Punjab-Haryana High Court
Kapila Sharda vs State Of Punjab And Others on 11 March, 2024
Neutral Citation No:=2024:PHHC:038968
2024:PHHC:038968
262 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-23151-2017 (O & M)
Date of decision: 11.03.2024
KAPILA SHARDA
...PETITIONER
V/S
STATE OF PUNJAB AND OTHERS
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Ajit Singh Sodhi, Advocate
for the petitioner.
Mr. Rishabh Singla, AAG, Punjab.
Mr. Kuldip Sanwal, Advocate
for respondent Nos.4 to 6.
Mr. Umesh Kumar Kanwar, Advocate
for respondent No.7.
****
HARPREET SINGH BRAR J. (ORAL)
The petitioner has approached this Court, by filing present petition
under Section 482 of the Code of Criminal Procedure, seeking quashing of the
impugned judgment dated 23.07.2015 passed by learned Chief Judicial
Magistrate, Fazilka, in criminal case bearing No.46-1 of 11.06.2014, vide
which, the application moved by the petitioner under Section 156(3) Cr.P.C.
was dismissed as well as the impugned order dated 03.12.2016, passed by
learned Additional Sessions Judge, Fazilka, in the revision petition bearing
No.135 of 04.08.2015 filed by the petitioner, vide which, said revision petition
was also dismissed. Additional prayer is made for issuance of directions to the
concerned police for registration of FIR against respondent Nos.3 to 7, under
Sections 406, 419, 420, 467, 468, 471 and 120-B of IPC or any appropriate
Sections as deemed appropriate.
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FACTUAL MATRIX
2. The facts, in brief, are that the petitioner is the daughter of
respondent No.4, namely, Mahabir Parshad Sharda, grand-daughter of
respondent No.3, namely, Dhanpati Devi, sister of respondent No.5, namely,
Basant Kumar, whereas respondent No.6, namely, Saroj Sharda is the sister-in-
law of the petitioner. Respondent Nos.3 to 6 are the members of one family and
residing under one roof having one kitchen in Fazilka. The petitioner is a
divorcee lady residing in Malegaon District Nasik, which is at a distance of
about 1800 kms. from Fazilka, for the past 12 years with her ten-year old
daughter without any support from her family. The petitioner, being grand-
daughter of late Sh. Sagar Mal Sharda, claims to have a legal right in the Joint
Hindu Undivided Ancestral Property, from her birth as the legal right is
conceived in her favour, with her conception and being born from the womb of
late Smt. Kanta Devi, with the lions of respondent No.4-Mahabir Parshad
Sharda son of Sh. Sagar Mal Sharda. By virtue of her birth, the petitioner
reserves a legal right in the Joint Hindu Family property, left by her
grandfather Sh. Sagar Mal Sharda, at the time of his death. Allegedly, in order
to take away the right of the petitioner, respondent Nos.3 to 6 got prepared a
Will dated 10.11.1989, against the wishes of the testator Sh. Sagar Mal Sharda
but even as per the aforesaid Will, only 1/4th share of one of the suit properties,
i.e., Kothi No.3889 Farsh No.14, Fazilka fell into the hands of respondent No.3
Dhanpati Devi whereas 3/4th share remains stated to be of Hindu Undivided
Family property. Respondent No.3 even filed an application for probate, on the
basis of the aforesaid Will, before the concerned Civil Court but the same was
not allowed qua the properties in dispute. Acting upon the Will dated
10.11.1989 with a mala fide intent, respondent No.3-Dhanpati Devi sold off
1/4th share out of the disputed property to respondent No.5-Basant Kumar
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Sharma on 28.09.1994, vide a registered sale deed. However, on the very next
day, respondent No.3-Dhanpati Devi again sold another 1/4th share out of the
same property to respondent No.4-Mahabir Parshad Sharda. Again, after 10
days, respondent No.3-Dhanpati Devi sold another 1/4th share out of the same
property to Basant Kumar Sharda, vide sale deed dated 10.10.1994 and the
finally sold the last 1/4th share to respondent No.6-Saroj Sharda, vide registered
sale deed dated 03.08.2005. Thereby, respondent No.3, despite being the owner
of only 1/4th share of the disputed property, as per the aforesaid Will,
eventually sold off the entire property, after conspiring with other private
respondents, in order to defeat the rights of the petitioner, in the suit property.
Four different sale deeds in total were executed one after the other only to
perpetuate a fraud upon the petitioner. Allegedly, even respondent No.7,
namely, Kanwar Narinder Singh, being the Sub-Registrar and despite being in
position to easily see the fraud being committed with the petitioner, willfully
and for extraneous considerations chose to ignore the same. Application in
regard to the aforesaid fraud was moved to the concerned police, by the
petitioner but the police declined to take any action. The petitioner, thereby,
approached this Court, by way of a previous petition filed under Section 482
Cr.P.C. bearing No. CRM-M-1936-2014, seeking directions to the concerned
police for registration of an FIR against the private respondent and the same
was disposed of with liberty granted to the petitioner to avail appropriate
remedy in accordance with law. In consequence, the petitioner filed the
complaint (supra) under Section 156(3) Cr.P.C.
3. Learned trial Court, after appraisal of the preliminary evidence on
record, dismissed the complaint (supra), filed by the petitioner vide order dated
23.07.2015, by holding that sufficient grounds for proceeding against the
private respondents are not made out.
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4. Aggrieved by the above-said order, the petitioner preferred a
revision petition before the Court of learned Additional Sessions Judge,
Fazilka, which was dismissed being devoid of any merit vide impugned order
dated 03.12.2016. Hence, the petitioner has approached this Court by way of
the present petition.
CONTENTIONS
5. The learned counsel for the petitioner inter alia contends that
respondent no.4, being the Karta of the HUF, in connivance with respondent
Nos.3, 5 & 6 and in lieu of the false, fabricated and forged Will dated
10.11.1989, sold off substantial share of the suit properties, in order to avoid
giving any rightful share in the said property, to the petitioner in anticipation of
any adverse order being passed against them, in the civil suit for declaration
and injunction filed by the petitioner, wherein, she has claimed her share as a
coparcener in the suit properties. It is further submitted that respondent Nos.3
to 6 are living in a joint family and have one address but still four different sale
deeds qua the said property were executed, one after the other only to
perpetuate fraud upon the petitioner. He further submits that vide the aforesaid
Will, respondent No.3-Dhanpati Devi, being the wife of the testator, inherited
1/4th share in another suit property, i.e., Nohra 4321, Farsh No.14, Fazilka, but
illegally alienated 3/4th share of the said property vide sale deed dated
23.09.1994 to her grandson, i.e., respondent No.5, who himself is one of the
attesting witnesses of the said Will and again sold off the remaining 1/4th share
vide sale deed dated 10.08.2004 to him. He further submits that all the
beneficiaries/vendees of all six sale deeds executed by Dhanpati Devi, clearly
knew that they were committing fraud. Learned counsel for the petitioner
further submits that respondent No.7 was the Sub-Registrar, who executed 3 of
the above-said sale deeds but willfully neglected the fraud committed by
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respondent Nos.3 to 6.
6. Learned counsel for the petitioner further submits that the learned
trial Court has wrongly held that the property in dispute sold before 2005 could
not be held to be joint HUF property and has also wrongly held that the matter
is civil in nature, since there the fraud committed by the private respondents is
clear from the above-mentioned transactions qua the suit property.
7. Per contra learned counsel for the respondent Nos.3 to 6, at the
outset, submits that the petitioner is eligible to get her share from the ancestral
property of her father-respondent No.4 after the amendment of 2005, in the
Hindu Succession Act, 1956, but her father is still alive and not from the self-
earned property of her grandfather (testator) who bequeathed whole of his self-
earned property in the name of his wife-respondent No.3 in 1989 and passed
away in 1990. The testator of the above-said Will dated 10.11.1989, Sh. Sagar
Mal Sharda, i.e., the grandfather of the petitioner, died in 1990 and the
petitioner is claiming her right through her father respondent No.4, namely,
Mahabir Parshad Sharda, who is alive which means that the petitioner has no
locus standi to challenge the above-mentioned Will of her grandfather. He
further submits that the petitioner is claiming her right of inheritance on the
basis of the amendment made in 2005, in the Hindu Succession Act, 1956 but
the amended provisions were prospective in nature and not retrospective. Since
the testator, whose succession the petitioner is claiming, died in 1990, the
petitioner cannot invoke the amended provisions in the present case and thus,
the same is liable to be dismissed.
8. Learned counsel for respondent Nos.3 to 6 further submits that
admittedly, as per para no.8 of the judgment passed by learned trial Court, civil
litigation between the parties with regard to the above-said sale deeds as well
as the Will is pending before the concerned Civil Court and the petitioner is
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constantly trying to convert a civil matter into a criminal one in order to arm-
twist the private respondents.
9. Learned counsel for respondent No.7, namely, Kanwar Narinder
Singh, the Sub-Registrar at the time of execution of the above-said sale deeds,
reaffirms the submissions made by learned counsel for respondent Nos.3 to 6
and further submits that the petitioner has made absolutely bald allegations
against the respondents and the learned trial Court, after appreciating the
preliminary evidence of the petitioner-complainant, did not find any substance
in the allegations made by her and thereby, correctly dismissed her complaint
(supra). It is further contended that sanction under Section 197 Cr.P.C. was not
sought by the petitioner, as respondent No.7 acted solely in discharge of his
official duty.
10. Learned state counsel submits that the learned Courts below have
correctly appreciated the evidence on record before passing the judgments
under challenge in the present case and thus, do warrant any interference by
this Court.
ANALYSIS & OBSERVATION
11. After giving my thoughtful consideration to the submissions put
forth by all sides and on careful perusal of the material on record, this Court is
inclined to accept the submissions made by the learned counsel for the
respondents. A careful perusal of the material on record shows that the
petitioner has miserably failed to prove that the above-said Will was forged or
fabricated by the respondents. The petitioner did not examine any witness, in
her preliminary evidence, to prove forgery or impersonation. As the petitioner
has failed to prove the allegation of forgery, then cheating also cannot be
proved and hence, it cannot be said that the petitioner was ever deceived by the
respondents. Furthermore, the petitioner failed to produce any revenue record
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or other relevant document to show that the property qua which she is claiming
her share is actually a Hindu Joint Family property. Hence, the intention to
cheat from the very inception appears to be missing in the present case.
12. Pertinently, it is important to mention that as per the proviso to
Section 6 of the Hindu Succession Act, 1956, the alienation of property, which
has taken place before 20.12.2004, is not affected by the amendment made in
the same in 2005. In the case at hand, the testator-Sh. Sagar Mal Sharda died in
1990 and all the above-mentioned sale-deeds have been executed by the year
2005 at the latest. As far as respondent No.7 is concerned, it appears that he
had acted in discharge of his official duty but previous sanction as per Section
197 Cr.P.C., before involving him in the present case, was not sought by the
petitioner.
13. Moreover, the petitioner herself has admitted before the learned
trial Court that a civil litigation was initiated by her against the respondents
with respect to the above-mentioned sale deeds executed on the basis of the
allegedly forged Will 10.11.1989. It is settled law that the recourse to inherent
power of under Section 482 CrPC can be adopted to ensure that criminal
proceedings are not allowed to be used as weapons of harassment.
Undoubtedly, the existence of pending civil suit between the petitioner and the
respondents before a competent civil Court makes it clear that the current
dispute is essentially of civil nature and the petitioner has already taken
recourse to the civil remedy available. In the considered opinion of this Court,
the criminal proceedings launched by the petitioner cannot be sustained in the
facts and circumstances of the present case.
14. A two Judge bench of the Hon'ble Supreme Court in Paramjeet
Batra v. State of Uttarakhand & ors (2013) 11 SCC 673, speaking through
both Justice Aftab Alam and Justice Ranjana P. Desiai, has held as under:
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"7. While exercising its jurisdiction under section 482 of the Code
the High Court has to be cautious. This power is to be used
sparingly and only for the purpose of preventing abuse of the
process of any court or otherwise to secure ends of justice.
Whether a complaint discloses a criminal offence or not depends
upon the nature of facts alleged therein. Whether essential
ingredients of criminal offence are present or not has to be judged
by the High Court. A complaint disclosing civil transactions may
also have a criminal texture. But the High Court must see whether
a dispute which is essentially of a civil nature is given a cloak of
criminal offence. In such a situation, if a civil remedy is available
and is, in fact, adopted as has happened in this case, the High
Court should not hesitate to quash criminal proceedings to prevent
abuse of process of court."
15. A similar view was taken by a Two Judge Bench of the Hon'ble
Supreme Court in Vesa Holdings P. Ltd. v. State of Kerala (2015) 8 SCC 293.
Speaking through Justice C. Nagappa, it was observed as follows:
"9. It is true that a given set of facts may make out a civil wrong as
also a criminal offence and only because a civil remedy may be
available to the complainant that itself cannot be a ground to
quash a criminal proceeding. The real test is whether the
allegations in the complaint disclose the criminal offence of
cheating or not. In the present case there is nothing to show that at
the very inception there was any intention on behalf of the accused
persons to cheat which is a condition precedent for an offence
under Section 420 I.P.C.In our view the complaint does not
disclose any criminal offence at all. Criminal proceedings should
not be encouraged when it is found to be malafide or otherwise an
abuse of the process of the court. Superior courts while exercising
this power should also strive to serve the ends of justice. In our
opinion, in view of these facts allowing the police investigation to
continue would amount to an abuse of the process of court and the
High Court committed an error in refusing to exercise the power
under Section 482 Criminal Procedure Code to quash the
proceedings."
CONCLUSION
16. All of the above-mentioned facts clubbed together establish that
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the observations recorded by the learned trial Court as well as the learned
Court of revision are valid and thus, liable to be upheld.
17. In view of the above discussion, the present petition is dismissed
on merits. Pending miscellaneous application(s), if any, shall also stand
disposed of accordingly.
(HARPREET SINGH BRAR)
March 11, 2024 JUDGE
manisha
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
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