Delhi High Court
Smt Shalini Dhingra vs State & Anr. on 21 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21st September, 2017
1. CRL.M.C. 3499/2013 & CRL.M.A.12831/2013
SMT SHALINI DHINGRA ..... Petitioner
Through: Mr. P. P. Khurana, Sr. Adv. with
Mr. Sachin Sood, Adv.
versus
STATE ..... Respondent No.1
R. VIJAYNANDAN REDDY ..... Respondent No.2
Through: Mr.Izhar Ahmad, APP for State
Mr. Anoop George Chaudhary, Sr.
Adv. Ms. June Chaudhary, Sr. Adv.
with Mr. M. Tarique Siddiqui,
Mr. Tanveer Ahmad and
Ms. Reetika Gupta, Advs. for R-2.
2. CRL.M.C. 3911/2014 & CRL.M.A.13376/2014, 171/2016
RAMA DEVI ..... Petitioner No.1
KRISHNA PRIYA ..... Petitioner No.2
Through: Mr. Dayan Krishnan, Sr. Adv. with
Mr. Ranjeet Singh, Mr. P. Srinivas
Kumar and Ms. Joolie Kataria, Advs.
versus
STATE ..... Respondent No.1
CRL.M.C. 3499/2013, CRL.M.C. 3911/2014 & CRL.M.C. 4994/2014 Page 1 of 20
R. VIJAYNANDAN REDDY ..... Respondent No.2
Through: Mr. Izhar Ahmad, APP for State
Mr. Anoop George Chaudhary, Sr.
Adv. Ms. June Chaudhary, Sr. Adv.
with Mr. M. Tarique Siddiqui,
Mr. Tanveer Ahmad and
Ms. Reetika Gupta, Advs. for R-2.
3. CRL.M.C. 4994/2014 & CRL.M.A.17111/2014
PARDEEP DHINGRA ..... Petitioner
Through: Mr. Vikas Pahwa, Sr. Adv. with
Mr. Karan Khanuja and
Ms. Astha Sharma, Advs.
versus
STATE (NCT OF DELHI) ..... Respondent No.1
R. VIJAYNANDAN REDDY ..... Respondent No.2
Through: Mr.Izhar Ahmad, APP for State
Mr. Anoop George Chaudhary, Sr.
Adv. Ms. June Chaudhary, Sr. Adv.
with Mr. M. Tarique Siddiqui,
Mr. Tanveer Ahmad and
Ms. Reetika Gupta, Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE I. S. MEHTA
JUDGMENT
I. S. MEHTA, J.
1. By virtue of the above three captioned petitions, the petitioners
invoke the inherent jurisdiction of this Court under Section 482 of
the Code of Criminal Procedure, 1973 read with Article 226 of
Constitution of India, 1950 to quash the summoning order dated
1st April, 2013 passed against the petitioners by Metropolitan
Magistrate, Saket District Courts in Criminal Complaint No.
547/2/12.
2. The factual matrix of the case is that, the respondent no.2 -R.
Vijaynandan Reddy filed a criminal complaint against the four
petitioners herein namely
a. Rama Devi (accused no.1),
b. Krishna Priya (accused no.2),
c. Pradeep Dhingra (accused no.3) and
d. Shalini Dhingra (accused no.4)
under Section 200 Cr.P.C. before Chief Metropolitan Magistrate,
Saket on 15.02.2012 alleging that Rama Devi in connivance with
Smt. Shalini Dhingra forged a Will dated 14.02.1998 and sold the
property bearing no.C-72, Freedom Fighters Cultural Centre, at Neb
Sarai, Saket, New Delhi measuring 400 square yards (hereinafter
referred to as the „said property‟) .
3. As per the complaint, the said property was jointly owned by
the respondent no.2- R. Vijaynandan Reddy, an advocate and his late
grandfather Shri. R. Venkata Reddy, who was a freedom fighter. The
father of the respondent no.2 Shri. R. Venugopal Reddy raised a
house on the said plot. It is alleged in the complaint that Rama Devi
petitioner/accused no.1 had illicit relations with the father of the
respondent no.2 and Krishna Priya petitioner/accused no.2 is the
daughter of Rama Devi petitioner/accused no.1. The said property
was allotted to the respondent no.2/complainant on 21.12.1986. On
18.08.1995, the respondent no.2/complainant‟s father Shri R.
Venugopal Reddy made a will bequeathing all his property including
the said property in the name of respondent no.2/complainant. On
24.03.1999, a notice under section 126 of Delhi Municipal
Corporation Act, 1957 was issued by the Municipal Corporation of
Delhi in the name of respondent no.2 and his grandfather.
4. It is further alleged that the petitioner/accused no.1 Rama Devi
claims herself to be the wife of father of respondent no.2 and she
illegally occupied the said property. After the death of the father of
respondent no.2 i.e. Shri R. Venugopal Reddy on 15.08.2002, when
respondent no.2 visited the property in September 2002, he found
Smt. Rita Sachdeva was staying as a tenant of petitioner/accused no.3
Pradeep Dhingra. Accused no.3 Pradeep Dhingra claims to have
purchased the said property from accused no.1 and 2 namely Rama
Devi and Krishna Priya.
5. It is alleged in the complaint that, Rama Devi and her daughter
Krishna Priya (accused no. 1 and 2) made a fabricated Will dated
14.02.1998 purported to be executed by the father of respondent no.2
i.e. Shri R. Venugopal Reddy in favour of Rama Devi and Krishna
Priya. Thereafter, on the basis of the forged Will dated 14.02.1998,
accused no.1 and no.2 i.e. Rama Devi and Krishna Priya sold the said
property to Pradeep Dhingra and Shalini Dhingra (accused no. 3 and
4) through Will, General Power of Attorney, Special Power of
Attorney all executed on 25.01.2003. In addition to that, they also
entered into an agreement to sell with accused no.3 and 4 i.e. Pradeep
Dhingra and Shalini Dhingra on 29.01.2003.
6. It is stated in the complaint that the respondent no.2 obtained a
letter of administration no. C.A. 48 of 2003, dated 04.08.2003 from
High Court of Andhra Pradesh to administer and to receive the
assets/amount left in the account of Late R. Venugopal Reddy within
the state of Andhra Pradesh, i.e. Rs.54,991/- being the Bank Deposit
and Income Tax Refund amount. This letter of administration was
granted only in favour of the respondent no.2/complainant. The
respondent no.2 had lodged complaint on 05.06.2003 with SHO, P.S.
Mehrauli. The respondent no.2 issued a legal notice on 05.05.2005 to
Pradeep Dhingra. Reply to the legal notice was sent on 14.05.2005,
thereby informing the factum of purchase of the suit property by
Pradeep Dhingra and Shalini Dhingra.
7. Thereafter, the respondent no.2 in the year 2006 filed a Civil
Suit bearing CS (OS) No. 239/2006 in High Court of Delhi seeking
relief that all documents executed by petitioners Rama Devi and
Krishna Priya in favour of petitioner Pradeep Kumar Dhingra be
declared null and void with the relief of possession along with
damages and mesne profits.
8. It is the case of the respondent no.2 that it was only after the
filing of the Written Statement by petitioners/defendant in CS (OS)
No.239/2006, the respondent no.2/complainant came to know about
the forged Will dated 14.02.1998 allegedly written by his father, in
favour of Rama Devi and Krishna Priya (accused no.1 and 2) in
connivance and in collusion with Pradeep Dhingra and Shalini
Dhingra (accused no.3 and 4), on the basis of which the said suit
property was allegedly sold by accused no.1 Rama Devi to accused
no.3 and 4 i.e. Pradeep Dhingra and Shalini Dhingra.
9. On 09.09.2010, the said suit was dismissed by the Single Judge
under Order VII Rule 11 CPC. However, the said Civil Suit of the
respondent no.2 was restored vide order dated 03.01.2013 in Regular
First Appeal (OS) 121/2010 by the Division Bench of High Court of
Delhi. The Civil Suit of the respondent no.2 was transferred to
District Court (Saket), Delhi vide order dated 27.01.2016 passed by
the Joint Registrar (Judicial), Delhi High Court as the suit property
was valued at less than two crores. The suit is currently pending in
the District Court (Saket).
10. On 15.02.2012 the respondent no.2 herein filed a criminal
complaint against Rama Devi, Krishna Priya, Pradeep Dhingra and
Shalini Dhingra under Section 200 Cr.P.C. before the Chief
Metropolitan Magistrate, Saket.
11. On 01.04.2013, the learned Metropolitan Magistrate took
cognizance against all the four accused persons i.e. Rama Devi
(accused no.1), Krishna Priya (accused no.2), Pradeep Dhingra
(accused no.3) and Shalini Dhingra (accused no.4) for commission of
offences under Sections 467/468/471/120-B IPC and issued
summons.
12. Against the said summoning order dated 01.04.2013 passed by
the learned Metropolitan Magistrate, all the four accused persons i.e.
Smt. Shalini Dhingra filed Crl. M.C. 3499/2013, Rama Devi and
Krishna Priya jointly filed Crl. M.C. 3911/2014 and Pradeep Dhingra
filed Crl. M.C. 4994/2014 assailing the said summoning order before
this Court under Section 482 Cr.P.C. read with Article 226 of
Constitution of India for quashing of the complaint no. 547/2/12 and
also the summoning order dated 01.04.2013.
Hence the present three petitions.
13. The learned senior counsel Mr.P.P.Khurana appearing on behalf
of the petitioner Smt. Shalini Dhingra in CRL.M.C. 3499/2013 has
submitted that the petitioner Smt. Shalini Dhingra along with her
husband Pradeep Dhingra purchased the property from Smt. Rama
Devi and is a bona fide purchaser of the said property. The said
property was purchased in the year 2003. The respondent
no.2/complainant Vijaynandan Reddy filed a Civil Suit bearing CS
(OS) No. 239/2006 subsequently after a gap of three years and
prayed for a decree for declaring all the documents executed by Mrs.
Rama Devi and her daughter Ms. Krishna Priya as null and void and
a decree for possession of the suit premises in favour of respondent
no.2 along with damages and mesne profits amounting to Rs.
11,50,000/- from the date of filing of the suit and future
damages/mesne profit @ Rs. 50,000/- per annum till vacant
possession of the suit premises is given. The said prayer in the said
suit has been rejected by this Court by an order passed by Hon‟ble
Mr. Justice V.K. Shali dated 09.09.2010. The said suit has been
rejected under Order VII Rule 11 (a) CPC for want of cause of action
resulting into and not affected by res judicata as nothing has been
determined.
14. The learned senior counsel has further submitted that this Court
has given sufficient opportunity to produce the documents in support
of his title but despite giving of opportunity he failed to produce the
same and the property in which the suit has been filed is a society
property and he could have produced the document of its registration
or its membership issued by the society to show that he possesses
right, title and interest in the said property.
15. The learned senior counsel has further submitted that the
respondent no.2/complainant- Vijaynandan Reddy was given a last
opportunity to file documents despite that the respondent
no.2/complainant- Vijaynandan Reddy failed to produce any
document. When the respondent no.2/complainant ultimately failed
to produce any documents despite been given several opportunities,
this Court vide order dated 14.12.2006 ordered for recording the
statement of respondent no.2 under Order 10 Rule 2 of Civil
Procedure Code. The statement of respondent no.2 was recorded by
this Court on 23.07.2007. The learned senior counsel has further
submitted that the statement recorded on 23.07.2007 (Annexure P-
15) ipso facto shows that Mr. R. Vijaynandan Reddy does not
possess any title document of the suit property, which is reproduced
herein:
Annexure P-15
CS(OS) No.239/2006
Dated: 23rd July, 2007
STATEMENT OF MR. R. VIYANANDAN REDDY S/O
ENUGOPAL REDDY R/O 2-2-12/A, D.D. COLONY,
HYDERABAD-500 007 ON S.A.
".....Other than the documents already filed
by me on record, I am possessed of no other
documents to show my title in respect of the
suit property."
16. The learned senior counsel further submitted that on the basis of
the said document, this Court rejected the plaint vide order dated
09.09.2010 and held that plaint is without any cause of action. He has
further submitted that the respondent no.2/complainant filed a
Regular First Appeal (OS) 121/2010 against the impugned order
dated 09.09.2010 before the Division Bench of this Court and the
said appeal was dismissed for non-prosecution vide order dated
10.07.2012. However, the said appeal was restored to its original
number vide order dated 03.01.2013 by the Division Bench and the
impugned order was set aside and the matter was remanded back to
the civil court where the said suit is still pending in the same status
and even the issues have not been framed in the said suit.
17. The learned senior counsel for the petitioner further submitted
that however, a complaint has been filed in the year 2012 after nine
years under Section 200 Cr.P.C. alleging commission of offences
under Sections 467/468/471/465/120-B IPC. The learned senior
counsel pointed out that once a statement under Order 10
Rule 2 CPC recorded by this Court is present and the respondent
no.2/complainant has failed to file any document or complied with
the provisions and his own admission that he does not possess any
documents shows that the complaint itself is without any cause of
action, is an after-thought moreover it is a perverse complaint and the
impugned order passed by the learned Metropolitan Magistrate may
be quashed. He further submitted that the learned Metropolitan
Magistrate while passing the impugned summoning order has not
applied his mind in the proper way and has relied upon the following
judgments in support of his arguments:-
i. Zandhu Pharmaceuticals Works Ltd. & Others v.
Mohd. Sharaful Haque & Anr., (2005) 1 SCC
ii. Sardool Singh & Anr. v. Smt. Nasib Kaur, 1987
(Supp) SCC 146.
iii. G. Sagar Suri & Anr. v. State of U.P. & Ors., JT
2000 (1) SC 360.
iv. Pepsi Foods Ltd. v. Special Judicial Magistrate &
Ors., AIR 1998 SC 128.
v. Madhavrao Jiwajirao Scindia & Ors. v.
Sambhajirao Chanrajirao Angre & Ors. (1998) 1
SCC 692.
vi. Indian Oil Corpn. v. NEPC India Ltd. & Ors.,
(2006) 6 SCC 736.
vii. Hiralal & Ors. v. State of U.P. & Ors., AIR 2009
SC 2380.
viii. Kishan Singh (D) through L.Rs. v. Gurpal Singh
& Ors., AIR 2010 SC 3624.
ix. Dhannulal & Ors. v. Ganeshram & Anr., 2015 (4)
SCALE 613.
x. Rajiv Thapar & Ors. v. Madan Lal Kapoor, 2013
3 SCC 330.
xi. Mohd. Ibrahim & Ors. v. State of Bihar, (2009) 8
SCC 751.
xii. State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335.
xiii. Priya Varat Singh v. Shayam Sahay, 2008 (8)
SCC 232.
xiv. Suresh v. Mahadevappa Shivappa Danananna,
2005 (3) SCC 670.
18. Per contra, the learned senior counsel appearing on behalf of the
respondent no.2/complainant has submitted that the impugned order
dated 01.04.2013 suffers from no infirmity and does not call for any
interference. He has laid emphasis on the fact that while dealing with
the complaint under Section 200 Cr.P.C. only the allegations made in
the complaint have to be seen and interference is called for by this
Court only in a situation where a bare reading of the complaint does
not make out an offence.
19. The learned senior counsel has further submitted that in the
instant petition the complaint relates to a property situated at plot
No.72 C Block, of 400 sq. yards in Freedom Fighters Cultural
Centre, Neb Sarai allotted to Mr. R. Venkata Reddy- the grandfather
of the respondent no.2/complainant- Mr. R. Vijayanandan Reddy. He
has further submitted that Mr. R. Venkata Reddy was a freedom
fighter and the grandfather of the respondent no.2/complainant and
R. Venugopal Reddy is the son of R. Venkata Reddy. In the present
petition, Mr. R. Venkata Reddy freedom fighter is no more and his
son Mr. R. Venugopal Reddy is also no more and his son Mr. R.
Vijaynandan Reddy is alive and is pursuing the complaint. He has
further submitted that the plot in question which was allotted at the
time of grandfather R. Venkata Reddy was in the joint name of R.
Venkata Reddy and the respondent no.2/complainant Vijayanandan
Reddy.
20. The learned senior counsel for the respondent no.2 has further
submitted that when the respondent no.2/complainant came from
Andhra Pradesh to Delhi he came to know that the property in
question was occupied by accused No.1 & 2 i.e. Rama Devi and
Krishna Priya through accused No.3 & 4 Pradeep Dhingra and
Shalini Dhingra.
21. He has further submitted that Rama Devi though factually
incorrect however, claims to be the wife of R. Venugopal Reddy late
father of the respondent no.2/complainant and it is because of this
reason the respondent no.2/complainant filed a Civil Suit
No.239/2006 for recovery of possession qua the accused persons.
The defence taken by the accused persons in the said Civil Suit after
the filing of the Written Statement revealed that the property in hand
of Rama Devi came to her through a forged Will to which the
original till date has neither been filed nor traced out. The alleged
Will is dated 14.02.1998 and no probate petition has been filed till
date nor exhibited.
22. He has further submitted that when this fact came in his
personal knowledge, the respondent no.2/complainant sent the
alleged Will for opinion of the handwriting expert and disputes the
very existence of the alleged Will and validity of the execution of the
said Will.
23. The learned senior counsel for respondent no.2 has further
submitted that the said Civil Suit filed by the respondent
no.2/complainant is still pending before the District Court, Saket,
New Delhi. The learned senior counsel has submitted that the Civil
Suit was filed on 03.02.2006 and the present criminal complaint was
filed on 15.02.2012 after almost 5 years after receiving the opinion of
handwriting expert.
24. The learned senior counsel for the respondent no.2 further
submitted that the possession of the property in question has been
handed over to accused No.3 & 4 Pradeep Dhingra and Shalini
Dhingra under an agreement to sell for Rs.10 Lakhs whereas the
property is worth Crores. He has further submitted that the petitioner
by entering into the agreement to sell, the colour of the title has come
down into a cloud, therefore, it is the respondent no.2/complainant
who has to take back the possession of the aforesaid property for
which he has already filed a Civil Suit which is pending and when
the respondent no.2/complainant came to know that the crores of
property has been transferred under the garb of the agreement to sell,
the same has been done through criminal conspiracy.
25. The learned senior counsel appearing on behalf of respondent
no.2 has further submitted that during the existence of the Civil Suit,
the criminal case too is maintainable and relied upon the judgment of
the Apex Court in Taramani Parakh vs. State of M.P. & Ors., 2015
Crl.LJ 2031 (para 27.11.) He has further submitted that the instant
petition pertains to a criminal conspiracy alleged to have been
committed by the petitioners/accused persons and therefore
invocation under Section 482 Cr.PC is not permissible and submits
that the present petitions be dismissed. The learned senior counsel for
the respondent no.2 in support of his submissions has relied upon the
following judgments:-
i. State of Haryana & Ors. vs. Ch. Bhajan Lal &
Ors., AIR 1992 SC 604.
ii. Ravinder Kumar Madanlal Goenka & Anr. vs.
Rugmini Ram Raghav Spinners Pvt. Ltd.,(2009)
(11) SCC 529.
iii. Taramani Parakh vs. State of M.P. & Ors., 2015
Crl.L.J. 2031.
26. I have given my thoughtful consideration to the submissions
made by learned counsel for both the parties and have also perused
the material on record.
27. The whole dispute in these three petitions, hinges around
whether in presence of the Will being sub judice, the institution of
criminal prosecution is proper?
The answer is NO.
28. The word „Will‟ as per the Oxford English Dictionary Volume 2
is defined as:
"A person‟s formal declaration as to the
disposal of his or her property after death, having or
intended to have legal force and usu. made in
writing, to be signed and witnessed; the document in
which this declaration of intention is expressed. "
As per Black‟s Law Dictionary, Ninth Edition, the term
„Will‟ has been defined as:
"The legal expression of an individual‟s wishes
about the disposition of his or her property after
death; esp., a document by which a person directs
his or her estate to be distributed upon death."
As per Halsbury‟s Laws of England, Fourth Edition, the
term „Will‟ has been defined as:
" A will or testament is the declaration in a
prescribed manner of the intention of the person
making it with regard to matters which he wishes
to take effect on or after his death. The word „will‟,
although commonly used to describe one of a
series of instruments expressing testamentary
intentions, denotes the aggregate formal
expression of such intentions of the testator
existing at his death. However, although all wills
and codicils subsisting at the testator‟s death are
construed together as one testamentary
disposition, they are not construed as one
document."
29. In totality, the „Will‟ in law is a formal declaration document
usually in the form of executed document, of a person‟s wishes
regarding the disposal of his or her property on his or her death. Such
a document is a valid document if it meets the formalities of law,
which generally requires the signature of testator, witnessed by two
witnesses and thereafter witnessed by the scriber. The „Will‟ so
documented in presence of aforesaid witnesses should indicate the
sound and disposing state of mind to indicate that the testator
understood the nature and effect of disposition of the property at his
conscious and free will. The onus of proving the „Will‟ always
remains on the propounder. At the same time, it may be considered
invalid if, among other instances the testator was mentally in capable
of disposing of his or her, if it imposes unreasonable or cruel
demands as a condition of inheritance or if the testator did not have
clear title to bequeath assets. Any party who contest a Will must
bring the claim within a time specified by statute and must bear the
burden of proof in demonstrating that the Will is faulty either on the
legal capacity or of unsoundness of testator.
30. In the instant petition, the respondent no.2/complainant- Mr. R.
Vijaynandan Reddy, filed a criminal complaint under Section 200
Cr.P.C. for commission of offences under Sections 405, 420, 464,
465, 467, 468, 469, 471, 120-B & 34 of IPC by the present
petitioners namely:
a. Rama Devi (accused no.1),
b. Krishna Priya (accused no.2),
c. Pradeep Dhingra (accused no.3) and
d. Shalini Dhingra (accused no.4)
31. The respondent no.2/complainant in its complaint has
specifically stated that Shri. R. Venkata Reddy was a freedom fighter
and he was allotted a plot of land bearing No. C-72, Freedom Fighter
Cultural Centre, at Neb Sarai, Saket, New Delhi and measuring about
four hundred (400) square yards in total. Shri. R. Venkata Reddy was
succeeded by his son Shri. R. Venugopal Reddy on his death and
respondent no.2/complainant succeeded the property in dispute vide a
Will dated 18.08.1995 and his father R. Venugopal Reddy died on
15.08.2002.
32. The respondent no.2/complainant further alleges that after the
death of his father, he visited the property where he found one Smt.
Rita Sachdeva, occupying the premises and claiming to be a tenant of
petitioner- Pradeep Dhingra (accused no.3) and on inquiry, Pradeep
Dhingra told the respondent no.2/complainant that the said property
was purchased by him from accused no.1 and 2 i.e. Rama Devi and
Krishna Priya. The respondent no.2- R. Vijaynandan Reddy has
alleged in paragraph j. of his complaint that he came to know
petitioners/accused persons i.e. Rama Devi, Krishna Priya, Pradeep
Dhingra and Shalini Dhingra have fabricated the alleged Will.
33. It is in paragraph k. of the complaint, the respondent
no.2/complainant himself alleges the existence of one another Will
dated 14.02.1998 to be a manipulated one and not a genuine Will.
Thereafter, the respondent no.2 issued a legal notice to all the
accused persons on 05.05.2005 for handing over the vacant
possession of the property in question and claimed to have
committed the offences punishable under Sections 405, 420, 464,
465, 467, 468, 469, 471, 120-B & 34 of IPC.
34. It is also, an admitted fact emerging on record, that the
respondent no.2- Mr. R. Vijaynandan Reddy has filed a Suit for
declaring all the documents executed by Mrs. Rama Devi and her
daughter Ms. Krishna Priya as null and void and for declaration,
recovery of possession and for recovery of damages for use and
occupation of the property in question i.e. C-72, Freedom Fighter
Cultural Centre, at Neb Sarai, Saket, New Delhi on 03.02.2006
(Annexure- P10) qua Pradeep Kumar Dhingra (defendant no.1),
Rama Devi (defendant no.2) and Krishna (defendant no.3) in this
Court and the said Suit is currently pending adjudication before
District Court (Saket).
35. As per the respondent no.2/complainant- R.Vijaynandan Reddy,
he himself admits in the complaint that there are two Wills. The Will
dated 18.08.1995 has been executed by his father in his favour and
the said Will is a genuine Will. The Will dated 18.08.1995, talks
about Krishna Priya to be the daughter of Late R. Venugopal Reddy
and puts the obligation on the present respondent no.2/complainant to
perform the marriage of Krishna Priya/petitioner herein.
36. The respondent no.2/complainant instead of coming with clean
hands by making Krishna Priya a necessary party in the Letter of
Administration No. C.A. 48 of 2003 dated 04.08.2003, he comes up
with the allegation of commission of offences punishable under
Sections 405, 420, 464, 465, 467, 468, 469, 471, 120-B & 34 of IPC
against the petitioner Krishna Priya/accused no.2.
37. Since, it is an admitted fact, emerging on record that the civil
dispute pertaining to the plot in question i.e. C-72, Freedom Fighter
Cultural Centre, at Neb Sarai, Saket, New Delhi is pending before the
District Court (Saket), wherein the genuineness of the two Wills is
yet to be determined, the question of fabrication of the Will dated
18.08.1995 by the petitioners is uncalled for, as both the Wills are yet
to undergo the test of proof of execution of the Will, as per the
mandate of Section 68 of the Indian Evidence Act, 1872.
38. Therefore, the present dispute is purely civil in nature between
the parties, wherein genuineness of the Will is sub judice before the
competent court of its jurisdiction and initiation of criminal
prosecution is unwarranted. Reliance is placed on Sardool Singh &
Anr. v. Smt. Nasib Kaur, 1987 (Supp) SCC 146, wherein the
Hon‟ble Supreme Court has held that:
"When the question regarding validity of Will
is sub judice, criminal prosecution on the allegation
of the Will being a forged one cannot be instituted"
39. The contention of the learned senior counsel for the respondent
no.2 loses significance as the genuineness of the Will is yet to be
determined and the judgments relied upon by him is inapplicable in
the present facts and circumstances.
40. Consequently, the impugned summoning order dated
01.04.2013 passed by the learned Metropolitan Magistrate is set aside
and all the three petitions are allowed and disposed of in the above
terms.
41. Let one copy of this judgment be sent to the concerned Court
and one copy of this judgment be placed on the files of Crl.M.C.
3911/2014 and Crl.M.C. 4994/2014.
No order as to costs.
I.S.MEHTA, J
SEPTEMBER 21, 2017
