.12.2006. The matter was investigated and final report was submitted on the ground that the matter is concerning the civil litigation and the alleged Will executed by late Anil Dhawan is sub-judice. The final report was submitted on 21.12.2005. Against submission of final report, a protest petition was filed by Aashima Sikka. The learned Magistrate rejected final report and summoned the applicants on 22.12.2006 which is under challenge in this application.

Submission of learned counsel for the applicants is that there is a dispute in respect to Will executed by late Anil Dhawan, father of informant, in her favour and in favour of her unmarried sister Rachita. In this Will half of the immovable and movable property has been given to informant. The subsequent Will has been executed on 22.12.2004, is alleged to be forged. Howsoever, applicant no. 2 Rachita is holder of half of the share in the Will dated 28.8.2003 as well as in the subsequent Will dated 22.12.2004. The subsequent Will has been executed in favour of Smt. Achala Dhawan, wife of Late Anil Dhawan and now this dispute is in respect to both the Will. The informant Aashima Sikka filed a Suit No. 132 of 2004 (Smt. Aashima Sikka vs. Achala Dhawan) before the Upper Civil Judge, Court No. 4, Meerut. Against the lodging of FIR a Writ Petition No. 5149 of 2005 (Smt. Achala Dhawan vs. State of U.P. and others) was filed before this Hon'ble Court and a Bench consisting of Hon'ble Justice S.S. Kulshrestha and Hon'ble Justice K.N. Ojha were pleased to stay arrest of applicants. The learned Magistrate has failed to consider and appreciate while rejecting the final report that so far as applicant no. 2 Rachita is concerned, she is unmarried sister of the informant and in her favour informant has admitted that half of the share in movable and immovable property has been given to her in the first Will executed by late Anil Dhawan and she is not beneficiary of the second Will, therefore, the impugned order is liable to be quashed.

Further submission of learned counsel is that the main controversy is whether the Will executed in favour of applicants is genuine or forged. The matter is sub-judice in Suit No. 132 of 2005 (Smt. Aashima Sikka vs. Achala Dhawan) in which the civil court will decide whether the Will executed on 22.12.2004 is genuine or not and, therefore, the impugned order is illegal and perverse. Learned Magistrate has not considered that the applicant Rachita is unmarried and is living with her widow mother. She is entitled for more share in the immovable and moveable property than the married daughter, who is living happily with her husband and, therefore, the order is illegal and perverse.

Per contra learned counsel for the opposite party no. 2 contends that the complainant, Smt. Aashima Sikka has lodged FIR on 28.4.2005. Investigating Officer has submitted final report on 21.12.2005 ignoring the material evidence available on record like Handwriting Expert. Report only on the ground that Original Suit No. 132 of 2005 is pending between the parties. The aforesaid Original Suit No. 132 of 2005 has been withdrawn on 05.2.2010. Another Original Suit No. 152 of 2005 has also been withdrawn on 5.2.2010. Original Suit No. 389 of 2010 is also pending having no interim order. Mere pendency of civil suit since 2010, the criminal prosecution pending since 2005 may not be quashed only on the ground of the pendency of civil suit. Nothing on record that prosecution filed with malafide motive against the accused persons. Nothing is illegality in the impugned order dated 29.11.2006 challenged in the present application under section 482 Cr.P.C. The aforesaid order dated 29.11.2006 passed by learned Magistrate is a very detailed order giving the reference of all police papers, which were not considered by the Investigating Officer at the filing of final report. The learned Magistrate has no other option to take cognizance under section 190(1)(B) Cr.P.C. on the police report submitted under section 173 sub clause(2) Cr.P.C. This is neither a matter of higher purchase litigation nor a case relating to Arbitration and this is also not a case of under section 145 Cr.P.C. This is a clear case of fraud committed by the accused persons by making a forged unregistered Will dated 22.12.2004, prior one day of the death of husband of applicant no. 1. The Investigating Officer himself sent a signature of Anil Dhawan (deceased), mentioned on the unregistered Will, to the handwriting expert. Handwriting Expert submitted its report on 06.9.2005 to the Investigating Officer. In the aforesaid report, Handwriting Expert opined that the signature on the unregistered forged Will not belong to Anil Dhawan (deceased).

Learned counsel for the opposite party no. 2 relied on Iridium India Telecom Limited vs. Motorola Incorporated and others, (2011) 1 SCC 74 wherein Hon'ble Apex Court held that the power to be exercised sparingly and only when prosecution is launched maliciously or with ulterior motive. Inherent power ought not be exercised to stifle legitimate prosecution. Criminal complaint filed against respondent Company on the ground that appellant Company was dishonestly induced to make investment in a subsidiary company floated by respondent Company thereby respondent Company committed offence of cheating. Complaint filed by appellant Company prima facie disclosing offence of cheating when allegations made in complaint taken on their face value. Both the parties had much to say in support of their respective cases. The case was of considerable importance not only to parties but also world of trade and commerce. There was nothing on record that complaint was filed with any mala fide motive. High Court quashed criminal proceedings at stage when trial court ordered issue of process. High Court exceeded its jurisdiction in quashing the proceedings. Prosecution proceedings therefore allowed to continue.

Before adverting the claim of the parties, it is necessary to reproduce the section 190 Cr.P.C. which is quoted hereinbelow:-

"190. Cognizance of offences by Magistrate. - (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially, empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."

This Court in case of Pakhandu vs. State of Uttar Pradesh, 2001 Law Suit (All) 620 held that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:

(i) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;

(ii) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(iii) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(iv) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:

"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".

In the case in hand, the Investigating Officer clearly mentions that photostat of the Will in question was sent for getting finger print expert report by Investigating Officer from a private expert whereas it is desirable for the I.O. expert report must be sought from Central Forensic Science Laboratory i.e. from the Government Expert. The I.O. submitted the final report on the ground that civil litigation is pending and Will in question is also basis of suit in that suit but the Magistrate rejected the final report and on the basis of the private expert report took cognizance and process were issued against the applicants to face trial. It is also admitted fact that original copies of the two Wills dated 28.8.2003 and 22.12.2004 have been filed in the civil proceeding before the court concerned and the I.O. submitted the final report by making observation that genuineness of the document finally be adjudicated by the competent court as both the documents are lying in the record of Original Suit No. 132 of 2005. Therefore, it is not possible to form any opinion without getting adjudication from the competent civil court regarding the genuineness of the Will in question. It is settled principle of law that till the adjudication by competent civil court, the issue about the genuineness of the Will cannot be dragged in the criminal side by launching criminal proceeding.

The Hon'ble Apex Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another, (2009) 8 SCC 751 held that "this Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes."

The Hon'ble Apex Court in case of Sardul Singh vs. Nasib Kaur, 1987 Law Suit (SC) 155 has held that "a civil suit between the parties is pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellants is that a Will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the Will. The matter is sub-judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High court, and quash the criminal proceedings pending in the court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt. Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts."

In the instant case, the matter is sub-judice in the civil court regarding the genuineness of the disputed Will, therefore, to institute a criminal prosecution on the allegation that the Will is forged one will be abuse of the process of the law.

The cognizance order, after setting aside the final report, is not justified one. Therefore, the application is allowed and the proceeding of Case No. 8479 of 2006 (Ashima vs. Achala Dhawan and others) arising out of Case Crime No. 107 of 2005 under sections 420, 467, 468, 471 IPC, Police Station Civil Lines, District Meerut is hereby quashed.

Order Date :- 19.5.2017

Puspendra