Bombay High Court
Kishor Mukundilal Agrawal vs Santosh S/O Mukundilal Agrawal ... on 27 June, 2022
Bench: V. G. Joshi
Judgment APL1068.19
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] No. 1068/2019.
Kishor Mukundilal Agrawal,
Aged about 60 years, Occupation
Business, resident of Devi Khadan,
Akola, Taluq and District
Akola. ... APPLICANT.
VERSUS
1.Santosh s/o Mukundilal Agrawal,
Aged about 58 years, Occupation -
Business, resident of Alsi Plot,
Akola, Taluq and District
Akola.
2. State of Maharashtra,
through Police Station Officer,
Khadan Police Station, Akola,
Taluq and District Akola. ... NON-APPLICANTS.
---------------------------------
Mr. A.A. Naik, Advocate for the Applicant.
Mr.R.L.Khapre, Senior Advocate with D.R. Goenka, Advocate for
Non-applicant No.1.
Mr.S.M. Ukey, Addl. P.P. for Non-applicant No.2.
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CORAM : VINAY JOSHI, J.
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Judgment APL1068.19
2
CLOSED FOR JUDGMENT ON : 21.06.2022
JUDGMENT PRONOUNCED ON : 27.06.2022
JUDGMENT :
This application raises a challenge to the order dated
07.08.2019 of the Additional Sessions Judge, Akola by which the
order dated 25.10.2018, passed by the Judicial Magistrate First
Class, Akola directing registration of Crime in terms of Section
156[3] of the Code of Criminal Procedure, has been quashed and set
aside. The applicant /original complainant, is aggrieved by the
order of the Additional Sessions Judge reversing the order of
registration of crime.
2. It is a sibling rivalry between two brothers. The applicant
- Kishore alleges that the non-applicant - Santosh, who is his real
brother, has forged and fabricated a document of Will dated
03.03.2016 purportedly executed by their late father Mukundilal. By
alleging forgery and fraud, the applicant had applied to the Court of
Judicial Magistrate First Class in terms of Section 156[3] of the Code
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seeking registration of crime. The applicant has brought to the
notice of the learned Magistrate that prior to applying before him, he
has filed a report with the concerned police on 18.01.2018, and to
the Superintendent of Police on 02.06.2018, but, no action was
taken in the form of registration of crime. In such a background he
had applied to the Magistrate for issuance of appropriate directions
to the police for registration of first information report. The
learned Magistrate at pre-cognizance stage examined the application
and vide order dated 25.10.2018 directed police to register crime for
the offence punishable under Sections 467 and 468 of the Indian
Penal Code.
3. Being aggrieved by said order, the non-applicant Santosh
has applied to the Court of Sessions in its revisional jurisdiction for
setting aside the order of registration of crime. In turn the learned
Additional Sessions Judge after hearing both sides was pleased to
uphold the contention of the non-applicant, and accordingly quashed
and set aside the order of registration of crime dated 15.10.2018. In
turn the applicant has raised a grievance under inherent jurisdiction
of this Court and prayed for registration of Crime.
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4. Heard extensively Shri A.A. Naik, learned Counsel for the
Applicant, Shri R.L.Khapre, Senior Counsel alongwith Shri D.R.
Goenka, Advocate for the Non-applicant No.1 and Shri S.M. Ukey,
learned Addl.P.P. for Non-applicant No.2 State, as well as gone
through the material on record and citations relied by the learned
Counsel for the parties.
Admit and taken up for final disposal by consent.
5. The applicant - Kishore and non-applicant no.1-Santosh
are real brothers having three sisters. The applicant has filed
Regular Civil Suit No.136/2017 in the Court of Civil Judge, Senior
Division, Akola against the non-applicant Santosh claiming the relief
of declaration and injunction. The said suit was contested by
Santosh and by amending written statement, has pleaded and
claimed property rights on the basis of a disputed Will purportedly
executed by their late father on 03.03.2016. According to the
applicant, the said Will was never executed by their late father, but,
it was forged and fabricated by his brother Santosh. After knowing
about the purported Will dated 03.03.2016, the applicant forwarded
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the Will to the handwriting expert. On examination the handwriting
expert has affirmed that it was not signed by the alleged testator.
On receipt of the experts report, the applicant Kishore initially
applied to the police and then to the Magistrate for registration of
crime for the offence of forgery.
6. Shri A.A. Naik, learned Counsel appearing for the
applicant by supporting the order of the learned Magistrate has
seriously criticized the order of reversal Court. He argued that the
purported Will was totally false and forged document. It does not
bear the signature of applicants' father. It is his contention that
applicant's father i.e. Mukundilal had already executed two
registered Wills dated 29.04.2010 and 14.08.2015. There was no
propriety and occasion for the applicant's father to execute third
purported Will. On comparison of signatures on the disputed Will
with the copies of registered Will, it is evident that they are forged
one. Moreover, the handwriting expert has also opined about the
case of forgery. Apart from doubting the signature of the testator, it
is contended that in the wake of disposition of the family property by
compromise, disposition of the same property by Will is seriously
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doubtful. It is stated that the testator Mukundilal was not keeping
good health at the time of execution of the alleged Will. Moreover,
the applicant was disinherited, though the deceased had equal love
and affection to all his children. Precisely the contentions raised by
the applicant are in the nature of defence in civil suit to impeach the
genuineness of the Will.
7. The learned Counsel for the applicant has strongly
criticized the order of the revisional Court. He would submit that the
two prior Wills dated 29.04.2010 and 14.08.2015, were registered
one, therefore, prima facie its genuineness cannot be disputed. It is
his submission that experts' opinion is in the aid of other material.
At the preliminary stage it is expected from the Magistrate to apply
his mind to find out whether bare reading of the complaint discloses
a cognizable offence. To substantiate said contention, he has relied
upon the decision of the Supreme Court in case of Srinivas Gundluri
and others .vrs. Sepco Electric Power Construction Corporation and
others - (2010) 8 SCC 206.
8. The learned Counsel for the applicant further submitted
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that the applicant - Kishore in his complaint has specifically stated
about a case of forgery and fraud. The allegations leveled in the
complaint makes out a prima facie case to constitute an offence.
The order of the Magistrate is well reasoned and discloses due
application of mind to the extent of perceiving commission of a
cognizable offence. He would submit that at this stage it is not
expected from the Magistrate to delve upon the merits of the
allegations and therefore, the order of Magistrate is well justified.
9. He would submit that preliminary enquiry conducted by
the police was one sided which has no bearing at all. The learned
Counsel for the applicant would submit that though the disputed will
was produced in pending civil proceedings, however, civil and
criminal action would go hand in hand. Relying on the decision of
the Supreme Court in case of M. Krishnan .vrs. Vijay Singh and
another - (2001) 8 SCC 645, it is submitted that merely on the
basis of pendency of a civil suit, criminal action cannot be quashed.
Reliance is also placed on the decision of the Supreme Court in case
of Priti Saraf and another .vrs. State of NCT of Delhi and another -
2021 SCC Online SC 206, to contend that the criminal prosecution
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cannot be quashed on the ground that simultaneous civil remedy is
available to the party. On the same line further reliance is placed
on the decision in case of Kamal Shivaji Pokarnekar .vrs. State of
Maharashtra and others - (2019) 14 SCC 350 to impress that
though litigation bears civil flavour, still criminal action would lie.
10. Per contra, Shri Khapre, the learned Senior Counsel
appearing for non-applicant no.1 has supported the order of the
Additional Sessions Judge by contending that the issue regarding
genuineness of the Will is pending before the civil Court, hence,
simultaneous criminal action is not maintainable. On facts he would
submit that though there was a compromise in between the siblings,
however, it was not acted upon. The applicant Kishore has issued
cheques in terms of the compromise, however, they were
dishonoured, therefore, the property disposed of in terms of
compromise has become part of bequeath. He would submit that the
testator has executed a Will in presence of two attesting witnesses.
Since the testator had kept the Will with his wife, the non-applicant
Santosh was unaware about the execution of the Will. As and when
he got knowledge of the Will, he has produced the same in the civil
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suit filed by the applicant Kishore.
11. The learned Senior Counsel would submit that in
pursuance of directions of the Supreme Court in case of Lalita
Kumari .vrs. Government of Uttar Pradesh and others - (2014) 2
SCC 1, the dispute being amongst the family members, police have
conducted preliminary enquiry on the initial report. He has
attracted my attention to the preliminary enquiry report, wherein,
after recording statements, including attesting witness, the police
concluded that no offence is made out. It is his submission that the
applicant Kishore has suppressed the said material while applying to
the Magistrate for registration of crime.
12. The learned Senior Counsel would submit that the
opinion expressed by the handwriting expert itself is defective. The
handwriting expert has compared signatures on the basis of
photocopies. By placing reliance on the decision of Punjab and
Haryana High Court Court in case of Mohinder Singh vrs. State of
Haryana and others - (Crm.A.No. 623-MA of 2016 decided on
02.03.2017), he would submit that comparison of signatures on the
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basis of photocopies would loose the credibility of experts evidence.
Besides that it is submitted that the expert has compared the
signature of disputed Will with the signatures on two earlier Wills,
which itself are in dispute. In other words, there is no comparison of
disputed signature with admitted one.
13. According to the non-applicant, the learned Magistrate
seriously erred in directing police to register the crime, and the
order does not reflect due application of mind. According to him,
there is no iota of evidence to make out a case for issuance of
directions to the police for registration of a first information report.
The learned Senior Counsel has relied on several decisions to uphold
his contention that since the issue of genuineness of the Will is
pending for consideration in civil suit, the criminal action would not
lie.
14. Since both the sides have relied on various decisions on
the point of maintainability of the criminal action during the
pendency of the civil suit, I have carefully examined the decisions
cited by the parties. The first reliance of the applicant is on the
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decision in case of Srinivas Gundluri (supra). In said case, a criminal
complaint was lodged alleging forgery of some documents. A civil
suit was filed by the accused therein pertaining to the same
documents. In that contest it has been observed that filing of civil
suit after initiation of criminal action, would not stall the criminal
proceeding. Pertinent to note that in said case the facts were such
that the respondent therein against whom there was allegation of
forgery had filed civil suit in respect of the same document, and on
that basis he has challenged the maintainability of the criminal
action. In such peculiar facts it was held that the criminal
proceedings cannot be quashed only on the ground of pendency of
civil suit. The said case is clearly distinguishable on facts.
15. In case at hand, a civil suit was filed by the applicant
Kishore, wherein the issue about the genuineness of Will has cropped
up. I may reiterate that in the suit filed by the applicant Kishore, the
non-applicant [accused] has claimed his right on the basis of a
disputed Will dated 03.03.2016. Obviously, in civil suit the onus
would lie on the non-applicant who proposes that Court shall believe
on the disputed Will. It is a matter for consideration whether the
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testator was in sound mind; whether there was reason for diverting
natural course of succession and so on. Thus, principally the issue
regarding genuineness of the Will is pending consideration in a suit
filed by the applicant himself. On such a background before
adjudication of civil suit, the applicant himself has filed a criminal
complaint, rather at a premature stage alleging that the Will is
forged and fabriucated.
16. In decision cited by the learned Senior Counsel in case of
Rajeshbhai Muljibhai Patel and others .vrs. State of Gujarat and
another - AIR 2020 SC 818, the Supreme Court in similar situation
held that the issue as to the genuineness of receipts is pending in
civil suit, therefore, the first information report ought not allowed to
have been continued as it would cause prejudice to the interest of
the parties and the stand taken by them in the civil Court.
17. Likewise in the decision of the Supreme Court relied by
the non-applicant in case of Sardar Ali Khan .vrs. State of Uttar
Pradesh and another - AIR 2020 SC 626, a civil suit for cancellation
of sale deed was filed. During the pendency of said suit, a criminal
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action was initiated alleging forgery. In that context, it is observed
that when the matter of validity of sale deed is subjudice before the
competent civil Court, it is for the civil Court to decide whether the
fraud is played or not, and therefore, a party cannot pursue criminal
proceeding for forgery.
The next reliance by the non-applicant is on the decision
in case of Sardool Singh and another .vrs. Smt. Nasib Kaur - SCC
1987 Suppl. 146, wherein the Supreme Court has expressed that
when Civil Court is seized with the question as regards to validity of
the Will, at this juncture, the respondent cannot be permitted to
institute a criminal prosecution on the allegations that the Will is
forged one. Inasmuch as, it is expressed that quashing of criminal
action will not come in the way of instituting appropriate proceeding
in future in case the civil Court comes to the conclusion that the Will
is forged one. On the same line, the learned Senior Counsel has
relied on the decisions in case of Laxman Vithoba Jadhav and
others .vrs. State of Maharashtra and others - 2016 [1] Bom.C.R.
(Cri) 167 and Wallace Joseph Hayden and others .vrs. State of
Maharashtra and others - 2007 All MR (Cri) 3401, wherein this
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Court also took a view that during the pendency of issue of
genuineness of a document before the Civil Court, continuation of
criminal prosecution amounts to abuse of the process of criminal
Court and duplication of proceeding.
18. Herein undisputedly the question of genuineness of
disputed Will dated 03.03.2016 is very much pending for
adjudication before the Civil Court, which is the competent Court to
decide the issue involved. In civil Court evidence would be led to
establish the genuineness of Will, including rebuttal evidence of
expert, if any. In the wake of such position, if criminal proceeding is
simultaneously allowed to go on, then it would be prejudicial to the
interest of other side. No doubt, after disposal of the civil suit, if so
advised, the party can resort to criminal remedy as held by the
Supreme Court in case of Sardool (supra).
19. On facts, various contentions are raised on the point
whether the order of Magistrate exposes due application of mind.
The rival submissions are made as to whether the contents of
application are sufficient to make out a prima facie case regarding a
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cognizable offence. I do not deem it necessary to delve upon the
said factual aspect, as from above discussion I hold that during
pendency of civil suit, wherein the same issue is seized by the civil
Court, it is not permissible to run a parallel action in the form of
criminal prosecution. It is open for the applicant to initiate criminal
proceeding after disposal of the civil suit, if so advised. In that view
of the matter, the order under challenge calls for no interference.
Criminal Application is therefore, dismissed.
JUDGE
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