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2023 DIGILAW 1720 (ALL)

Kazim Mehndi v. Zubeda Begum

2023-07-18

SHREE PRAKASH SINGH

body2023
JUDGMENT : 1. Heard Sri Vijay Kumar Pandey, learned counsel for the applicant-petitioner, Sri Anil Kumar Sharma and Bajhul Quamar Siddiqui for opposite parties, Sri Nirmal Kumar Pandey, learned A.G.A. for the State and perused the material placed on record. 2. Instant application has been filed with prayer to quash the order dated 06.03.2018 passed by Judicial Magistrate, Court No.2, Sitapur in a Criminal Case No. 6395 of 2017, Smt. Zubeda Begum, versus Kazim Mehndi, and further prayed to stay the operation and implementation of impugned order dated 06.03.2018 passed by Judicial Magistrate, Court No.2, Sitapur in a Criminal Case No. 6395 of 2017, Smt. Zubeda Begum, versus Kazim Mehndi. 3. Learned counsel appearing for the applicant submits that the factual matrix of the case is that on 15.04.1990, on the basis of an application of the petitioner moved before Nagar Palika Parishad, Mehmudabad, Sitapur, an inquiry was made with respect to the death certificate which was issued to the petitioner regarding the death of Taqi Hussan wherein the date of death of Taqi Hussain was shown 02.04.1993. He further added that it is an admitted fact that daughter of Raja Hussain is admittedly died on 06.04.2007 and the Tehsildar under certain misconception and while misreading the provisions of section 171 and 172 of U.P.Z.A & L.R. Act has presumed as Taqi Hussain as successor who was not alive on the date of death of Kaniz Raja thereafter, the applicant-petitioner filed a case under section 210 of U.P.Z.A & L.R. Act, against the order of Tehsildar dated 27.01.2015 thereby, agitating the issue that the succession which was open on the date of death of Kaniz Raza i.e. on 07.04.2007, on that point of time Taqi Hussain was not alive. Therefore, the present applicant being sister's son admittedly was alive on the death of Kaniz Hassan and thus, being the nearest heir, learned appellate court allowed the appeal and set aside the order passed by the Tehsildar dated 27.01.2015 and against the same, a revision was filed which was also dismissed on 07.09.2015 by the revisional court and thereafter, on 26.05.2015, a claim of Mutation has also been raised. He added that in between the death certificate which was issued in collusion with the ex-chairman of Nagar Palika Parishad, was got cancelled and against the same the present applicant has instituted the writ petition before this Court which is pending consideration. He added that in between the death certificate which was issued in collusion with the ex-chairman of Nagar Palika Parishad, was got cancelled and against the same the present applicant has instituted the writ petition before this Court which is pending consideration. He added that since the present applicant are the nearest heirs of the deceased Kaniz Raja and therefore, there was no occasion to submit any forged or fabricated death certificate in his favour. He further added that in fact it is a dispute which is purely of civil in nature and several set of litigations are pending between the parties and this can only be decided after the issue is finally decided which is pending consideration at different stages. 4. While further adverting the fact that the order dated 06.03.2018 has been passed without considering the facts in its right perspective as the learned trial court has not considered the fact that the present applicant is the nearer heir of the deceased and thus, after the death of Kaniz Raja, he applied for Mutation. 5. He added that the trial court has also ignored the fact that there was no occasion for the present applicant to submit any kind of forged or fabricated death certificate as he by operation of law, is the legal heir of the deceased, Adding his argument, he submits that impugned order dated 06.03.2018 has been passed without thoroughly giving the reasons. 6. In support of his submission, he has placed reliance on a judgment reported in Devendra and Others versus State of Uttar Pradesh and another (2009) 7 SCC page 495 and has referred paragraph 24. 7. Paragraph 24 is quoted herein under:- There is no dispute with regard to the aforementioned propositions of law. However, it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected 'during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing. 8. When the allegations made in the first information report or the evidences collected 'during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing. 8. Referring the aforesaid, he submits that the Apex Court in so many word has held that the superior courts would not encourage harassment of a person in a criminal court if there is no substance. 9. He has further placed reliance on a judgment reported in Inder Mohan Goswami and another versus State of Uttaranchal and others (2007) 12 SCC 1 and has referred paragraph 42. 10. Paragraph 42 is quoted herein under:- On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a 7 fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning. 11. Referring the aforesaid, he submits that the intention is a key point to map out the criminal and civil act of a person. He added that the Apex Court has also held that fraud and cheating can said to be committed once, such a person had fraudulent or dishonest intention. He submits that there was no question with respect to any gain by the applicant and thus, it could not be said that there was any criminal intent of the applicant for committing the alleged offence. 12. He submits that there was no question with respect to any gain by the applicant and thus, it could not be said that there was any criminal intent of the applicant for committing the alleged offence. 12. Concluding his argument, he submits that since the matter is sub-judice in civil suit and the learned trial court without considering the aforesaid facts and circumstances that the case is purely of civil in nature and has passed the order dated 06.03.2018 therefore, the same may be set aside. 13. Leamed counsel for the opposite parties has vehemently opposed the submission aforesaid and submits that the present applicant moved an application for mutation whereby, the death certificate of Taqi Hussain was annexed. He added that once the same was challenged before the court of Civil Judge, J.D., Mehmudabad, Sitapur, after considering the facts and circumstances the order was passed on 12.05.2015, while discussing the fact that the death certificate of Taqi Mohd is forged which was produced by the applicant at the time of executing the Mutation application. Learned counsel has placed the supplementary affidavit dated 13.07.2023 annexing therein the photocopy of the judgment and order dated 12.05.2015, which is taken on record. 14. Attention has been drawn during course of hearing that the trial court directed the Executive Officer of Nagar Palika Parishad, Medmudabad, Sitapur to submit its report regarding the death certificate of Taqi Hussain and in response thereof, it was intimated and reported that the death certificate which was submitted by the present applicant is a forged and that was cancelled. The relevant paragraph of the aforesaid order is quoted here in under:- 15. Referring the he submits that it is prima facie evident from the judgment and the report of the executive officer that the death certificate of Taqi Mohammad, which was produced was found forged and therefore, the complaint which has been instituted by the complainant thereafter, the same was treated as complaint case, the statement of the complainant and witnesses were recorded and there is no deviation regarding the allegation with respect to preparing of forged death certificate of Taqi Mohammad. 16. Learned counsel appearing for the opposite party further submits that prima facie perusal of the order dated 06.03.2018, it transpires that the fact and the reasons have been discussed exhaustively. 16. Learned counsel appearing for the opposite party further submits that prima facie perusal of the order dated 06.03.2018, it transpires that the fact and the reasons have been discussed exhaustively. He further added that while passing the order the learned trial court has also gone into the statement of the complainant and the witnesses which was recorded under section 200 and 202 of the Cr.P.C. 17. Concluding the arguments, he submits that the criminal and civil proceeding can go on simultaneously, and once it has prima facie from the report of Executive Officer that the death certificate is forged and that was cancelled, the order passed dated 06.03.2018 by the learned trial court, is quashed, adhering the provisions of law and thus, the same is not entitled to be set aside. 18. On the other hand, learned counsel appearing for the State has also vehemently opposed the contentions of learned counsel for the applicant and submits that the order dated 06.03.2018 passed by the learned trial court is assailed and about five years have been passed and after 12.01.2023, there is no interim order in this application. Adding his argument, he submits that it is apparent from the criminal proceeding itself that forged certificate was prepared by the applicant and later on it was cancelled by the Executive Officer, Nagar Palika Parishad, further the statement of witnesses and complainant are intact and there seems to be no deviation thereof. Thus, the learned trial court has no occasion, not to believe on the statement of complainant and the witnesses recorded under section 200 and 202 of Cr.P.C. The criminal intent after preparing the forged document 1.e. death certificate is prima facie evident that the same was prepared for wrongful gain and thus, this cannot be decided at this stage that the statement of the witnesses and the complainant are incorrect because there is no erroneousness in the summoning order dated 06.03.2018 passed by the learned trial court. 19. 19. Adding his argument, he submits that the factual dispute has been raised before this Court which cannot be entertained and examined at this stage and furthermore, the civil and criminal proceedings are there consequences and that cane be go on simultaneously as the law is very clear on this point, might be any dispute in between the parties in respect to the civil matter, but this does not mean that on the carve of the aforesaid dispute of persons is allowed to commit forgery. Therefore, his submission is that the applicant is not entitled for any relief. 20. Having heard learned counsels for the parties and after perusal of material placed on record, it emerges that the criminal case has been instituted against the present applicant with an allegations that he with a view to inherit the property has got prepared the forged death certificate of Taqi Hussain, and an application was instituted by the complainant under section 156 (3) of Cr.P.C. which was treated as complaint case, wherein the statement of the complainant and the witnesses were recorded. From perusal of the statements, it is evident that those, supports the version of the complainant and there is no deviation in the same. 21. Undoubtedly, prima facie there seems to be civil dispute in between the parties but so far as getting prepared the death certificate of Taqi Hussain by the present applicant is concerned, it prima facie show that the same was prepared willfully and dishonestly. The Executive Officer of Nagar Palika Parishad, Mehmudabad, Sitapur, cancelled the forged death certificate vide letter no. 125 dated 26.03.2015. This fact is evident from the interim order dated 12.05.2015 passed in civil suit no. 101 of 2015 annexed along with the supplementary affidavit dated 13.07.2023 wherein, during the proceeding this fact was also got verified, while calling the report from Executive Officer of Nagar Palika Parishad, Mehmudabad, Sitapur, wherein it was informed that the death certificate of Taqi Hussain, wherein the date of death was shown as 15.07.1990 was wrong and therefore, the same was cancelled. So far as the submissions of learned counsel for the applicant is concerned that the applicant is heir by operation of law and there was no need to submit any kind of forged documents with respect to the death of Taqi Mohammad, is not sustainable, as then what was the occasion for the present applicant to submit a forged death certificate, which indicates that there was some expectation of wrongful gain by him. 22. In support of the submissions, the applicant has also referred the judgments of Devendra and Others versus State of Uttar Pradesh and another and Inder Mohan Goswami and another versus State of Uttaranchal and others (Supra), which do not attract in the instant matter as the fraudulent and dishonest intention is apparent from getting prepared the death certificate and submitting the same before the public authority for wrongful gain is very overt. The Hon'ble Apex Court in aforesaid cases has very categorically distinguished the 'the intention of doing any wrong and fraudulent or dishonest intention. Vide the aforesaid judgments it has very clearly been held that the superior courts shall ensure that criminal prosecution is not used as an instrument of harassment, but on the other hand it has also been held that inherent jurisdiction under section 482 of Cr.P.C. be exercised sparingly and carefully. It has also been held that there can be no hard and fast rule and each case has to be considered on its own merits. It is further said that the genuine complaint, keeping in view of the purport and object, would not be interfered. This court has also noticed that the counsel for the applicant has also failed to demonstrate that how any cognizable offence was not made out as the statements of the witnesses and the complainant are intact and prima facie there is a record which is said to be forged and the applicant seems to be beneficiary. 23. It is trite law that the testimony of the witnesses cannot be examined by this Court and deciding the fate of the trial while giving finding that those testimonies are baseless is not proper at this stage and further the criminal and civil proceedings can go on as there are different consequences of the same. 24. 23. It is trite law that the testimony of the witnesses cannot be examined by this Court and deciding the fate of the trial while giving finding that those testimonies are baseless is not proper at this stage and further the criminal and civil proceedings can go on as there are different consequences of the same. 24. Before parting with the judgments, it is clarified that the observations made hereinabove would have no bearing on the merit of the criminal case no 6395 of 2017 pending before the trial court. 25. Considering above said submissions and discussions, this Court finds no merit in this case and thus, the instant application is hereby dismissed.