[Cites 24, Cited by 0]
Madhya Pradesh High Court
Smt Asha Shivhare vs Pradeep Shivhare on 16 December, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 11th OF DECEMBER, 2025
MISC. CRIMINAL CASE No. 9270 of 2024
SMT ASHA SHIVHARE AND OTHERS
Versus
PRADEEP SHIVHARE
Appearance:
Shri Vijay Dutta Sharma - Advocate along with Shri Kamal Mangal -
Advocate for the petitioners.
Shri Sameer Kumar Shrivastava - Advocate for the respondent.
RESERVED ON :- 11/12/2025
DELIVERD ON :- 16/12/2025
ORDER
The present Miscellaneous Criminal Case under Section 482 of the
Code of Criminal Procedure, 1973, has been filed by the petitioners No.1 to
3, namely, Smt. Asha Shivhare, Surendra Rai and Ravindra Rai seeking
quashment of the order dated 01.02.2024 passed by the learned First
Additional Sessions Judge, Gwalior in Criminal Revision No.474 of 2023
whereby the order dated 05.10.2023 passed by the learned Judicial
Magistrate First Class, Gwalior in RCT No.6161/2023 taking cognizance
against the petitioners on a private complaint filed by the respondent for
offences punishable under Sections 420, 467, 468 and 120-B of the Indian
Penal Code, 1860 was affirmed.
Short facts of the case are that the respondent/complainant Pradeep
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Shivhare filed a private complaint on 11.07.2022 before the Court of Judicial
Magistrate First Class against Asha (petitioner No.1), Praveen, Naveen
Shivhare, Surendra Rai (petitioner No.2), Ravindra Rai (petitioner No.3) and
Arun Vajpayee, alleging that the complainant's father, late Chironji Lal, was
a reputed businessman. Apart from his father, the complainant's family
consists of his mother Asha Shivhare (petitioner No.1), younger brothers
Praveen and Naveen Shivhare, and sister Meenu Shivhare. Due to old age,
his father was unable to move around, and taking advantage of the same, the
complainant's brothers Praveen and Naveen developed dishonest intention
regarding the father's property. Exploiting his father's frail condition, both
brothers, in collusion with Surendra Rai (petitioner No.2) and Ravindra
Rai (petitioner No.3) as witnesses, allegedly prepared a forged Will, shown
to have been notarized by advocate Arun Vajpayee. Upon obtaining a copy
of the said Will from the Office of Municipal Corporation and having it
examined by a handwriting expert, the complainant allegedly discovered that
his brothers, in connivance with relatives, had prepared a forged Will with
intention of usurping the father's property. In connection with the complaint,
the statements of Pradeep Shivhare, Rupak Kashyap, and Sharad Nagar were
recorded.
After hearing the arguments of both the parties on the said complaint,
learned Judicial Magistrate First Class, Gwalior found sufficient grounds to
proceed against the petitioners alongwith co-accused Arun Vajpayee, and
took cognizance for the offences under Sections 420, 467, 468 and 120-B of
the IPC vide order dated 05.10.2023. Being dissatisfied with the aforesaid,
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the petitioners preferred a criminal revision before the learned First
Additional Sessions Judge, Gwalior which was also dismissed vide order
dated dated 01.02.2024. Hence, the present petition.
Learned counsel for the petitioners had submitted before this Court
that the petitioners have no direct or indirect connection with the allegations
levelled by the complainant, and the entire prosecution story is inherently
improbable, fabricated and inconsistent with the factual scenario, as in view
of the principles laid down by the Hon'ble Supreme Court in the matter of
Mohammad Wajid & Another vs. State of U.P., 2023 Cr.L.R. 1076 (SC)
(para 30), where allegations are inherently improbable and do not disclose
any offence, the High Court must quash the proceedings to prevent
miscarriage of justice.
It was further submitted that the complainant had already instituted a
civil suit on 14.01.2022 seeking declaration of nullity of the Will dated
17.01.2020, whereas the private complaint was subsequently filed on
11.07.2022 by suppressing this material fact. The criminal action is a
deliberate attempt to give a civil dispute a criminal flavour, which the
Hon'ble Supreme Court has strongly deprecated in the matter of R. Nagender
Yadav vs. State of Telangana, 2022 LiveLaw (SC) 1030, holding that
criminal proceedings initiated during pendency of civil proceedings on the
same issue amount to abuse of process.
It was further submitted that the Hon'ble Supreme Court in the matter
of Syed Askari Hadi Ali Augustine Imam vs. State (Delhi Admn.), Crl. A.
No. 416/2009 (decided on 03.03.2009), has held that where civil proceedings
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can adjudicate allegations of forgery, criminal prosecution should not be
permitted to continue and such actions are often intended only to harass or
pressurize the opposite party. The present case is precisely of such nature.
It was further submitted that the trial court took cognizance solely on
the opinion of a handwriting expert, which is only an opinion under Section
45 of the Evidence Act and not a substantive evidence. The Hon'ble Supreme
Court in the matter of Mohammad Wajid & Another vs. State of U.P., 2023
Cr.L.R. 933 (SC) (para 13), had held that criminal proceedings cannot rest
solely on doubtful or inconclusive expert opinion, particularly when civil
disputes are pending.
It was further submitted that the so-called admitted signatures relied
upon by the expert were not duly authenticated, are susceptible to
manipulation, and the police in its inquiry had found no material supporting
allegations of forgery. The failure of the Courts below to consider these
material aspects vitiates the impugned orders and attracts the intervention of
this Court as recognized in the matter of Krishnan & Another vs.
Krishnaveni & Another, reported in (1997) 4 SCC 241, where the Hon'ble
Supreme Court held that inherent powers must be exercised where lower
courts have ignored material facts causing miscarriage of justice.
It was further submitted that the ingredients of the offences under
Sections 420, 467, 468, and 120-B IPC are wholly absent, as there is no
allegation of dishonest inducement, forgery, fabrication, or conspiracy. As
has been held by the Hon'ble Supreme Court in the matters of Mohammad
Ibrahim vs. State of Bihar, reported in (2009) 8 SCC 751, and Sheila
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Sebastian vs. R. Jawaharaj, reported in (2018) 7 SCC 581, forgery can be
attributed only to the maker of a forged document. No such allegation exists
against the present petitioners.
It was further submitted that petitioner No.1 is merely the beneficiary
of the Will and was not present at the time of its execution, while petitioners
No.2 and 3 are merely attesting witnesses. In view of the above precedents
[Mohammad Ibrahim (supra) and Sheila Sebastian (supra)], no criminal
liability can be fastened on a beneficiary or attesting witness in the absence
of specific acts of fabrication.
It was further submitted that the revisional Court relied upon case law
relating to framing of charge, which is wholly irrelevant at the stage of
cognizance, thereby misapplying the law and rendering its order
unsustainable. The Hon'ble Supreme Court in the matter of Urmila Devi &
Others vs. Balram & Another, Criminal Appeal No. 3300 of 2025 [2025
INSC 915], has held that where civil disputes exist and allegations of forgery
are yet to be adjudicated, criminal proceedings should not be permitted to
continue.
It was further submitted that on the same set of facts, two proposed
accused persons--Praveen Shivhare and Naveen Shivhare--have already
been dropped from the complaint. The continuance of proceedings against
the present petitioners, therefore, violates principles of parity and equal
treatment and amounts to arbitrary exercise of jurisdiction.
It was further submitted that continuation of criminal proceedings
would amount to clear abuse of the process of the Court, especially when
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even accepting the prosecution case at face value, no offence is disclosed.
This principle has been reiterated by this High Court in the matter of
Shrichand Bhau & Anr. vs. State of M.P., M.Cr.C. No. 3315 of 2023, 2023
SCC OnLine MP 2077, where proceedings based on civil disputes were
quashed to prevent harassment and injustice.
It was further submitted that the inherent jurisdiction of this Court
under Section 482 Cr.P.C. is required to be exercised to secure the ends of
justice and prevent misuse of criminal process, as repeatedly emphasized in
the above judgments of the Hon'ble Supreme Court.
In light of the above submissions, it is prayed that the entire criminal
proceedings pending in R.C.T. No. 6161/2023 before the Court of Judicial
Magistrate First Class, Gwalior (M.P.) and the order taking cognizance dated
05.10.2023, affirmed by the judgment dated 01.02.2024 passed in C.R.R. No.
474/2023 by the learned First ASJ, Gwalior (M.P.) as well as all
consequential proceedings arising therefrom, so far as they relate to the
present Petitioners be quashed and set aside.
Per contra, learned counsel for the respondnet had submitted before
this Court that the present petition under Section 482 Cr.P.C. is wholly
misconceived and deserves dismissal, as the complaint discloses clear
allegations of forgery and cheating, duly supported by corroborative
material, which unmistakably constitute cognizable offences requiring full
trial. The complaint specifically narrated that the petitioners, acting in
connivance with each other, fabricated a false and forged Will of late Shri
Chironjilal for the purpose of illegally appropriating the family property and
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the participation of the petitioners is clearly delineated. The petitioner No.1 is
the principal beneficiary of the fabricated Will, and petitioners No.2 and 3
are the attesting witnesses, who had allegedly lent active support in giving
authenticity to a forged document and their such role attribution satisfies the
threshold requirement for taking cognizance.
It was further submitted that the handwriting expert's report
unequivocally stated that the signatures appearing on the disputed Will do
not match the admitted signatures of late Shri Chironjilal and this expert
opinion lends strong prima facie corroboration to the allegations of
fabrication. The objection raised by the petitioners regarding the
conclusiveness of expert opinion is premature, as the probative value and
weight of such evidence is to be tested at the stage of trial and not in
proceedings under Section 482 Cr.P.C. At this stage, the Court is not
required to conduct a detailed appreciation of evidence or embark on a mini-
trial. The Hon'ble Supreme Court, in P. Swaroopa Rani vs. M. Hari Narayan
alias Hari Babu, reported in (2008) 5 SCC 765 has explicitly held that the
existence of a civil dispute does not preclude criminal prosecution where the
allegations disclose a criminal offence, and that the High Court should not
interfere under Section 482 Cr.P.C. merely because civil remedies are also
available. The Court further clarified that the complaint must be permitted to
proceed if the allegations, taken at face value, constitute an offence.
It was further submitted that the pendency of the civil suit filed by the
complainant challenging the Will does not constitute a legal bar to criminal
proceedings and where an act amounts to both a civil wrong and a criminal
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offence, both remedies can proceed simultaneously. Forgery of a
testamentary instrument is a serious criminal act affecting not only private
rights but also the sanctity of public documents and the justice delivery
system. It is therefore incorrect to suggest that the complaint was filed
merely to give a criminal colour to a civil dispute. The allegations in the
present case go to the root of the document itself that it is fabricated and this
squarely attracts the penal provisions invoked. This position has also been
reiterated by this Hon'ble Court in Radhika Upadhyay (Sharma) vs. State of
M.P. & Others, W.P. No.12349 of 2025, where the Court held that the
pendency of civil litigation does not dilute the maintainability of criminal
proceedings where serious allegations such as forgery are involved and
where prima facie material exists.
It was further submitted that the petitioners' reliance on judgments
such as R. Nagender Yadav (supra), Syed Askari Hadi Ali Augustine Imam
(supra), Mohammad Ibrahim (supra), and Sheila Sebastian (supra) is
misplaced, as those decisions involved situations where the essential
ingredients of the alleged offences were absent or where the allegations did
not disclose any prima facie criminality, but in the present case, the
allegations are specific, clear, and supported by material including expert's
opinion. The petitioners are not merely incidental parties; their involvement
is direct, conscious, and integral to the alleged forgery. The revisional court
has already considered the entire material and affirmed the order of
cognizance, and no perversity, irregularity, or illegality has been
demonstrated to warrant interference under Section 482 Cr.P.C., which is to
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be exercised sparingly and only in rare cases to prevent miscarriage of
justice.
It was further submitted that the dismissal of the complaint against two
other proposed accused does not render the proceedings against the present
petitioners unsustainable, as criminal liability is individual and depends upon
the specific acts of each accused. The present petition, in essence,
represented an attempt to scuttle the prosecution at the very inception and to
obstruct the process of law. The well-settled principles laid down in State of
Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335, squarely apply and the
present case does not fall within any of the categories warranting quashing.
The allegations, if accepted at face value, unquestionably constitute
cognizable offences and merit full trial.
In these circumstances, it was submitted that the petition under Section
482 Cr.P.C. be dismissed in limine, and the criminal proceedings be
permitted to continue in accordance with law, so that the truth of the
allegations may be tested through trial, evidence, and cross-examination.
Heard counsel for the parties and perused the record.
Having given anxious consideration to the rival submissions advanced
on behalf of the parties and upon a meticulous scrutiny of the material placed
on record, this Court finds as under:
The allegations in the private complaint filed by the
respondent/complainant arise out of an intra-family dispute relating to the
validity of a Will, which is already the subject-matter of a comprehensive
civil suit pending before the competent civil court and the issues concerning
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the genuineness, due execution, and validity of a testamentary instrument are
essentially civil in nature and lie squarely within the jurisdiction of the civil
court, which is equipped to adjudicate such matters upon full-fledged
evidence.
A close reading of the complaint and the statements recorded under
Sections 200 and 202 Cr.P.C. reveals no specific or cogent allegation against
Petitioners No.1 to 3 amounting to forgery or fabrication of the Will.
Petitioner No.1 is only the beneficiary of the said Will and her presence at
the time of execution is not alleged. Petitioners No.2 and 3 have been
implicated solely on account of having attested the Will. Mere attestation of
a document, even if later rendered questionable, does not by itself fulfill the
necessary ingredients of the offences under Sections 467, 468 or 420 IPC
without clear, specific, and foundational averments demonstrating dishonest
or fraudulent intent at the inception. Such allegations are conspicuously
absent from the complaint.
A careful analysis of the allegations vis-à-vis Sections 420, 467, 468,
and 120-B IPC demonstrates that the present case does not fall within the
ambit of these provisions:
Section 420 IPC (Cheating and dishonest inducement):
Requires fraudulent inducement intending wrongful gain or
loss. Petitioners No.1 to 3 are neither alleged to have induced
anyone dishonestly nor participated in any act of deception.
Petitioner No.1 is merely the beneficiary, and Petitioners
No.2 and 3 are attesting witnesses. Mere attestation or benefit
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does not constitute dishonest inducement.
Section 467 IPC (Forgery of valuable security, will,
etc.): Requires active fabrication or alteration. The petitioners
are not alleged to have created, altered, or forged the Will.
No material or specific act of forgery is attributed to them.
Section 468 IPC (Forgery for the purpose of cheating):
Presupposes both forgery and intent to cheat. There is no
allegation that Petitioners No.1 to 3 conspired to cheat
anyone; mere attestation or benefit is insufficient to establish
mens rea for cheating.
Section 120-B IPC (Criminal conspiracy): Requires an
agreement to commit an illegal act. The complaint does not
allege any agreement or meeting of minds among the
petitioners to commit forgery or cheating.
The allegations essentially pertains to the claim that the disputed
signatures on the Will (marked S-1 to S-10) were not authored by the
testator. The private expert opined, on the basis of enlarged photographs and
transparency sheets, that the signatures appeared to have been produced by
following a single model signature, resulting in perfect superimposition an
occurrence not ordinarily possible in genuine signatures. Even assuming the
correctness of the said opinion, the report neither attributes the act of
fabrication to petitioners No.1 to 3 nor establishes their direct or indirect
involvement in the alleged forgery. The expert opinion, at best, raises a
disputed question of fact which is already under consideration before the
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civil court.
The learned Magistrate had relied disproportionately upon the opinion
of a private handwriting expert to take cognizance. It is well settled that an
expert's opinion is merely an opinion under Section 45 of the Evidence Act
and cannot form the sole substantive basis for launching criminal
prosecution, particularly when the authenticity of the so-called admitted
signatures is itself disputed. The Hon'ble Supreme Court, in Mariam
Fasihuddin & Another v. State by Adugodi Police Station & Another, 2024
INSC 49 (Criminal Appeal No. 335 of 2024), has categorically held that
reliance solely on a private handwriting laboratory's report, especially when
the State FSL report is inconclusive or absent, is "frail, unreliable, unsafe,
untrustworthy and imprudent." The ratio applies with full force to the
present case and goes to the root of the prosecution. The revisional court,
while affirming the cognizance order, also failed to consider this
fundamental legal infirmity.
Further, the Apex Court in the matter of Fakhruddin v. State of
Madhya Pradesh, AIR 1967 SC 1326 , has way-back held that handwriting
expert opinion, under Sections 45 and 47 of the Evidence Act, is merely
opinion evidence and cannot be treated as conclusive proof and the Court
emphasized that reliance solely on expert opinion is risky, and the Court
must independently examine and compare admitted and disputed writings
before acting upon the opinion. In paras 10 and 11, the Apex Court has held
as under:
"(10) Evidence of the identity of handwriting receives
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treatment in three sections of the Indian Evidence Act. They
are Sections 45, 47 and 73. Handwriting may be proved on
admission of the writer, by the evidence of some witness in
whose presence he wrote. This is direct evidence and it is
available the evidence of any other kind is ren-dered
unnecessary. The Evidence Act also makes relevant the
opinion of a handwriting expert (S.45) or of one who is
familiar with the writing of a person who is said to have
written a particular writing. Thus besides direct evidence
which is of course the best method of proof, the law makes
relevant two other modes. A writing may be proved to be in
the handwriting of a particular individual by the evidence of
a person familiar with the hand-writing of that individual or
by the testimony of an expert competent to the comparison of
hand-writings on a scientific basis. A third method (S.78) is
comparison by the Court with a writing made in the presence
of the Court or admitted or proved to be the writing of the
person.
(11) Both under S. 45 and S. 47 the evidence is an
opinion, in the former by a scientific com-parison and in the
latter on the basis of familiar-ity resulting from frequent
observations and ex-perience. In either case the Court must
satisfy it-self by such means as are open that the opinion may
be acted upon. One such means open to the Court is to apply
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its own observation to the admitted or proved writings and to
compare them with the disputed one, not to become an
handwriting expert but to verify the premises of the expert in
the one case and to appraise the value of the opinion in the
other case. This comparison depends on an analysis of the
characteristics in the admitted or proved writings and the
findings of the same characteristics in large measure in the
disputed writing. In this way the opinion of the deponent
whether expert or other is subjected to scrutiny and although
relevant to start with becomes probative. Where an expert's
opinion is given, the Court must see for itself and with the
assistance of the expert come to its own conclusion whether
it can safely be held that the two writings are by the same
person. This is not to say that the Court must play the role of
an expert but to say that the Court may accept the fact proved
only when it has satisfied its own observation that it is safe to
accept the opinion whether of the expert or other witness."
Though, the aforesaid judgment is passed while hearing an appeal after
conviction, but while taking congnizance upon a private complaint also,
aforesaid analogy assumes importance.
In the present case, the trial court though had observed that certain
letters of the signatures of testator showed marked discrepancy, but that too
appears to be based upon the documents of the handwriting expert and is not
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an independent opinion, thus, reliance disproportionately on a private
handwriting expert without independent corroboration, thereby undermines
the reliability of cognizance.
In light of the above, even accepting the allegations at face value, the
ingredients of offences under Sections 420, 467, 468, and 120-B IPC are not
made out against petitioners No.1 to 3. The dispute is essentially civil,
relating to the validity of a testamentary document, and continuation of
criminal proceedings would result in abuse of process, harassment, and
oppression.
The Apex Court in the matter of R. Nagender Yadav v. State of
Telangana (supra); Syed Askari Hadi Ali Augustine Imam v. State (Delhi
Admn.), (supra); Mohammad Ibrahim v. State of Bihar, (supra); and Sheila
Sebastian v. R. Jawaharaj, (supra), has consistently held that where the facts
disclose a predominantly civil dispute and where the allegations do not
satisfy the essential ingredients of the penal offences alleged, the High Court
would be justified in exercising its inherent powers to quash the proceedings
to prevent abuse of the criminal process. In the present matter, even if the
complaint is taken at its face value and treated as wholly correct, the requisite
ingredients of offences under Sections 420, 467, 468, and 120-B IPC are not
made out against petitioners No.1 to 3. The dispute regarding the Will,
already being adjudicated in the civil suit, cannot be permitted to be given a
criminal colour, nor can the criminal process be used as an instrument to
exert pressure in a civil dispute.
Permitting the prosecution to continue would result in parallel and
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conflicting adjudications, oppressive multiplicity of proceedings, and
unnecessary harassment of the petitioners. The jurisdiction under Section
482 Cr.P.C. exists precisely to prevent such abuse and to secure the ends of
justice. This Court finds that the impugned orders dated 05.10.2023 (passed
by the learned Judicial Magistrate First Class, Gwalior in RCT No.
6161/2023) and 01.02.2024 (passed by the learned First Additional Sessions
Judge, Gwalior in CRR No.474/2023) suffer from substantial legal
infirmities inasmuch as they fail to consider the absence of prima facie
ingredients, the pendency of civil adjudication, the lack of any State FSL
report, and the reliance solely upon a private expert's opinion which the
Apex Court has held to be unsafe and unreliable.
For the foregoing reasons, this Court is satisfied that the continuation
of criminal proceedings against Petitioners No.1 to 3 would be manifestly
unjust, oppressive, and contrary to the settled principles governing the
exercise of inherent powers. Accordingly, the petition under Section 482
Cr.P.C. is allowed. The impugned orders dated 05.10.2023 and 01.02.2024
are set aside insofar as they relate to petitioners No.1 to 3. As a necessary
consequence, all proceedings arising out of RCT No. 6161/2023, pending
before the Court of Judicial Magistrate First Class, Gwalior, stand quashed
as against petitioners No.1 to 3.
(MILIND RAMESH PHADKE)
JUDGE
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Date: 2025.12.17 11:20:47 +05'30'
