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2024 DIGILAW 584 (JHR)

Ajay Pratap Singh @ Sudhir v. State of Jharkhand

2024-06-19

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Heard Mr. R.S. Mazumdar, learned senior counsel along with Mr. Nishant Kumar Roy, learned counsel appearing for the petitioners, Mrs. Vandana Bharti, learned counsel appearing for the State and Mr. Jitendra Shankar Singh, learned counsel appearing for opposite party no.2. 2. Vide order dated 24.02.2020, the Coordinate Bench has taken endeavour for settling the matter and even President of Advocates' Association, High Court of Jharkhand, Ranchi was requested to take active part in the mediation process and pursuant to that, mediation took place and on 04.04.2024, it was informed by Mr. Jitendra Shankar Singh, learned counsel for opposite party no.2 that certain talks have already proceeded and there is every likelihood that the matter will be compromised and in view of that, the matter was adjourned on that day. Identical was the position on 02.05.2024 and on the request of the learned counsel for both the sides, the matter was adjourned. Today when the matter was taken up, Mr. Jitendra Shankar Singh, learned counsel for opposite party no.2 submits that in spite of his request, the complainant-opposite party no.2 has not come forward to file the affidavit, however, he has been orally instructed by the complainant that he has compromised the matter with petitioner no.1 only and there is no compromise, so far as petitioner nos. 2 to 6 are concerned. In view of these facts, this matter is being heard on merit with consent of the parties. 3. The prayer in the petition is made for quashing of the entire criminal proceeding including the order taking cognizance dated 06.04.2019 in connection with Complaint Case No.4954 of 2018, pending in the Court of the learned S.D.J.M., Ranchi. 4. The complaint case was filed alleging therein that accused nos. 1 to 4 and the complainant are the sons and daughter of Late Nagendra Narayan Singh, who died on 16.02.2015. The complainant in the complaint petition has averred that the father of the complainant has executed a will dated 07.01.2015 in favour of the wife of the complainant. However, the complainant did not disclose about the said will due to utter love and affection towards all the legal heirs and the family members of the deceased. However, in the month of May, 2015, the accused nos. However, the complainant did not disclose about the said will due to utter love and affection towards all the legal heirs and the family members of the deceased. However, in the month of May, 2015, the accused nos. 1 to 4 attempted to dispossess the complainant from the entire property situated at Ashok Nagar Housing Cooperative Society Plot No.357A consisting of double storied building and other construction measuring an area of 31 decimals, situated at Road No.5, Ashok Nagar, P.O.-Doranda, P.S. Argora, District-Ranchi, Jharkhand. Thereafter, the complainant on such provocation as he was being ousted from the landed family property as stated above, disclosed to the family members that his father had executed a will dated 07.01.2015 in favour of his wife and if they do not change the attitude, he would be compelled to institute a probate case for the will dated 07.01.2015. Thereafter, the complainant was threatened by accused no.5, who threatened the complainant that he will suffer dire consequences if he institutes a probate case for the will dated 07.01.2015. It was further alleged in the complaint case that the complainant to his utter shock and surprise received notice in connection with Probate Case No.7 of 2016, in which, accused no.1 has claimed for the grant of probate. It was also alleged in the complaint case that he waited for the will to be exhibited which has been produced by accused no.1 and when accused no.1 was examined and the forged will was exhibited, he obtained certified copy of the alleged forged will and on receiving the same, he found serious infirmities in the purported manufactured will. It was further alleged that the signature of the deceased has been denied by the complainant and for which he had filed several documents such as certified copies of judgment, charge report, income tax acknowledgment etc. It was also alleged that the wife of the deceased has disputed about the actual signature of the husband of the complainant. The complainant has further alleged that the accused persons with an intent to commit fraud and resorting to the acts of forgery, has cheated the complainant and caused injury to the property of the complainant and when the complainant went to the Police Station, the police has not accepted the grievance and, therefore, the complainant has filed the present complaint case. 5. Mr. 5. Mr. R.S. Mazumdar, learned senior counsel appearing for the petitioners submits that the learned Court has been pleased to take cognizance under Section 420 and 467 of the Indian Penal Code vide order dated 06.04.2019. He submits that the entire allegation levelled against the petitioners are malafide in nature and from the allegation and other circumstances as alleged got no legal value. He further submits that petitioner no.1 and the complainant are full brothers and petitioner nos. 2 to 4 are own sisters of the complainant and petitioner no.5 is the brother-in-law of the complainant and petitioner no.6 is tenant in the property in question. He submits that the complaint is an afterthought after written statement/show-cause in Probate Case No.7 of 2016, which was filed by petitioner no.1 for probate of the will dated 16.11.2014. He submits that the written statement/show-cause in the said probate case was filed by the complainant-opposite party no.2 and he has not whispered about the will dated 07.01.2015 and has only relied upon the health condition of the deceased, namely, Nagendra Narayan Singh. He also submits that opposite party no.2 has categorically stated that his father did not execute any will, as such, the will dated 07.01.2015 appears to be doubtful on the strength on which the complaint case has been filed against the family members and in view of that, the entire allegations are false. He further submits that the complainant has taken another point of nature of signing by late Nagendra Narayan Singh, who retired as a judicial officer. The complainant has asserted that his father used full signature in all the documents, whereas, the will produced by the petitioner no.1 does not bear full signature and it bears different signature. To deny the said allegation, learned counsel for the petitioners submits that short signatures were indeed used by the father of the complainant and petitioner nos. 1 to 4 and several documents in that regard has been signed by the father of the complainant in short signatures even in the charge report, Provident Fund form and other relevant documents in which the complainant is an author which shows that the petitioners have been maliciously dragged in the present case. He submits that the entire case is maliciously filed for a will, which is the subject matter in Probate Case No.7 of 2016. He submits that the entire case is maliciously filed for a will, which is the subject matter in Probate Case No.7 of 2016. He further submits that for bringing home an offence under Section 420 of the Indian Penal Code, the basic ingredient of Section 415 of the Indian Penal Code has to be fulfilled, which is lacking in the case in hand. He submits that once probate case is there and if the allegations are made that the will is forged one, that can be looked into by the competent court, where, the matter is pending and the learned Court is further competent if he comes to a conclusion that on the basis of forged will, he tried to probate, the learned Court can take action against the person, who has tried to dupe the Court. On these grounds, he submits that the entire criminal proceeding may kindly be quashed. 6. Mrs. Vandana Bharti, learned counsel for the State submits that on the complaint case, the learned Court has been pleased to take cognizance. She submits that prima facie it appears that the dispute is with regard to a will which is already a subject matter in the said probate case and all the family members have been dragged in the present case. 7. Mr. Jitendra Shankar Singh, learned counsel for opposite party no.2 vehemently opposed the prayer for quashing of the entire criminal proceeding and submits that all the grounds can be subject matter of trial only. According to him, even in a civil case, criminality is made, both the cases can go simultaneously. He submits that he has got instruction orally that the complainant has compromised the matter with petitioner no.1 only, who happened to be full brother of the complainant, however, he has not compromised the matter with sisters, brother-in-law and tenant. On these grounds, he submits that the entire criminal proceeding may not be quashed at this stage and this petition may kindly be dismissed. 8. In view of the above submission of the learned counsel for the parties, the Court has gone through the materials on the record. In the complain petition, it was alleged that the father of the complainant has executed will dated 07.01.2015 and suppressing that fact, Probate Case No.7 of 2016 was filed saying that the complainant's father has executed the will dated 16.11.2014. In the complain petition, it was alleged that the father of the complainant has executed will dated 07.01.2015 and suppressing that fact, Probate Case No.7 of 2016 was filed saying that the complainant's father has executed the will dated 16.11.2014. Thus, it is crystal clear that for the dispute of a will, the present complaint case has been filed, which is already a subject matter in Probate Case No.7 of 2016, pending before the competent Court of civil jurisdiction. All the allegations made in the complaint petition can be looked by the learned Court where the said probate case is pending and that Court is competent enough to initiate any proceeding against the persons who have tried to probate the false will and all these grounds can be taken by the complainant in the said probate case, which is pending for adjudication. 9. The show-cause filed by the complainant in the said probate case is brought on record, contained in Annexure-3 and the said show-cause is consistent on the ground that the father of the complainant was not mentally or physically fit to execute the alleged will. The ground of nature of signature is not stated in the said show-cause. It was pointed out that the deceased used to sign the documents by way of full signatures as well as short signatures. The supplementary affidavit has been filed on behalf of the petitioners, wherein, charge report of the father of the complainant is annexed and looking into the said charge report, the Court finds that the deceased had signed in short as N.N. Singh. Thus, the contention of the complainant with regard to nature of signing of the document is also in dispute, which can be decided by the learned Court, where, the matter is pending in the said probate case. 10. Further, it was pointed out in course of the argument that the will dated 07.01.2015 on the basis of which the complaint case was filed, it was executed in favour of wife of the complainant, whereas, the will which is the subject matter in Probate Case No.7 of 2016 is in favour of petitioner no.1. 10. Further, it was pointed out in course of the argument that the will dated 07.01.2015 on the basis of which the complaint case was filed, it was executed in favour of wife of the complainant, whereas, the will which is the subject matter in Probate Case No.7 of 2016 is in favour of petitioner no.1. Admittedly, 2014 will is the subject matter in the said probate case and on the basis of will dated 07.01.2015, the complaint case has been filed, which clearly suggests that maliciously the present criminal case has been filed against the brother, married sisters and one of the brother-in-law of the complainant. Petitioner no.6 is the tenant in the property in question and in the complaint petition, it was alleged that petitioner no.6 is not vacating the property in question. 11. By way of filing the complaint case, eviction cannot be made. It is well settled that if procedure is prescribed under relevant laws, that has to be followed to evict any person, even trespassers cannot be evicted without following due process of law. This fact further strengthens the case of the petitioners of malicious prosecution. 12. Further, if such dispute is brought to the knowledge of the High Court, the High Court is having more responsibility to examine it minutely as if malicious prosecution is decided to file, every care is being taken either in drafting of the complaint case as well as FIR so that ingredient of Sections may be made out and in view of that, the High Court is required to read the things in between the line. 13. For cognizance under Section 420 of the Indian Penal Code, the ingredients made in Section 415 of the Indian Penal Code are required to be made out. The intention from very inception is not made out against the petitioners, which is one of the ingredients to make out the case of cheating and this ingredient is lacking in the case in hand. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of Vijay Kumar Ghai and others v. State of West Bengal and others , reported in (2022) 7 SCC 124 . Paragraphs 34, 35, 36 and 37 of the said judgment read as under : “34. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of Vijay Kumar Ghai and others v. State of West Bengal and others , reported in (2022) 7 SCC 124 . Paragraphs 34, 35, 36 and 37 of the said judgment read as under : “34. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine. 35. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved: (i) The representation made by the person was false. (ii) The accused had prior knowledge that the representation he made was false. (iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made. (iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed. 36. As observed and held by this Court in R.K.Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739 : (2020) 2 SCC (Cri)454, the ingredients to constitute an offence under Section 420 are as follows: (i) a person must commit the offence of cheating under Section 415; and (ii) the person cheated must be dishonestly induced to: (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. 37. The following observation made by this Court in Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 : (2006) 2 SCC (Cri) 49 with almost similar facts and circumstances may be relevant to note at this stage : (SCC pp. 338-39, paras 6-7) “6. 37. The following observation made by this Court in Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 : (2006) 2 SCC (Cri) 49 with almost similar facts and circumstances may be relevant to note at this stage : (SCC pp. 338-39, paras 6-7) “6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of the complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-BIPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs 4,20,000, they would pay a sum of Rs 2,60,000 to the complainant out of that but the same has never been paid. … It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the consumer forum in relation to the claim of Rs 4,20,000. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case, it has nowhere been stated that at the very inception that there was intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120- BIPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused.”” 14. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused.”” 14. It is well settled that if no criminality is made out in a case arising out of civil nature, criminal action cannot be allowed to be proceeded. In the case in hand, the will is the subject matter and in view of that, no criminality is made out, as such, the argument of Mr. Jitendra Shankar Singh is not being accepted by this Court. If the criminality is not made and criminal proceeding will be allowed to continue, that will also amount to abuse of process of law. 15. The complainant cannot be permitted to institute a criminal prosecution on the allegation that the will is a forged one. The question of will have to be decided by the Civil Court after recording the evidence and hearing the parties in accordance with law. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of Sardool Singh and another v. Smt. Nasib Kaur, reported in 1987 Supp 1 SCC 146. Paragraph 2 of the said judgment reads as under : “2. 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. 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. 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 hi the Court of the Judicial Magistrate, First Class, Chandigarh in the case entitled Smt.Nasib Kaur v. Sardool Sinqh. This will not come in the way of institutions 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.” 16. In view of the above facts, reasons and analysis, the Court comes to a conclusion that for a civil wrong, if any, criminal colour has been provided, it is deprecated time and again by the High Courts as well as Hon'ble Supreme Court and this is a fit case to exercise power under Section 482 Cr.P.C., as such, the entire criminal proceeding including the order taking cognizance dated 06.04.2019 in connection with Complaint Case No.4954 of 2018, pending in the Court of the learned S.D.J.M., Ranchi are, hereby, quashed. 17. Accordingly, this petition is allowed and disposed of. 18. It is made clear that so far as Probate Case No.7 of 2016 is concerned, that will be decided in accordance with law by the learned Court without prejudiced to this order as this order has been passed only considering criminal aspect of the matter.