Allahabad High Court
Smt. Usha Devi And Another vs State Of U.P. And Another on 9 September, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:-07.08.2019 Delivered On:-09.09.2019 Case :- APPLICATION U/S 482 No. - 13903 of 2016 Applicant :- Smt. Usha Devi And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vishnu Swaroop Srivastava Counsel for Opposite Party :- G.A.,A.P.N. Giri Hon'ble Om Prakash-VII,J.
1. Heard Shri Vishnu Swaroop Srivastava, learned counsel for the applicants, Shri Arvind Pramod Dubey, Advocate holding brief of Shri Ashok Kumar Giri, learned counsel for the opposite party no. 2 as well as learned AGA for the State.
2. The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash the entire proceeding of Complaint Case No. 262 of 2015 (Chandrawati Devi Vs. Usha Devi & others) as well as impugned summoning order dated 27.02.2016, under Sections 419, 420, 467, 468, 504, 506 IPC, Police Station Kotwali, District Gorakhpur pending in the court of Additional Chief Judicial Magistrate-Ist, Gorakhpur. Further prayer has been made to stay the aforesaid case.
3. Brief facts of the present matter are as follows:-
4. One application under Section 156(3) Cr.P.C. was moved by opposite party no. 2 Smt. Chandrawati Devi before the concerned Magistrate mentioning therein that her brother Satya Narayan was unmarried and issue-less and was also owner of House Nos. 289 and 291 situate in Deevan Bazar, Police Station Kotwali, District Gorakhpur. Applicants' brother Satya Narayan died on 16.10.2013. As per averments made in the application, opposite party no. 2 Smt. Chandrawati Devi was the sole owner of the property of Satya Narayan. Applicant no. 1 Smt. Usha Devi and her husband Uma Shankar were residing in the aforesaid houses on the basis of permission granted by the brother of the opposite party no.2. It is also mentioned that after death of Satya Narayan, a forged unregistered will dated 02.02.2013 was prepared by applicant no. 1 Smt. Usha Devi and claiming the owner of the aforesaid houses moved mutation application in the Nagar Nigam, Gorakhpur to mutate the name of the applicants and affidavit was also filed by the applicant no. 1 before the Assistant City Commissioner mentioning therein that Satya Narayan and Uma Shankar were the real son of Batohi Ram. Since Satya Narayan was issue-less, will-deed was executed by Satya Narayan in favour of the applicants. It is also disclosed in the application under Section 156(3) Cr.P.C. that name of the father of Uma Shankar is Moti Lal and he was resident of Village Sohanariya Tappa Tarkulva, Pargana Shahjahanpur, District Deoria. To substantiate this facts, vakalatnama filed by Uma Shankar in the proceeding under Section 34 of Land Revenue Act was also referred. Thus, prayer was made that a forged will-deed was prepared by the applicants after the death of Satya Narayan to grab the property owned by the brother of opposite party no. 2. It appears that application under Section 156(3) Cr.P.C. was treated as complaint and evidence was collected there-on. Thereafter summoning order dated 27.02.2016 was passed against the applicants for the offence under Sections 419, 420, 461, 468, 504, 506 IPC, which is the subject matter in the present application.
5. Counter and rejoinder affidavits have been exchanged between the parties.
6. It is submitted by learned counsel for the applicants that no prima facie case is made out in the present matter against the applicants. Criminal prosecution on the strength of averments made in the complaint cannot go-on. It is a purely civil nature dispute. One civil suit is pending between the parties instituted by the opposite party no. 2. Name of the applicants were mutated in the revenue record on the basis of said will-deed. Since husband of the applicant no. 1 was the real brother of Late Satya Narayan and they were residing alongwith him in the disputed house and were looking after him, therefore, Satya Narayan in his life time has executed will-deed in favour of the applicants regarding the house in question. Entire allegation levelled in the complaint as well as in the statement under Sections 200 & 202 Cr.P.C. are false. It is further submitted that concerned Magistrate while passing the summoning order did not take into account these facts and has permitted to continue a criminal case, which is purely civil nature dispute. At this juncture, learned counsel for the applicants placed reliance of the annexure no. 3, the receipt issued by the Nagar Nigam as well as the will-deed and also the annexure no. 5 the civil suit filed by the opposite party no. 2 herself. Learned counsel for the applicants also placed reliance on the law laid down in the case of Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, AIR 1988 SC 709.
7. On the other hand, learned AGA as well as learned counsel for the opposite party no. 2 argued that a forged will-deed has been prepared after the death of Satya Narayan and same was acted upon on the basis of application moved by the applicants before Nagar Nigam, therefore, all the offences levelled against the applicants are attracted. Will-deed is unregistered document. It is also argued that later-on, on the application of the opposite party no. 2, effect and operation of the mutation order passed in favour of the applicants on 13.03.2014 was set aside. Uma Shankar is not the real brother of Satya Narayan, rather he is the resident of different village and his father name is Moti Lal. To substantiate this fact, learned counsel for the opposite party no. 2 also referred to annexure no. 2 of the counter affidavit and further argued that husband of opposite party no. 2 himself has filed vakalatnama in the proceeding under Section 34 of Land Revenue Act before the Nayab Tehsildar, Rampur, showing himself the son of Moti Lal resident of Village Sohanariya Tappa Tarkulva, Pargana Shahjahanpur, District Deoria. It is further submitted that specific allegation against the applicants have been levelled for preparing a forged will-deed. Thus, it cannot be said that a criminal prosecution cannot continue. All the ingredients of the offences levelled in the present matter are available. There is no illegality, infirmity or perversity in the impugned order. Criminal prosecution as well as civil suit both can continue in the present matter. A prima facie case is made out to proceed with trial.
8. I have considered the rival submissions and have gone through the entire record carefully.
9. Before dealing with the submissions raised across the Bar, I find it necessary to quote the para no. 7 of the Madhavrao (supra) case.
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima faice establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
10. In this matter, as is evident from the record, allegation against the applicants is that they have prepared a forged will-deed of Late Satya Narayan. Opposite party no. 2 claimed herself to be the real sister of Late Satya Narayan. It is also admitted fact between the parties that Satya Narayan was unmarried and issue-less. As per allegation made in the complaint, applicants were residing in the houses concerned on the basis of permission granted by Satya Narayan. Disputed facts between the parties is that said will-deed is forged one and was prepared after the death of Satya Narayan. It is also disputed fact between the parties that whether Uma Shankar was the real brother of Satya Narayan or he was the son of Moti Lal resident of Village Sohanariya Tappa Tarkulva, Pargana Shahjahanpur, District Deoria.
11. Copy of the Will-deed annexed with the application reveals that will-deed is prepared on 02.02.2013 whereas Satya Narayan is said to have died on 16.10.2013. Receipt furnished by the applicants' side reveals that name of Uma Shankar was also mutated over the disputed houses in Nagar Nigam. Counter affidavit discloses that mutation order on the basis of unregistered will-deed passed by the Competent Authority was canceled. If the evidence annexed with the counter affidavit and the present application under Section 482 Cr.P.C. are compared with each other, version of the parties require leading of evidence. Documents annexed with the application are not uncontroverted documents. Specific plea of the opposite party no. 2 is that Uma Shankar is not the real brother of Late Satya Narayan rather he is the son of Moti Lal whereas the name of the father of the opposite party no. 2 and Satya Narayan was Batohi Ram. If the law laid down in Mahadevrao (supra) case as has been quoted here-in-above is compared with the facts and evidence of the present matter, it can safely be held that a prima facie case to proceed with the trial on the strength of allegation levelled in the complaint as well as evidence furnished in support of complaint is made out. In the said will-deed executant has disclosed that Uma Shankar was real brother whereas vakalatnama of Uma Shankar annexed with the counter affidavit filed in a proceeding under Section 34 of Land Revenue Act reveals that Uma Shankar was the son of Moti Lal. If the parentage name of Uma Shankar and Satya Narayan shown in the documents mentioned here-in-above are taken into consideration, it cannot be held that summoning order passed in the matter is illegal and it is a purely civil nature dispute. Since specific allegations against the applicants for preparing a forged will-deed after the death of Satya Narayan and also filing of an affidavit mentioning false facts before the Nagar Nigam for mutation have been levelled, therefore, in the opinion of court, criminal prosecution started in the present matter cannot be said to be abuse of process of law. No benefit goes to the applicants with the law laid down in Madhavrao (supra) case as the facts of the present matter and the facts of the case law relied upon by the learned counsel for the applicants are entirely different with each other.
12. Thus, on the basis of aforesaid discussions, prayer made in the application is not liable to be allowed.
13. Accordingly, the present application u/s 482 Cr.P.C. is dismissed.
Order Date :- 09.09.2019 Sanjeet