Anoop Aggarwal And Others ........... ... vs State Of Uttarakhand And Others
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Uttarakhand High Court

Anoop Aggarwal And Others ........... ... vs State Of Uttarakhand And Others on 2 August, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

     HIGH COURT OF UTTARAKHAND AT NAINITAL

           Hon'ble Justice Sri Rakesh Thapliyal
         Writ Petition (Criminal) No. 812 of 2024

Anoop Aggarwal and others                        ........... Petitioners
                           Vs.
State of Uttarakhand and others                   ............Respondent

Counsel for the Petitioner: Mr. P.N. Mishra, learned Senior Advocate assisted by Mr. Alok Kumar Pandey and Mr. Lalit Sharma Counsel for the State: Mr. Akshay Latwal, learned Brief Holder Counsel for respondent no. 3: Ms. Priyanka Agarwal

Reserved for orders on: 2nd August 2024 Delivered on: 16th August 2024

Upon hearing the learned Counsel, the Court made the following order:

1. By the instant writ petition, preferred under Article 226 of the Constitution of India, the petitioners are challenging the order dated 20.09.2022 passed by the Addl. Chief Judicial Magistrate, Kashipur, District U.S. Nagar in Misc. Application No. 630 of 2021 as well as the FIR dated 23.09.2022, bearing FIR No. 0601 of 2022, registered at P.S. Kashipur District Udham Singh Nagar, wherein the petitioners have been implicated for the offences punishable under Sections 420, 467, 468 and 471 IPC.

2. Brief facts, of the case, are that Smt. Pushpa Agarwal (hereinafter referred to as respondent no. 3) given a written complaint on 18.08.2021, at P.S. Kashipur, District Udham Singh Nagar alleging that some proxy person who represented himself as Sri Mahesh Kumar Agrawal have executed 11 registered sale deeds in favour of the petitioners in which oldest

one sale deed is executed in the year 1997, 9 registered sale deeds were executed in the year 2004 and the last sale deed was executed in the year 2009. With the same self allegation, a complaint was also given to S.S.P. for registration of FIR. Since, no FIR was registered, consequently, on 20.10.2021 respondent no. 3 moved an application under Section 156(3) Cr.P.C., in the court of the Addl. Chief Judicial Magistrate, Kashipur wherein a relief was sought for registration of FIR.

3. The application preferred under Section 156(3) Cr.P.C. by respondent no. 3 was dismissed by the Addl. Chief Judicial Magistrate by order dated 30.11.2021 by observing therein that, prima facie, no offence is made out, and furthermore the allegation appears to be civil in nature.

4. Being aggrieved with the order dated 30.11.2021, respondent no. 3 approached this Court by filing writ petition being WPCRL No. 38 of 2022 and this Court by order dated 18.08.2022 set aside the order passed by the Magistrate dated 30.11.2021, and remanded the matter back to the court for re-consideration of the application afresh by discussing the documents relied upon by respondent no. 3.

5. After remanding the application, moved by respondent no. 3 under Section 156(3) Cr.P.C., the Addl. Chief Judicial Magistrate, Kashipur allowed the same on 20.09.2022 and directed for registration of FIR and pursuant thereto the FIR was registered on

23.09.2022 bearing FIR No. 0601 of 2022 at P.S. Kashipur, District Udham Singh Nagar. Being aggrieved the instant petition has been preferred.

6. Learned counsel for the petitioners submits that the entire order of the Magistrate is based upon the opinion of the handwriting expert procured by the respondent no. 3, which is enclosed with the application preferred under Section 156(3) Cr.P.C., however, before ordering for registration of FIR, the learned Magistrate has not applied its judicial mind.

7. Learned counsel for the petitioners submits that despite the order passed by this Court by judgment and order dated 18.08.2022, passed in WPCRL No. 38 of 2022, the learned Magistrate have not gone through the documents and in a cursory manner directed for registration of FIR.

8. Learned counsel for the petitioners submits that as per the directions of the High Court, the Trial Court ought to have considered the fact of the documents filed by respondent no. 3 and submits that admittedly, as it is reflected from the impugned FIR, which was registered pursuant to the order passed by the Trial Court pertains to the 11 sale deed and the oldest one was registered in the year of 1997 and last one was registered in the year 2009 and all the 11 sale deeds are registered, and, there is no such report from the office of the Sub-Registrar that these sale deeds are forged. Learned counsel argued that lodging of the

impugned FIR appears to be a glaring example of abuse of process of law which clearly reveals that with ulterior purposes and motive the impugned FIR has been lodged, though the executants (Mr. Mahesh Kumar Agrawal/husband of complainant) of all 11 sale deeds died in the year 2010, and now after almost 12 years, the FIR has been lodged.

8. Learned counsel for the petitioner submits that respondent no. 3 is the wife of the executants of all the sale deeds late Mahesh Kumar Agrawal who was in fact brother of petitioner no. 1. In order to substantiate his arguments that only with ulterior purposes and motive the impugned FIR has been lodged he submits that son of respondent no. 3 Arpit Agarwal expired on 17.06.2014, and serious allegation of murder of Arpit Agarwal was raised against petitioner no. 1 and to examine the genuineness of the allegation, a Special Investigation Team was constituted consisting of 5 senior police officials, and after thorough investigation, the petitioners were exonerated from all the charges.

He also submits that the fact about execution of all the 11 sale deeds were also very well in the knowledge of the respondent no. 3/complainant in reference of which a specific averment has been made in para '6' of the petition. Not only this, a further averment has also been made in para 7 of the petition a civil suit was filed by the son of respondent no. 3, who expired on 17.06.2024 bearing Civil Suit No. 07 of 2015, Rupali Agarwal vs. Pushpa Agarwal, under section 8 of the Guardianship and Wardship Act 1890 read with Hindu

Minority and Guardianship Act, 1956, in the court of Addl. District Judge, Udham Singh Nagar for selling the properties inherited by her from Sh. Mahesh Kumar Agarwal, and, therefore, learned counsel for the petitioners submits that it is wrong to say that respondent no. 3 was not aware about the execution of 11 sale deeds, particularly when the petitioners are co- owners of the property of respective portion in Khasra No. 316 wherein respondent no.3/complainant and her son were also co-sharers. Apart from this, he submits that inordinate delay in lodging the FIR is one of the factor to establish that the impugned FIR has been lodged with malafide intent

9. Learned counsel for the petitioners also submits that the most surprising aspect of the matter is that all the 11 sale deeds are registered in between 1997 to 2009 but none of the sale deed were challenged either by the real executants of the sale deeds who was the husband of respondent no. 3, and not only this even after death of the main executants no such civil suit was filed, seeking declaration that these sale deeds are forged and fabricated. And, now after almost 12 years from the date of the death of the main executants, his wife lodged this FIR in the year 2022, which appears to be an abuse of process of law. He submits that the learned Trial Court totally failed to apply its judicial mind while allowing the application, though earlier the 156 (3) Cr.P.C. application was rejected by order dated 30.11.2021, by observing therein that the allegation appears to be civil in nature and, prima facie, no

offence is made out. Subsequently, though, this Court in WPCRL No. 38 of 2022, remanded the matter back to the Trial Court for reconsideration, but, without examining the documents the learned Magistrate without application of mind allowed the application. Learned counsel for the petitioners submits that on close scrutiny of both the orders, i.e., earlier order dated 30.11.2021, rejecting the same application, and the subsequent impugned order passed by the learned Magistrate, it is clearly evident that while passing the subsequent order for registration of the FIR, the learned Magistrate has not applied its judicial mind at all and in a very cursory and casual manner allowed the application under Section 156(3) Cr.P.C.

10. Learned counsel for the petitioner first of all placed reliance in one of the judgment of the Hon'ble Apex Court in the case of Kishan Singh (Dead) thorugh LRS vs. Gurpal Singh and others, (2010) 8 SCC 775 in support of his arguments that there is an inordinate delay in lodging the FIR. He submits that with regard to the delay, though, no explanation has been given except that she was not aware about all these 11 sale deeds which cannot be accepted since she was fully aware about all the 11 sale deeds, which was executed by the main executants. He submits that the learned Magistrate while allowing the application completely overlooked that there is no plausible explanation about the delay in moving the application under Section 156(3) Cr.P.C. He particularly placed

reliance in para 21 and 22 of the said judgment which are being reproduced herein as under:-

"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Sahib Singh Vs. State of Haryana10].

22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. v. Maharaj Singh & Anr.11 State of Haryana Vs. Bhajan Lal & Ors.12, G. Sagar Suri v. State of U.P.13 ).

11. He further placed reliance in another judgment of the Hon'ble Apex Court in the Case of Sonia Verma and ors. vs. The State of Haryana and Ors. decided on 07.03.2024, and submits that since the allegation pertains to the registered sale deeds, therefore, remedy is always lie to approach the Civil Court but here in this case instead of approaching Civil Court, respondent no. 3 chooses to initiate criminal proceeding which is wholly unwarranted, and such practice adopted by respondent no. 3 appears to be an abuse of process of law.

12. Apart from this, the learned senior counsel for the petitioners submits that the application moved under Section 156(3) Cr.P.C., by respondent no. 3 is based

upon the experts opinion which the respondent no. 3/complainant procured from the forensic lab and in response to this learned senior counsel for the petitioners submits that the expert opinion cannot be the basis for lodging of the FIR since, the expert opinion is not binding piece of evidence. He submits that opinion of hand writing expert, which was made basis of the application moved under Section 156(3) Cr.P.C, is of 05.08.2021, that is almost after 11 years of the death of her husband, and that too in respect of only four sale deeds out of 11 sale deeds. In reference to this, it is submitted that the petitioners have also obtained the report in respect of all 11 sale deeds, referring 14 admitted specimen signatures of Late Mahesh Kumar Agrawal from a eminent hand writing expert.

13. Learned counsel for respondent no. 3 vehemently opposed the arguments of the learned counsel for the petitioners and argued that this is not a case in which FIR should be quashed. Learned Counsel for respondent no. 3 submits that forgery is evident from the sale deed. She further submits that there is no absolute bar that if the allegation appears to be civil in nature, the criminal proceedings cannot be initiated. In reference to this, she has referred various judgments viz., Syed Askari Hadi Ali Augustine Imam vs. State (Delhi Administration) and another, (2009) 5SCC 528, Trisuns Chemical Industry vs. Rajesh Agarwal and others, (1999) 8 SCC 686, Hariprasad @ Kishan Sahu vs. State of

Chattisgarh, (2024) 2 SCC 557 and Srinivas Gundluri and others vs. SEPCO Electric Power Construction Corporation and others, (2010) 8 SCC 206.

14. I have gone through the judgments relied by the learned counsel for the parties, and after taking into consideration the facts of the present case, prima facie, this Court is of the view that lodging of FIR at a highly belated stage is also very fatal and this delay cannot be ignored particularly when the allegation pertains to 11 sale deeds and the oldest one is of 1997 and the last one is of 2009, and not only this the main executants of the sale deeds was expired in 2010 and the respondent no. 3/complainant who herself is the wife of the main executants of the sale deeds moved the application under Section 156(3) Cr.P.C. after 12 years.

15. Apart from this, admittedly, the allegations are pertaining to the 11 sale deeds which are registered one and there is no such report from the office of the Sub- Registrar that these sale deeds are forged one, and once the document is registered then the presumption would be that the same is genuine until and unless the same is challenged in the competent court of law. Admittedly, in the present case these sale deeds were never been challenged in the competent court of law for seeking declaration that the same are forged one and, therefore, in absence of seeking any such declaration the criminal proceedings cannot be put in motion. In reference to this, I have gone through the judgment of

the Hon'ble Apex Court in the case of Ratan Singh & others. Vs Nirmal Gill and other, (2021) 15 SCC 300 and particularly in para 33 of the judgment which is being reproduced herein as under:-

"33. To appreciate the findings arrived at by the courts below, we must first see on whom the onus of proof lies. The record revelas that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh vs. Birbal2 . The relevant portion of the said decision reads as below: (SCC pp. 360-61, para 27) "27. There is a presumption that a registered document is validly execute. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."

In view thereof, in the present cases, the initial onus was on the plaintiff, who had challenged the stated registered documents."

Admittedly, in the present case all the 11 sale deeds are registered, and prima facie, these registered document would be valid in law and all these 11 sale deeds should be presumed to be genuine since same are registered as held by the Hon'ble Apex Court in the case of Prem Singh vs. Birbal, (2006) 5 SCC 353.

16. No doubt, once FIR has been registered the investigation should be carried on so that it comes to a logical conclusion. I have gone through all the judgments cited by the learned counsel for the respondent no. 3 but none of the judgment are applicable to the facts of the present case, particularly when none of the sale deeds were challenged in any Civil Court for seeking declaration that same are forged one. When this Court put a question to the counsel for respondent no. 3 why the suit for cancellation of sale deeds was not filed she submits that there is now delay and the suit is barred by the limitation. No doubt

instead of availing civil remedy the respondent no. 3 chooses to initiate criminal proceedings after almost 12 years.

This aspect has been dealt with by the Hon'ble Apex Court recently in the case of A.M. Mohan vs. State Represented by SHO and another, 2024 SCC Online SC 339, relevant extract of the said are being reproduced herein as below:-

"9(13). While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 :

2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8) "It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

10. The Court has also noted the concern with regard to a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court observed that this is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court also recorded that there is an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. The Court, relying on the law laid down by it in the case of G. Sagar Suri and Another v. State of

U.P. and Others2 held that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution (2000) 2 SCC 636 : 2000 INSC 34 should be deprecated and discouraged. The Court also observed that though no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law.

18. After hearing arguments of the learned counsel for the parites, this Court is of the view that the matter requires deep scrutiny and deliberations keeping in view the fact that impugned FIR pertains to 11 registered sale deeds executed from 1997 to 2009 and the FIR has been lodged after almost 12 years of the death of the main executants of the sale deeds that too by the wife of the main executants.

19. Let respondents may file their counter affidavits within three weeks. One week thereafter is granted to the petitioners to file rejoinder affidavit.

20. By the next date, the investigating officer may apprise this Court by way of affidavit about the status of the investigation which the investigating agency has carried out pursuant to the impugned FIR since, the impugned FIR was registered on 23.09.2022.

21. List this case on 18.09.2024.

22. In the meantime, let the investigation may go on, however, the petitioners shall not be arrested provided they cooperate with the investigation.

(Rakesh Thapliyal, J.) Parul