ORDER Petitioner has preferred instant petition for quashing of order dated 06.01.2010 passed by Sub Divisional Judicial Magistrate, Lakhisarai in complaint case no. 652C/2009 whereby and whereunder he has been summoned to face trial for an offence punishable under Sections 417, 420, 465 of the IPC. 2. O.P. No.2/complainant filed complaint petition showing date of occurrence from 16.5.2003 to 9.9.2009 showing place of occurrence at village Mahsoura as well as Civil Court, Lakhisarai asserting the fact that both complainant and accused are full brothers. Ancestral property was partitioned and on 16.5.2003 “Shartnama” was prepared with respect thereto in presence of well wishers. However, accused Dinbandhu made interpolation therein time to time for his undue favour. On 9.9.2009 accused Dinbandhu had also instituted a false criminal case against the complainant bearing Lakhisharai P.S. Case No. 433/2009 on the basis of the aforesaid memorandum of partition dated 16.05.2003. On 23.12.2006, Dinbandhu had filed Partition Suit No. 24 of 2004 wherein he had annexed copy of memorandum of partition which happens to be contrary to the memorandum of partition annexed with the FIR of Lakhisarai P.S. Case No.433/2009. Accused had knowingly and intentionally prepared forged and fabricated memorandum of partition only to defeat interest of petitioner. Complainant was apprehended in connection with Lakhisarai P.S. Case No. 433/2009 and after being released, has filed instant case. Enquiry was conducted thereupon in accordance with Section 202 Cr.P.C. and subsequently thereof petitioner/accused has been summoned to face trial, hence a cause has arisen for filing instant petition. 3. Contention on behalf of the petitioner is that the instant case is nothing but has been maliciously filed to harass and coerce the petitioner to desist from proceeding with Lakhisarai P.S. Case No. 433/2009. Further submitted that from the evidence whatever been collected during course of enquiry under Section 202 of the Cr.P.C., it is evident that no allegation is substantiated. Also submitted that O.P. No.2 had annexed two memorandum of partition Annexure-C series of counter affidavit from which it transpires that recitals are same and similar save and except having signature of father of both the parties namely, Arjun Prasad Sharma over one while is absent over other which the complainant on court question had himself explained under paragraph-1 that signature of father was obtained later on. So non presence of signature of father at first count over the document had itself been explained by the complainant himself. 4. Apart from this, it has also been submitted that none of the sections whereunder petitioner has been summoned is prima facie supported with the materials available on the record. Not only this, it has further been submitted that partition suit is also pending amongst the parties whereunder genuineness of memorandum of partition dated 16.05.2003 is also subject to adjudication. 5. Then thereafter, it has been submitted that the petitioner who was granted anticipatory bail by this Court under Cr.Misc. No.12306/2010 had gone to Hon’ble Apex Court against the condition imposed by the Court whereunder the Hon’ble Apex Court had specifically held that genuineness, correctness and validity of a document used as evidence in a suit can be ascertained and adjudicated upon by a competent Civil Court only. Therefore, prosecution of petitioner in the aforesaid background will be nothing but an abuse of process of the court and so taking into account the principle enunciated by the Hon’ble Apex Court in State of Haryan Vs. Bhajanlal & Ors, the same is fit to be set aside. Further to support its plea, also relied upon (2011) 1 PLJR 23 (SC). 6. On the other hand, Mr. Sanjeev Kumar, learned counsel for the O.P. No.2, submitted that the steps taken up by the learned lower court happens to be in accordance with law. Then submitted that at the time of summoning of accused, the Magistrate has to see only a prima facie case without adverting to its merit as well as whether the material, if unrebutted, would lead conviction of the accused. During course of enquiry, ample material has been produced to support the plea that petitioner/accused had interpolated the document dated 16.5.2003 for his illegal gain. That means to say by such illegal act petitioner/accused ultimately became the sole beneficiary. In other words, unsuccessful attempt for illegal gain has been made by the petitioner by creating forgery in the document dated 16.5.2003. Hence, summoning the petitioner is fully justified. Merely, pendency of civil suit is not going to blur the fate of criminal prosecution. Also relied upon 1994 Cr.L.J. 2238. 7. In other words, unsuccessful attempt for illegal gain has been made by the petitioner by creating forgery in the document dated 16.5.2003. Hence, summoning the petitioner is fully justified. Merely, pendency of civil suit is not going to blur the fate of criminal prosecution. Also relied upon 1994 Cr.L.J. 2238. 7. Learned Additional P.P., Smt. Sangeeta Sharma endorsed the view of O.P. No.2 and further submitted that at the stage of summoning of accused, the court is under obligation to search out only a prima facie case and nothing more. Also submitted that presence of civil suit is not at all a ground for setting aside or quashing the criminal prosecution. 8. With regard to justification of criminal proceeding in the back ground of pendency of Civil Suit had taken into consideration by the Hon’ble Apex Court as reported in (2009)1 SCC 69 whereunder at paragraph-7, it has been held as follows:- “We are also of the view that there can be no bar to the simultaneous continuance of a criminal proceeding and a civil proceeding if the two arise from separate cause of action. The decision in Trisuns Chemical Industry Case (1999) 8 SCC 686 appears to squarely cover this case as well.” 9. That means to say criminal prosecution is permissible even having presence of Civil Suit if both two are instituted on two different/separate cause of action. That means to say the cause of action should be distinct to each other to justify continuance of both proceeding. 10. According to complaint petition itself, Partition Suit No.24/2004 has already been drawn at the behest of petitioner. As per Annexure-4 of supplementary affidavit, proposed issue no.6 covers:- “Whether the document dated 16.05.2003 is genuine and binding on the plaintiff as well as the defendant no.1 and defendant no.2 ?”. 11. After having minute observation, it is evident that the aforesaid partition suit was instituted by the O.P. No.2 himself and therefore averments under paragraph-5 of the complaint petition that it was instituted by the petitioner/accused is incorrect. That means to say the authenticity of the document dated 16.5.2003 is within the ambit of Partition Suit No.24/2004. 12. 11. After having minute observation, it is evident that the aforesaid partition suit was instituted by the O.P. No.2 himself and therefore averments under paragraph-5 of the complaint petition that it was instituted by the petitioner/accused is incorrect. That means to say the authenticity of the document dated 16.5.2003 is within the ambit of Partition Suit No.24/2004. 12. In the aforesaid background, it looks pertinent to quote passage of Cr.Appeal No. 1903 of 2011 arising out SLP (Crl.) No.133 of 2011 passed by the Hon’ble Apex Court on 23rd September 2011 which has been supplemented by way of another supplementary affidavit:- “It is basic and elementary that the final judge of the genuineness, correctness and validity of a document used as evidence in a suit is the Civil Court. Hence, it is for the court dealing with the partition suit between the parties to examine and test the genuineness of the “Shartnama” produced by the appellant in support of his case. If the Civil Court found it to be actually fraudulent or subjected to interpolation or forgery, it would be open to it to institute proper proceedings against the appellant in terms of Section 340 of the Code of Criminal Procedure. The genuineness and validity of the document can hardly be tested in the complaint case and certainly not at the stage of grant of bail to the accused.” 13. Not only this, when the S.A. of the complainant (O.P. No.2) has been gone through, on court question, he said, “Shartnama bana, uske liye Panchayati ! Pitaji se hastakchhar Shartnama par baad mein Dinbandhu karaya tha”. 14. So, it is admitted fact that their father signed over the document later on. 15. In R.P. Kapoor case (AIR 1960 SCC 866), only three ingredients were identified for the purpose of attracting inherent power of the Hon’ble Court and those are, (a) Where it manifestly appears that there is a legal bar against the institution or continuance of a proceeding (b) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged (c) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge which later on got expansion in another judgment, State of Haryana Vs. Bhajan Lal & Ors as reported in 1992 Suppl (1) SCC 335 whereunder following criteria were prescribed and are as follows:- “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 16. In a decision reported in (2008) 16 SCC 763 at paragraph-9 it has been held:- “9 As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage…….. . It would not be proper for the high court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station land an offence is registered, then the mala fides of the informant would be secondary importance. When an information is lodged at the police station land an offence is registered, then the mala fides of the informant would be secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.” 17. Thus, taking into account the allegation on its face in consonance with the legal principles so enunciated by the Hon’ble Apex Court, it is held that the extending criminal prosecution in continuance of instant legal prosecution is not at all justifiable. Consequent thereupon, the order dated 6.1.2010 is set aside. Thus, the petition is allowed.