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2015 DIGILAW 993 (RAJ)

Bhushan Kumar v. State of Rajasthan

2015-05-05

VIJAY BISHNOI

body2015
JUDGMENT : Vijay Bishnoi, J. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioners being aggrieved with the order dated 10.11.2014 passed by Additional Sessions Judge No.1, Sri Ganganagar (hereinafter referred to as 'the revisional court') in Criminal Revision Petition No.48/2013 whereby the revision petition filed by the petitioner has been dismissed. In the above mentioned revision petition, the petitioners have challenged the order dated 15.7.2013 passed by the Additional Chief Judicial Magistrate No.2, Sri Ganganagar (hereinafter referred to as 'the trial court') in Criminal Case No.88/2012 (179/2010) whereby the trial court ordered for framing charges against the petitioners for the offences punishable under Sections 420, 465, 467, 468, 471 and 120-B I.P.C. 2. The allegation against the petitioners is to the effect that they have prepared a forged Will of their grand-father pertaining to a shop situated in Dhan Mandi, Sri Ganganagar. 3. The trial court, after taking into consideration the material available on record, observed that prima facie evidence is available on record which suggests that the petitioners prepared a forged Will of their grand-father by putting forged signatures on it in back date. The trial court is of the opinion that when prima facie evidence regarding commission of offence is available against the accused, charges can be framed. 4. The revisional court has also taken into consideration the material available on record and has held that since prima facie evidence regarding the commission of crime is available against the petitioners, the trial court has not committed any illegality in framing the charges for the offences punishable under Sections 420, 465, 467, 468, 471 and 120-B I.P.C. 5. Learned counsel for the petitioners, while assailing the validity of the impugned orders, has argued that earlier the complainant party has filed a civil suit in the year 2008 for partition and declaration in the Court of Additional District Judge No.2, Sri Ganganagar on the basis of a Will said to have been executed by the grand-father of the petitioners in the year 1990 and the said suit was decreed by the Additional District Judge No.2, Sri Ganganagar on 1.4.2009 and a preliminary decree was passed. It is contended that thereafter the petitioners filed a civil suit for partition and declaration of preliminary decree dated 1.4.2009 passed in Suit No. 3/2008 as nullity and in the said suit, the petitioners have claimed that after execution of the Will in favour of the complainant party by their grand-father on 5.7.1990, he executed a fresh Will on 22.9.1992 in favour of them and, therefore, a decree of partition be issued on the basis of fresh Will and the preliminary decree dated 1.4.2009 passed by the Additional District Judge No.2, Sri Ganganagar be declared as nullity. It is contended that since the civil suit filed by the petitioners on the basis of Will dated 22.12.1992 is pending consideration in the civil court, the complaint filed by the complainant alleging that the Will dated 22.12.1992 is forged one is not maintainable, but the courts below without considering this aspect of the matter has illegally ordered for framing charges against the petitioners for the offences punishable under Sections 420, 465, 467, 468, 471 and 120-B I.P.C. 6. In support of above contentions, learned counsel for the petitioners has placed reliance upon the judgment of the Hon'ble Supreme Court rendered in Paramjeet Batra v. State of Uttrakhand & Ors. reported in (2013) 11 SCC 673 . 7. Per contra, learned Public Prosecutor has submitted that prima facie material is available against the petitioners, therefore, the courts below have not committed any illegality in framing charges against the petitioners for the offences punishable under Sections 420, 465, 467, 468, 471 and 120-B I.P.C. Hence, no interference is called for. 8. Heard learned counsel for the parties and perused the impugned orders as well as the material placed on record. 9. The point that when civil proceedings are pending, can criminal proceedings proceed simultaneously, has been considered by this Court in Vikram v. State of Rajasthan & Anr. reported in 2015(2) Cr.L.R. (Raj.) 618 and it is held that:- "11. The question now comes as to whether criminal proceedings are permissible while civil litigation is pending or decided or as to whether civil and criminal litigation can go simultaneously in regard to same allegations provided that allegations of commission of offence exist therein. The issue has been decided by Hon'ble Supreme Court holding that civil and criminal cases can go simultaneously, if the allegation of criminality exist in the FIR. The issue has been decided by Hon'ble Supreme Court holding that civil and criminal cases can go simultaneously, if the allegation of criminality exist in the FIR. Reference of the judgments of Hon'ble Supreme Court in the case of "MS Sheriff v. The State of Madras & ors" [ AIR 1954 SC 397 ] and in the case of "P Swaroopa Rani v. M Hari Haryan @ Hari Babu", [ (2008) 5 SCC 765 ] are relevant. Paras 13 to 17 of the judgment in the case of P Swaroopa Rani (supra) are quoted hereunder for ready reference - "13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff v. State of Madras AIR 1954 SC 397 , Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants(2005) 12 SCC 226] 14. It is furthermore trite that Section 195(1) (b) (ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah (supra) stating: 25. An enlarged interpretation to Section 195 (1) (b) (ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large. 26. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large. 26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) is either not placed for trial on account of non- filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner: "The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong." 10. In regard to the possible conflict of findings between civil and criminal court, however, it was opined: 32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.... It was concluded: 33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. It was concluded: 33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195 (1) (b) (ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis. 15. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute. 16. The High Court, therefore, in our opinion, was not correct in staying the investigation in the said matter. Reliance has been placed by Mr. Gupta on Mahar Jahan and Ors. v. State of Delhi and Ors. (2004) 13 SCC 421 wherein this Court was dealing with a proceeding under Section 145 of the Code of Criminal Procedure. This Court noticed that a civil dispute was given the colour of a criminal case. As therein a proceeding under Section 145 of the Code of Criminal Procedure was pending, when a civil suit was also pending before a competent court of law, it was opined: 4. It is not disputed by the learned Counsel for the parties that this very property which is the subject-matter of these criminal proceedings is also the subject-matter of the civil suit pending in the civil court. The question as to possession over the property or entitlement to possession would be determined by the civil court. The criminal proceedings have remained pending for about a decade. We do not find any propriety behind allowing these proceedings to continue in view of the parties having already approached the civil court. Whichever way proceedings under Section 145 CrPC may terminate, the order of the criminal court would always be subject to decision by the civil court. Inasmuch as the parties are already before the civil court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit. It was furthermore observed: "7. We have simply noted the contentions raised by the parties. It was furthermore observed: "7. We have simply noted the contentions raised by the parties. The civil court, in our opinion, would be the most appropriate forum to take care of such grievances and pass such interim order as would reasonably protect the interests of both the parties. The civil court may issue an ad interim injunction, may appoint a Commissioner or Receiver or may make any other interim arrangement as to possession or user of the property which is the subject-matter of proceedings in the civil court exercising the power conferred on it by Sections 94 and 151 of the Code of Civil Procedure." It was, therefore, a case where this Court quashed a proceeding under Section 145 of the Code of Criminal Procedure as the matter pending before it arose out of a civil proceedings. Such observations were made keeping in view the fact that possession of the parties over the property in suit was in question. 17. The impugned order, therefore, cannot be sustained which is set aside accordingly. Civil Appeal arising out of SLP (C) No. 15670 of 2006 is allowed." 11. In view of the law laid down by the Hon'ble Supreme Court and by this Court in the above referred judgment, it is clear that there is no bar on simultaneous proceedings in civil as well as criminal case. 12. In the present case, the petitioners have filed the civil suit while claiming that their grand-father had executed a fresh Will after execution of earlier Will and on the basis of the said fresh Will, they are entitled for partition of the property in question. The complainant has questioned the execution of Will while claiming that the alleged signatures of their grand-father on the said Will is forged one and Will has also been illegally prepared in the back date. The police during the course of investigation has collected material which suggests that the petitioners are guilty of preparing forged Will of their grand-father in back date. The petitioners either before the court below or in this Court has not claimed that in the civil suit filed by them the civil court has framed any issue regarding genuineness of the Will dated 22.11.1992. The petitioners either before the court below or in this Court has not claimed that in the civil suit filed by them the civil court has framed any issue regarding genuineness of the Will dated 22.11.1992. In the absence of any issue before the civil court regarding the genuineness about the disputed Will, it cannot be said that criminal proceedings for the charges of preparation of forged Will and cheating cannot be initiated against the petitioners. Fact of the case of Paramjeet Batra (supra) are quite distinguishable from the facts of this case, therefore, the same has no application in the present case. 13. In view of above, I do not find any reason to interfere with the orders passed by the courts below. 14. Hence, this criminal misc. petition is dismissed. The stay petition is also dismissed. Petition dismissed.