Andhra Pradesh High Court - Amravati

K.Lochana Sai Theja vs The State Of Andhra Pradesh, on 12 April, 2023

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

        CRIMINAL PETITION NO.3013 OF 2022

ORDER:-

     This Criminal Petition, under Section 482 Cr.P.C.,

is filed to quash the proceedings in C.C.No.416 of 2021

on the file of the IV Additional Judicial Magistrate of

First Class, Chittoor. Petitioners herein are arrayed as

A.1 to A.3 in the said case.


2.   A charge sheet has been filed as against the

petitioners and others for the offences punishable under

Sections 193, 467, 471, 120B, 109, 506 read with 34 IPC

in crime No.51 of 2019 of Chittoor II Town police station.

The allegations, in brief, are stated as follows.

     2nd respondent and A.2 are brothers. Their father

late K.Kodandaramaiah Chetty derived property from his

sister Smt.Bhagyamma through a Will dated 17.11.1959

and registered on 22.02.1960. He has five sons viz. 2nd

respondent, L.W.2-K.Payanivelu Chetty and A.2 and two

others Eswaraiah and K.Krishnamurthy, who died, and

three daughters K.Prabhavathi, K.Rajakumari and

K.Jhansi. He died in testate in 1968 and thereafter his

wife Smt. Manikyamma became head of the family. All

the three sisters executed registered relinquishment

deeds accepting monetary considerations, relinquishing

their rights over the joint family properties permanently.

A.2 cheated their mother and obtained a registered

gift settlement deed dated 31.05.1996 in respect of

Ac.0.50 cents of land from the undivided joint land in a

fraudulent manner and another registered exchange

deed for Ac.0.36 cents out of Ac.3.40 cents in the year

1996. On coming to know about the same, their mother

cancelled the gift settlement and the exchange deed

through registered documents in the year 1997. Their

mother died in the year 2004 without writing any will.

Thereafter, A.2 filed partition suit in Original Suit No.951

of 2005 on the file of the II Additional Junior Civil Judge,

Chittoor claiming an extent of Ac.0.50 cents under the

gift settlement deed and Ac.0.36 cents under the

exchange deed and his share from the remaining extent

of Ac.2.54 cents, and after full fledged trial, the partition

suit filed by A.2 was dismissed on 15.02.2013 and the

registered gift settlement deed and exchange deed were

declared as „null and void‟ and a decree was passed for

equal division of Ac.3.40 cents among all the brothers.

Appeals in A.S.Nos.117 of 2015 and 125 of 2015 on the

file of the VIII Additional District Judge, Chittoor were

dismissed on 19.09.2016, and the Second Appeals

preferred by A.2 vide S.A. Nos. 818 of 2016 and 819 of

2016 were also dismissed by this court on 22.01.2018.

Thereafter, A.2 along with his son A.1 and wife A.3

and A.4 and A.5 hatched a plan to knock away the

extent of Ac.0.56 cents from the ancestral property and

prepared an unregistered will dated 14.02.2003 allegedly

executed by their mother Manikyamma, A.2 forged her

signature in the presence of A.4 and A.5 and cited them

as witnesses, as if she gave her share to A.1, and filed

the forged document in O.S.No.330 of 2018 on the file of

the Additional Senior Civil Judge, Chittoor as genuine.

Final decree proceedings are pending in the aforesaid

suit O.S.No.951 of 2005 and A.2 created the forged

unregistered will dated 14.02.2003 with an intention to

gain more share and to prevent passing of final decree.

During pendency of O.S.No.330 of 2018, 2nd

respondent received copy of forged unregistered will

dated 14.02.2003 from the Court through certified copy.

After sending the same to Truth Foundation Forensic

Science Laboratory, Chennai and obtaining opinion of

the expert, the present complaint came to be lodged.

3. Learned counsel for the petitioners contended that

the accusation is that the subject document viz.

unregistered will dated 14.02.2003 produced in the final

decree proceedings in I.A.No.513 of 2019 in O.S.No.915

of 2005 on the file of the II Additional Junior Civil Judge,

Chittoor, has been forged, and the authenticity of the

document is an issue to be considered by the competent

civil court, and hence, continuation of further impugned

proceedings would prejudice rights of the petitioners in

setting out their case in civil court. In support of his

contention, he relied on the following decisions.

(a) In Rajeshbhai Muljibhai Patel & others v. State of

Gujarat and another1; (paragraphs 20 and 23)

(b) In M.Nagasanjeva Reddy v. State of A.P.2

(paragraph 13).

Relying upon the aforesaid judgments, he contends

that when once a document is the subject matter of civil

litigation and the civil court seized of the validity of the

said document, criminal proceedings cannot be

permitted to go on, while the validity of the document is

pending adjudication before the civil court.

4. On the other hand, learned counsel for 2nd

respondent/defacto complainant contended that a

perusal of Section 195 (b) CrPC goes to show that no

court shall take cognizance of any offence described in

Section 193, Section 463 IPC, or punishable under

Section 471, Section 475 or Section 476, IPC, when such

(2020) 5 SCC 794

2022 LawSuit (AP) 1326

offence is alleged to have been committed in respect of a

document produced or given in evidence in a proceeding

in any Court, except on the complaint in writing of that

Court, or of some other court to which that Court is

subordinate, and in such circumstances, police are not

bound to investigate into the case in respect of the said

offences. But, in respect of other penal provisions,

police can investigate into the case and file report into

the Court. In the case on hand, police filed charge sheet

for the offences punishable under Sections 193, 467,

471, 120B, 109, 506 read with 34 IPC and the learned

Magistrate had taken cognizance of the aforesaid

offences, and when such is the case, the learned

Magistrate may be allowed to proceed with trial in

respect of the other offences.

5. Perused the record.

6. In the case on hand, it is alleged that A.2 along

with his son A.1 and wife A.3 and A.4 and A.5 hatched a

plan to knock away Ac.0.56 cents from the ancestral

property and prepared an unregistered will dated

14.02.2003 allegedly executed by their mother

Manikyamma, A.2 forged her signature in the presence

of A.4 and A.5 and cited them as witnesses, as if she

gave her share to A.1, and filed the forged document in

final decree proceedings pending in I.A.No.513 of 2019 in

O.S.No.951 of 2005 with an intention to gain more share

and to prevent passing of final decree, and also in

O.S.No.330 of 2018 on the file of the Additional Senior

Civil Judge, Chittoor. 2nd respondent, after receiving

copy of forged unregistered will dated 14.02.2003 from

the Court during pendency of O.S.No.330 of 2018

through certified copy and after sending the same to

Truth Foundation Forensic Science Laboratory, Chennai

and obtaining opinion of the expert, lodged the present

complaint.

7. In Rajeshbhai Muljibhai Patel & others v. State of

Gujarat and another (1 supra), the Hon‟ble Apex Court

held thus: (paragraphs 20 and 23

"20. Be that as it may, in Summary Suit No. 105 of 2015, leave to defend was granted to Respondent 2 Mahendrakumar on 19-4-2016. On the application filed by Appellant 3 in the said Summary Suit No. 105 of 2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of Respondent 2 Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No. I-194/2016 was registered on 28-12-2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in Summary Suit No. 105 of 2015, Issue 5 has been framed by the Court "whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts". When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.

23. In the result, the impugned order is set aside and these appeals are allowed. Criminal Miscellaneous Application No. 2735 of 2017 filed by the appellants is allowed and FIR No. I-194/2016 is

quashed. Criminal Miscellaneous Application No. 24588 of 2017 filed by Yogeshbhai Muljibhai Patel stands dismissed. Case filed by Appellant 3 Hasmukhbhai Ravjibhai Patel under Section 138 of the NI Act -- CC No. 367 of 2016 stands restored. The 5th Additional Civil Judge & JMFC, Bharuch is directed to proceed with the case in CC No. 367 of 2016 filed under Section 138 of the NI Act and afford sufficient opportunity to both the parties and dispose of the same in accordance with law. Summary Suit No. 105 of 2015 shall be proceeded in accordance with law without being influenced by any of the views expressed by the High Court in the impugned order."

In M.Nagasanjeva Reddy v. State of A.P.(2 supra),

this Court held thus: (paragraph 13).

"to the mind of this Court, the Hon‟ble Supreme Court had laid down a principle that when a civil Court is seized of the question relating to the validity of a document, it would not be appropriate to permit criminal investigation into the validity of the said document. In that view of the matter, the contention of the learned Senior Counsel that there is no ratio in this Judgment cannot be accepted."

8. The view taken by the Hon‟ble Apex Court in the

aforesaid decision is that criminal investigation into a

matter which is in issue and especially when the

question of validity of a document is an issue before the

civil court, would not be permissible as it would

prejudice the rights and interests of the persons

propounding the said document. Admittedly,

authenticity/genuineness of the disputed unregistered

will dated 14.02.2033 is in question in the final decree

proceedings in I.A.No.513 of 2019 in O.S.No.915 of 2005

on the file of the II Additional Junior Civil Judge,

Chittoor and also in O.S.No.330 of 2018 on the file of the