Neeraj Khajuria vs Kuldeep Khajuria
2021 Latest Caselaw 1362 j&K

       HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                        AT JAMMU
                                   Reserved on 20.10.2021
                                   Pronounced on 29.10.2021

                                                  CRMC No. 202/2019 (O&M)


Neeraj Khajuria                                          .....Appellant/Petitioner(s)

                                Through :- Mr. Rajat Sudan, Advocate

                         v/s

Kuldeep Khajuria                                                  .....Respondent(s)

                                Through :- Mr. Sachin Sharma, Advocate


CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                  JUDGMENT

1. The present petition has been filed by the petitioner for setting aside the

order dated 24.12.2018 passed by the learned Principal Sessions Judge,

Udhampur (hereinafter to be referred as the trial court) in challan, titled,

State vs. Kuldeep Kumar, whereby respondent has been discharged for

commission of offences under sections 420, 467, 468 and 471 RPC

arising out of FIR bearing No. 273/2014 registered with Police Station,

Udhampur at the instance of the petitioner.

2. It is stated that the petitioner and the respondent are the real brothers

and the respondent hatched a conspiracy and with a fraudulent intention

got a forged Will dated 12.06.2010 prepared in the name of their father-

Madan Lal Khajuria and as per said forged Will, the whole of the

property has been bequeathed to the respondent only. It is further stated

that the Will was prepared by the respondent in a deceitful manner on

12.06.2010 and the respondent has managed to append the signatures of

one Chet Ram on the said Will dated 12.6.2010 when admittedly, the

said Chet Ram passed away on 14.04.2010 i.e. two months before the

preparation of the Will.

3. The petitioner has impugned the order of discharge passed by the

learned trial court in favour of the respondent, on the ground that the

learned trial court has prejudged the controversy as it is settled law that

the trial court, while considering issue of charge/discharge, has limited

jurisdiction to sift the evidence and cannot critically appreciate the

evidence while considering issue of charge/discharge.

4. Mr. Rajat Sudan, learned counsel for the petitioner has vehemently

argued that the learned trial court had virtually appreciated the evidence

while discharging the respondent and in fact the trial court had the

limited jurisdiction to sift the evidence and could not have critically

appreciated the evidence, that could have been done only at the time of

final appreciation of the evidence.

5. Per contra, Mr. Sachin Sharma, learned counsel for the petitioner has

vehemently argued that the petitioner has filed a civil suit against the

respondent whereby the petitioner has impugned the validity as well as

legality of the Will and further that the State is not a party in the

petition, so this petition is required to be dismissed on this score only

and the petitioner has no right to file revision.

6. Heard and perused the scanned record of the trial court.

7. From the record, it is revealed that the petitioner had filed an

application before the Senior Superintendent of Police, Udhampur on

08.07.2014 in which it was stated that the father of the parties, namely,

Madan Lal Khajuria besides having two sons i.e. parties herein, also

had two daughters namely, Sunita Sharma and Sandhya Sharma, who

never laid any claim to the property of the father. It was also stated that

father of the parties had given part of his landed property to the

petitioner as well as to the respondent. It was alleged that the

respondent after hatching conspiracy with the friends prepared a

fictitious Will dated 12.06.2010 in the name of his father in which it

was stated that his father had desired to give the land mentioned in the

Will falling under khasra numbers as detailed in the Will to the

respondent exclusively. It was also stated that the signatures of the

father on the Will were forged and Chet Ram had expired on

14.04.2010 i.e. two months earlier than the date of the preparation of

the said Will.

8. On the basis of the complaint of the petitioner, FIR for commission of

offences under sections 420, 467, 468 and 471 RPC was registered

against the respondent. During the course of investigation, the

Investigating Officer seized the alleged Will dated 12.06.2010 from the

possession of the respondent. The Investigating Officer also obtained

admitted handwriting documents of the deceased testator. During the

course of the investigation, it was established that Chet Ram had

already died on 14.04.2010 whereas the Will in question was allegedly

prepared on 12.06.2010. Further another witness Pawan Kumar too had

expired on 04.01.2017. The statement of the only witness who was alive

namely, Raj Gupta was recorded under section 164-A CrPC and he

disclosed that he had put these signatures on the alleged Will at the

instance of the respondent who met him in the court where the

respondent asked him to sign the document that was in Urdu claiming

to be the Will of his father. During the course of investigation, it was

established that the alleged Will was a forged document as the alleged

signatures of the testator namely, Madan Lal did not match with the

admitted signatures on the documents and charge sheet for commission

of abovementioned offences was filed against the petitioner.

9. The learned trial court after hearing the arguments from both the sides,

discharged the respondent for commission of offences under sections

420, 467, 468 and 471 RPC on the ground that the Investigating Officer

did not obtain the signatures of the respondent and compared the same

with the signatures on the Will and further that no effort was made by

the respondent to use the said forged Will as the Investigating Officer

did not collect any evidence on record to show that the respondent used

the Will for the purpose of attestation of mutation and not even a single

paper has been procured from the Revenue Department.

10. From the record, it is evident that the Will is forged in view of the

opinion of the FSL dated 21.11.2016 in which it is stated that the

signatures of Madan Lal on the Will marked as Q1 does not tally with

the admitted signatures stamped and marked as A1 to A7 so from the

opinion of the FSL expert, it is evident that the Will did not carry the

signatures of the father of the parties. The learned trial court discharged

the respondent on the grounds that there is nothing on record to

demonstrate that the respondent forged the signatures of his father and

that he used the said Will for the purpose of getting any benefit as no

evidence was collected from the revenue authorities.

11. From the above findings, it is evident that the Investigating Officer has

failed in his duty to arrive at positive finding as to whether the

respondent has forged the Will and has obtained any benefit pursuant to

that Will. In fact it was obligatory on the part of the Investigating

Officer to have obtained the specimen handwriting of the respondent for

the purpose of comparing it with the signatures appended upon the Will

and also the Investigating Officer was under obligation to obtain

requisite record from the Revenue Department as to whether the

respondent had obtained any benefit out of the Will particularly when

admittedly the Will was recovered from the possession of the

respondent.

12. In the instant case, in order to ascertain truth it is necessary compare the

signatures of the respondent and with the forged signatures and also to

find out from the revenue authorities as to whether the forged Will has

been used by the respondent or not and the trial court could not have

discharged the respondent in view of the positive finding of the

Investigating Officer that the Will was forged and the same was

recovered from the possession of the respondent. This is a matter that

requires to be investigated further and as such the order of discharge

passed by the learned trial court is not sustainable.

13. The contention of Mr. Sachin Sharma that the State now the Union

Territory has not been arrayed as party and as the challan has been filed

by the then State, so the petitioner has no locus standi to file the present

petition. It is true that the petitioner should have arrayed the

State/Union Territory as party to the present petition but that is not

going to affect the merits of the case. It requires to be noted that the FIR

was registered at the behest of the petitioner and it was the petitioner

who was the aggrieved party and it is well settled that the complainant

can challenge the order of discharge of the accused. So, there is no

force in the contentions of the respondent's counsel, the same are

rejected.

14. In view of the aforesaid facts and circumstances, order of discharge

dated 24.12.2018 is set aside and the matter is remanded back to the

trial court. The Investigating Officer is directed to further investigate

the matter in terms of the observations made by this Court hereinabove

and file a supplementary report before the learned trial court within a

period of three months from the date a copy of this order is made

available to the Station House Officer/Investigating Officer.

15. Copy of this order be sent to SHO Udhampur for compliance.

(Rajnesh Oswal) Judge JAMMU 29.10.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No