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2015 DIGILAW 460 (UTT)

BISHWA KANT PANDEY v. STATE OF UTTARAKHAND

2015-09-17

U.C.DHYANI

body2015
JUDGMENT : U. C. Dhyani, J. (Oral) 1. By means of present application under Section 482 Cr.P.C., the applicants seek to quash the summoning order dated 27.05.2014 and proceeding of Criminal Case No. 777 of 2011 titled as Ram Avtar Jindal vs. B.K. Pandey and Others, u/s 420, 467, 468 and 471 IPC, pending in the Court of Judicial Magistrate II Dehradun. 2. The facts giving rise to present petition, in the words of the applicants, are as follows: (i) On 14.02.1949 the original tenure holder of the land in dispute Late Sri Jyoti Prasad S/o Lala Musaddi Lal R/o Darshani Darwaja Dehradun executed a permanent lease in favour of Manav Bharti School Rajpur, Dehradun through Dr. Durga Prasad Pandey S/o Sri Jagannath Pandey R/o Rajpur Pargana Pachwa District Dehradun Director. (ii) On 19th May 1981 the father of the applicant no. 1 Dr. Durga Prasad Pandey Chairman of the Manv Bharti Society Dehradun purchased the land in dispute from original tenure holder Krishan Dev, Ram Dev, Sukh Dev and Suraj Mani through their power of attorney holder/elder brother Krishan Dev through registered sale deed. (iii) On the basis of the registered sale deed dated 19th May 1981 the name of the father of the applicant no. 1 was mutated in the revenue record as a Bhumidhar as a transferable right. (iv) After the death of Dr. Durga Prasad Pandey the applicant no. 1 inherite the land in dispute property and he executed a registered sale deed in favour of applicant no. 2 on 22.12.2000. (v) It is alleged by the opposite party no. 2 that original tenure holder Sri Jyoti Prasad was died and after his death his son Damodar Prasad S/o Late Sri Jyoti Prasad R/o 194, Indira Nagar Dehradun (U.P. now Uttarakhand, at present residing at 1013 Gali Khirkiwali Delhi) Director/In-charge of Anghila Housing (P) Ltd., had executed a registered Will on 19.11.1988 in favour of the opposite party no. 2 at Delhi. (vi) On Anghiliya Housing Private Limited through its Director Km. Mausami Bhatichariya Jee lodged a complaint against the opposite party no. 2 under Section 420, 468, 467, 471 and 120B IPC in the Court of Chief Judicial Magistrate for preparing forged and fictitious Will dated 19.01.1988. The learned Chief Judicial Magistrate, Dehradun issued summon against the opposite party no. 2 but he is avoiding summon of the learned court concern. Mausami Bhatichariya Jee lodged a complaint against the opposite party no. 2 under Section 420, 468, 467, 471 and 120B IPC in the Court of Chief Judicial Magistrate for preparing forged and fictitious Will dated 19.01.1988. The learned Chief Judicial Magistrate, Dehradun issued summon against the opposite party no. 2 but he is avoiding summon of the learned court concern. (vii) On 07.02.2014 the opposite party no. 2 filed a suit for prohibitory/permanent injunction and possession against the applicants, which was registered as a Suit No. 82 of 2014 titled as Ram Avtar Jindal vs. Manav Bharti School and others, before Civil Judge (SD) Dehradun. (viii) The applicants filed their written statements and denied the plaint allegations and specifically stated in the paragraph no. 5 of the written statement that the plaintiff has claimed right to sue/locus in standi in his favour on the basis of a document dated 20.01.1998 alleged to be a Will executed by Late Sri Damodar Prasad. The said documents purported to be a Will is forged and fabricated and was obtain with oblique motive to garb the land including Suit property. The said document purported to be a Will does not qualify to be a Will within the meaning of the definition of a Will as defined u/s 2(h) of Indian Succession Act, 1925 furthermore, without prejudice to the aforesaid, Late Sri Damodar Prasad had no testamentary capacity/right to execute a Will in respect of the suit property. (ix) On 07.02.2014 the opposite party no. 2 had also filed an application u/s 156(3) Cr.P.C. before the Judicial Magistrate II Dehradun against the applicants for registration of FIR and investigation of the matter. (x) On 07.02.2014 the learned Magistrate directed to the police to investigate the matter. (xi) On 12.02.2014 the In-Charge of Police Chowki Outpost Circuit House, P.S. Cantt., District Dehradun had given his report. (xii) On 10.03.2014 the learned Judicial Magistrate II Dehradun converted the application u/s 156(3) Cr.P.C. into a complaint case and directed the complainant to give his statement under Section 200 Cr.P.C. on 20.03.2014. (xiii) On 20.03.2014 the complainant/opposite party no. 2 recorded his statement under Section 200 Cr.P.C. (xiv) On 27.05.2014 the learned Magistrate has taken cognizance against the applicants under Sections 420, 467, 468 & 471 IPC and directed to appear on 04.07.2014 for appearance. 3. (xiii) On 20.03.2014 the complainant/opposite party no. 2 recorded his statement under Section 200 Cr.P.C. (xiv) On 27.05.2014 the learned Magistrate has taken cognizance against the applicants under Sections 420, 467, 468 & 471 IPC and directed to appear on 04.07.2014 for appearance. 3. The contention of learned counsel for the applicants is that the dispute between the parties is purely civil in nature. The complainant has given it the colour of criminal nature. It is also submitted that the Will dated 19.01.1998 is a forged and fabricated document. The Will was executed in Delhi but the complainant did not obtain probate of the said Will. Learned counsel for the complainant (respondent no. 2 herein), on the other hand, contended that the Will dated 19.01.1998 is a genuine document and submitted that the applicants have rightly been summoned to face the criminal trial. 4. It is an admitted fact that the genuineness of the Will dated 19.01.1998 is under challenge in O.S. No. 82 of 2014 titled as Ram Avtar Jinal vs. Manav Bharti School, Mussorie & Anghalia Hills & Ors, before learned Civil Judge (SD), Dehradun. 5. This Court is, therefore, inclined to dispose of the application under Section 482 Cr.P.C. moved by the applicant, in terms of the decisions of Hon’ble Apex Court in Sardool Singh and another vs. Smt. Nasib Kaur, 1987 SCC (Cri) 672 and M/s Karamchand Ganga Pershad and another vs. Union of India and others, AIR 1971 SC 1244 . 6. In Sardool Singh’s case (Supra), the Hon’ble Apex Court observed as below: “A civil suit between the parties is pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellants is that a Will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class. Chandigarh in the case entitled Smt. Nasib Kaur vs. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one. We of course refrain from expressing any opinion as regards genuineness or otherwise of the Will in question as there is no occasion to do so and the question is wide open before the lower courts.” 7. Likewise, in Karamchand Ganga Pershad’s case (Supra), the Hon’ble Apex Court observed as below: “A Division Bench of the Delhi High Court after elaborately hearing the arguments advanced in the case on the various issues arising for decision in the case rejected the writ petitions on the sole ground that in view of the pendency of the criminal proceedings before some Courts in the State of West Bengal, it is inappropriate for the High Court to pronounce on the questions arising for decision in the writ petitions. In our opinion the High Court seriously erred in coming to this conclusion. If the appellants are able to establish their case that the ban on export of maize from the State of Haryana had been validly lifted all the proceedings taken against those who exported the maize automatically fall to the ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true. The High Court after entertaining the writ petitions and hearing arguments on the merits of the case should not have dismissed the petitions merely because certain consequential proceedings had been taken on the basis that the exports in question were illegal. For the decision of the controversy between the parties to the writ petitions neither the presence of the State of West Bengal nor the authorities who took penal action was necessary. The validity of the steps taken by them, as mentioned earlier, would depend upon the validity or otherwise of the export in question.” 8. Application under Section 482 Cr.P.C. is thus disposed of in terms of the aforesaid decisions of Hon’ble Apex Court. 9. This will not come in the way of instituting appropriate criminal proceedings in future, in case, learned Civil Judge (SD), Dehradun comes to the conclusion that the document in question was forged one. This Court also refrains from expressing any opinion as regards genuineness or otherwise of the document in question in the criminal complaint case, as there is no occasion to do so and the question in wide open before the learned Civil Judge (SD), Dehradun in O.S. No. 82 of 2014.