Punjab-Haryana High Court
Gopal Dass & Ors vs State Of Haryana & Anr on 10 March, 2023
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2023:PHHC:048534
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-22688-2010 (O&M)
RESERVED ON: 20th FEBRUARY, 2023
PRONOUNCED ON: 10.03.2023
GOPAL DASS & OTHERS
.....PETITIONERS
VERSUS
STATE OF HARYANA AND ANOTHER
.....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL.
Present: Mr. R.S. Rai, Sr. Advocate with
Mr. Karan Pathak, Advocate,
Mr. D.S. Khurana, Advocate and
Mr. Farhad Kohli, Advocate
for the petitioners.
Mr. Ashok Kumar Sehrawat, DAG, Haryana.
Mr. Prateek Gupta, Advocate with
Mr. Rahul Soi, Advocate
for respondent No.2.
****
SANDEEP MOUDGIL, J The jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code") has been invoked seeking quashing of FIR No. 77, dated 23.06.2010, under Sections 420, 465, 467, 468 and 471 of the Indian Penal Code, 1860 (for short 'IPC') registered at Police Station Radaur, District Yamunanagar (Annexure P-1) and all subsequent proceedings arising therefrom.
The factual matrix of the prosecution case unfolds with admitted facts reflecting the execution of Will way back on 14.04.1937 by 1 of 37 ::: Downloaded on - 06-06-2023 01:50:07 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 2- 2023:PHHC:048534 Banu Mal in favour of this daughter Munni Devi bequeathing the entire estate in her favour. Thereafter, the second Will came into being also executed by Banu Mal dated 27.03.1943 in favour of Raghubir Singh father of Devi Sarup giving only a life estate and also to treat Munni Devi as his daughter in the said Will and binding Raghubir Singh to pay an amount of Rs.100/- to Munni Devi for each harvest out of the income from the said property. The Will further consisted of the rights to be bequeathed of entire property to the legal heirs of Munni Devi, after the death of Raghubir Singh. On 26.02.1954, mutation No. 1427 was entered on the basis of one oral 'Hiba' allegedly made by Banu Mal @ Banu Ram in favour of Devi Sarup son of Raghubir Singh, Maya Devi wife of Devi Sarup and Kesho Devi wife of Raghubir Singh for a land measuring 835 kanals 7 marlas within the revenue estate of Village Rapri, District Yamuna Nagar. The said mutation was sanctioned on 02.03.1954. The pertinent aspect turning the whole the case came to light that Mutation Nos. 1422, 1423 dated 28.02.1954 show that the consolidation in the village Rapri commenced on 25.08.1952 and completed on 28.02.1954, which creates a doubt to the genuinity of mutation entered on 26.02.1954 and sanctioned on 02.03.1954. It is noted here that Devi Sarup and others raised claim of possession and ownership over the land in question on the basis of Mutation No. 1427, sanctioned on 02.03.1954.
Banu Mal died having left only one legal heir i.e. Munni Devi who breathed his last at Janoli Khera, Saharanpur (UP) on 14.11.1954 due to various ailments where he was confined to bed for quite a long time. It has also came on record that certain alienation were made by various other 2 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 3- 2023:PHHC:048534 persons as well over the land in question. Pawan Kumar Gupta son of Munni Devi preferred a Civil Suit on 11.10.1973 for permanent injunction restraining Raghubir Singh-defendant from alienating the suit property as was also stipulated in the 2nd Will dated 27.03.1943 urging that Raghubir Singh would hold the property as life estate without any power to alienate. The said suit was dismissed 11.10.1973, which was reversed by Lower Appellate Court vide its judgment and decree dated 24.02.1976 and RSA No. 586 of 1976, titled "Raghubir Singh vs. Pawant Kumar" was also dismissed by this Court vide order dated 01.06.1984 (Annexure P-2), holding that intention of testor Banu Mal is clear from the Will that he wanted to give his property to the children of his daughter-Munni Devi after the death of Raghubir Singh. It would not be out of place to mention here that in the said civil litigation the interpretation of Will dated 27.03.1943 was in question along-with locus-standi of the plaintiff to file the suit. While passing the judgment in RSA No. 586 of 1976, an oral Hibaba dated 26.02.1954 was made and on that basis this Court had declared the Will dated 27.03.1943 as life estate.
Thereafter, Veena Nirwani wife of S.K. Nirwani daughter of Munni Devi @ Jiwani as her legal heir and being grand-daughter of Banu Mal @ Banu Ram preferred a Civil Suit bearing No. 185 of 2019 for declaration with consequential relief of possession and permanent injunction challenging the Mutation No. 1427 dated .02.03.1954 alleging the same to be illegal, null and void and is an act of fraud and mis- representation of facts and therefore ascertaining that it is not binding on the rights of Veena Nirwani and proforma respondents No. 5 to 9 as well.
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The plaintiff therein, has also questioned the subsequent transfer, gift of the part of the suit land by defendants No.1 to 3 vide mutations and sale deeds as well as subsequent enteries in the revenue record on the strength of being legal heirs of Munni Devi (Annexure P-3).
The said suit was decreed vide judgment and decree dated 30.10.1996 declaring the subsequent sale deeds, mutations to be illegal, null and void and ineffective, inoperative or ultra vires and further holding that the same are not binding upon the plaintiff-Veena Nirwani, who happens to be the complainant in the present FIR as well.
Three appeals were preferred by defendants separately and during the pendency of those appeals before Ist Appellate Court, a compromise is alleged to have been entered into between Devi Sarup and Veena Nirwani and the same was filed in the afore-said civil suit but in the absence of Veena Nirwani and the respondents. The other two appeals were also disposed off in view of the said compromise.
Sneh Gupta another daughter of Munni Devi immediately on coming to know about the said fact alleging the same to be fraudulent at the behest of respondents-accused Nos. 1 to 4 and 33 moved an application for setting aside the said compromise wherein issues were framed vide order dated 29.05.2005 and finally the compromise dated 25.04.19098 was held to be illegal, null and void and was accordingly set aside.
All the three appeals were ordered to be restored at their original number, against which a revision petition bearing No. CR No. 6473 of 2005 was preferred before this Court. Aggrieved of the order passed in the said revision petition, Sneh Gupta has preferred SLP bearing Civil 4 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 5- 2023:PHHC:048534 Appeal No. 1085 of 2009 before the Apex Court, which was dismissed on the ground of limitation. It is in this background instant FIR No. 77, dated 23.06.2010, under Sections 420, 465, 467, 468 and 471 of the Indian Penal Code, 1860 (for short 'IPC') has been registered at Police Station Radaur, District Yamunanagar and aggrieved against the same the instant petition has been preferred for quashing of the afore-said FIR by the accused- petitioners.
The petitioners have sought quashing of the FIR in question raising three following questions of law:-
(i) The FIR in question has been lodged after an un-explained delay of more than 56 years alleging that 'Hibba' dated 26.02.1954 to be a result of fraud and mis-representation;
(ii) The dispute raised in the instant FIR giving it to a colour of criminal offence already stands adjudicated on the civil side up to the Apex Court;
(iii) No offence under Sections 420, 465, 467, 468 and 471 IPC could be made out as all the essential ingredients are missing;
Mr. R.S. Rai, learned Senior Counsel for the petitioners has contended that in the FIR in question it has been alleged that Banu Mal, maternal grand-father of the complainant had never appeared before any authority and in fact some other person impersonated himself as Banu Mal and got the mutation sanctioned and on that account an oral 'Hibba' dated 26.02.1954 was created on the basis of which a Will dated 27.03.1943 was declared as life estate. It has been asserted that the present FIR has been lodged on 23.06.2010 i.e. after an inordinate delay of 56 years.
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Learned Senior Counsel has laid much stress to the effect that before lodging of the instant FIR the parties were involved in three set of litigation and out of which first one was Civil Suit preferred by Pawan Kumar Gupta son of Munni Devi wherein upto this Court in RSA No. 586 of 1976 vide judgment and decree dated 01.06.1984 (Annexure P-4) the Will dated 27.03.1943 was held as life estate in favour of Raghubir Singh (first cousin of Banu Mal); the second round of litigation was initiated by Smt. Veena Nirwani, daughter of Munni Devi (sister of the complainant), who filed a suit in the year 1989 challenging oral 'Hibba' dated 26.02.1954 along-with mutation No. 1427 sanctioned on 02.03.1954, which was entered into on the basis of the afore-said oral 'Hibba'. The said suit was decreed vide judgment and decree dated 30.10.1996 while setting aside the mutation No. 1427 along-with all subsequent alienation made thereafter. Apart from this the third round of litigation was in the form of an application dated 28.02.2002 filed by Smt. Sneh Gupta (sister of the complainant) for setting aside the compromise dated 25.04.1998 executed by Smt. Veena Nirwani, during the pendency of appeal preferred against the judgment and decree dated 30.10.1996 on the ground that the afore-said judgment and decree had conferred certain rights in favour of her, complainant and other brothers and sisters apart from Veena Nirwani and therefore entering into a compromise by Veena Nirwani alone is not binding upon them. The said application was vehemently contested by the present petitioners, however, the same was allowed and a civil revision petition was preferred before this Court against the order dated 29.09.2005 passed by Additional District Judge, Jagadhari, which was allowed vide order dated 6 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 7- 2023:PHHC:048534 13.09.2006 and SLP against the same was preferred by Sneh Gupta, which was dismissed by the Apex Court vide order dated 17.02.2009 (Annexure P-5).
It is in this background learned Senior Counsel for the petitioners has raised the plea of delay in registration of instant FIR.
The second leg of argument raised by learned Senior Counsel for the petitioners revolves around the submission that on the civil side the issue which has now been given the shape of a criminal offence in the present FIR stands adjudicated up to the Apex Court. Learned Senior Counsel has argued that there is no substance in any of the allegation as alleged in the FIR wherein assertions have been made against Gopal Dass and Bhopal Kumar, grand-sons of Raghubir Singh, who were not even born at the time when the mutation was sanctioned i.e. on 02.03.1954. Learned Senior Counsel has drawn attention of this Court to the statement made by Banu Mal before the revenue authority to the effect that he was not having any child and wife and that he is gifting the property by way of earlier gift in favour of Kesho Devi, Devi Sarup and Maya Devi and therefore now the complainant-respondent No.2 has estopped from saying that 'Hibba' dated 26.02.1954 was a result of fraud and mis-representation with the vague averment that Banu Mal never appeared before any authority and some other person actually impersonated in his place while managing the sanction of mutation dated 26.02.1954 on the basis of that oral 'Hibba'. It has been also asserted by learned Senior Counsel that respondent No.2 was although well aware of the factual position while getting the FIR in question registered under garb of word 'Ballaud' as mentioned in the 7 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 8- 2023:PHHC:048534 mutation in which pertains to the Will of Banu Mal as well which also mentions about the married daughter of Banu Mal who did not have any son and as per law of inheritance the married daughter is not considered as part of family in respect to the share in the property, accordingly revenue authorities had used the word 'Ballaud'.
Learned Senior Counsel has argued that the petitioners were not even present at the time of execution of said mutation and all these factual aspects have been concealed while getting the instant FIR registered with ulterior motives and with the sole idea just to cause harassment the petitioners and also to 27 bona-fide purchasers who had purchased the property up till 1981, therefore, prayed for quashing of instant FIR being an abuse of process of law as the issues raised therein, are already part of the civil litigation consisting of three different rounds, which stands adjudicated.
On the last legal aspect, learned Senior Counsel submits that no offence under Sections 420, 465, 467, 468 and 471 IPC is made out as the basic ingredients of inducement, forgery and fabrication are not at all evident from the whole version of complaint itself. It is the assertion raised on behalf of the petitioners that since nowhere it has been alleged that Banu Mal was present at the time of commission of alleged offence and therefore, he could not have been induced for delivering the property to the accused added with the fact that the mutation in question was got sanctioned by Banu Mal in the presence of Raghubir Singh and one Lambardar Munishi and during his life time, Banu Mal never denied the oral 'Hibba' which is now been sought to be disputed.
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Learned Senior Counsel has concluded his submissions further stating that there is no question of inasmuch as neither any allegation with regard to preparation of false document or part of a document with an intent to cause damage or injury to the complainant or to causing parting away with the property. Learned Senior Counsel has put reliance, to support his argument, on a judgment Prof R.K. Vijayasarthy and another vs. Sudha Seetharam and another; (2019) 16 SCC 739 wherein, it was held that the condition necessary to an act to constitute an offence under Section 415 IPC is that there was dishonest inducement by the accused and also to the effect where the ingredients required to constitute a criminal offence are not made out from a bare reading of a complaint the continuation of criminal proceedings is an abuse of process of law. The another case law brought to the attention of this Court pronounced by the Supreme Court in Mohammed Ibrahim and another vs. State of Bihar & another; (2009) 8 SCC 751, wherein, it was held that there is growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essential and purely civil in nature, obviously either to apply pressure on the accused or out of enmity towards the accused or to subject harassment to the accused. Apart from that in particular a reference has been to para Nos. 8 to 17, 24 and 28, which are reproduced as under:-
"8. Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under section 467 or section 471 of Penal Code. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may 9 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 10- 2023:PHHC:048534 extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 470 defines a forged document as a false document made by forgery.
9. The term "forgery" used in these two sections is defined in section
463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below :
"464. Making a false document.--A person is said to make a false document or false electronic record--- First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or 10 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 11-
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Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. [Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009]."
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), 11 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 12- 2023:PHHC:048534 can be said to have made and executed false documents, in collusion with the other accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
12. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the 12 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 13-
2023:PHHC:048534 intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted. Section 420 IPC The term `fraud' is not defined in the Code. The dictionary definition of `fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the 13 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 14- 2023:PHHC:048534 Contract Act, 1872 defines `fraud' with reference to a party to a contract. In Dr. Vimla vs. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression `defraud' thus "The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." To `defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (sec.206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (sec. 207).
(iii) Fraudulent suffering or obtaining a decree (sec. 208 and
210)
(iv) Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)
(vi) Fraudulent acts relating to stamps (sec. 261-261)
(vii) Fraudulent use of false instruments/weight/measure (sec.264 to 266)
(viii) Cheating (sec. 415 to 420)
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(ix) Fraudulent prevention of debt being available to creditors (sec. 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423).
(xi) Forgery making or executing a false document (sec. 463 to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477)
(xiii) Fraudulently going through marriage ceremony (sec.496). It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law. Section 504 of Penal Code."
Further on the issue of Sections 465, 467, 468 and 471 IPC, the judgment in Sheila Sebastian vs. R.Jawahar Raj and another; (2018) 7 SCC 581; has been taken in support highlighting para Nos. 19, 22 and 25 thereof, which read as under:-
19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that 15 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 16-
2023:PHHC:048534 forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery."
Learned State counsel has contended that after conducting a thorough enquiry on the complaint moved by respondent No.2, the afore- said FIR was registered against 31 persons including the petitioners. The assertion is that the bone of contention in the matter is an oral gift deed 16 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 17- 2023:PHHC:048534 dated 26.02.1952 alleged to be executed by Banu Mal in favour of Devi Sarup and on the basis of the said gift deed a mutation No. 1427 dated 02.03. 1954 was got sanctioned.
Mr. Prateek Gupta, learned Advocate appearing on behalf of respondent No.2-complainant has raised certain preliminary objections including the maintainability of the present petition being premature on account of the fact that the matter is still under investigation with the investigating agency and the instant petition involves disputed questions of facts which cannot be agitated before this Court invoking jurisdiction under Section 482 Cr.P.C.
On the first contention with regard to the delay in lodging the FIR, Mr. Gupta submits that the alleged delay whatsoever even if taken to be a gospel truth, in any manner, can be termed as fatal or to the prejudice of the petitioners-accused. The parties were entangled in civil dispute in three rounds as has been averred by the petitioners themselves before this Court, which lastly got adjudicated before the Apex Court in Civil Appeal No. 1085 of 2009 vide judgment dated 17.02.2009 (Annexure P-5) and observations qua the malafide and fraudulent intention against the petitioners came to be made giving a right to the respondent No.2 to lodge the instant FIR which was registered on a complainant made on 07.06.2010 and after preliminary inquiry and investigation FIR No. 77 was registered on 23.06.2010 against 31 persons including the petitioners.
It is also submitted on behalf of respondent No.2 that the question of delay for a criminal act would not arise at this stage as it is for the trial Court to examine the same after leading evidence in that respect.
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Even otherwise delay has been duly explained in the FIR and as such in reality there is no delay, since a complaint was made lodged after the judgment of Supreme Court dated 17.02.2009 (Annexure P-5).
Coming to the second issue, as to whether the findings of Civil Court would be binding in the criminal proceedings initiated by registration of present FIR and on that account whether registration of FIR would be an abuse of process of law, learned counsel for respondent No.2 would contend that he was not a party so as to defend the plea in the civil litigation and even the alleged compromise in itself establish fraud while placing heavy reliance upon order XXIII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to urge that a compromise decree is not binding on such defendants who are not parties thereto, whereas both the civil suits were decreed in view of the compromise, which is a fraudulent and void document as specific observation has been made by the Apex Court as well in its judgment dated 17.02.2009 (Annexure P-5). He has also submitted that since the Regular Second Appeal was allowed by this Court the findings of civil court are not binding upon him, as the judgment is not in rem.
Mr. Gupta has further argued that there is a fraud and the plea of Sneh Gupta was rejected merely on technical ground of delay and without adjudicating the substantial question involved on merits, to which as well the respondent No.2 was not a party and, therefore, it cannot be binding upon him.
Mr. Gupta lastly on the question of whether offence under Sections 420,465,467, 468 and 471 IPC is made out, contends that the 18 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 19- 2023:PHHC:048534 present petitioners along-with others are the beneficiary of the property in question by way of forged and fabricated documents i.e. Will, mutation and other revenue record. Even the alleged compromise has been entered into with mala-fide and fraudulent intention on the part of the petitioners which is a one-line document without making each and every person to the lis who were party to the said agreement. It has been also with much vehemence argued that had their been no mens rea and intention to deceive and cheat on the part of the petitioners, they would have returned the share of respondent No.2 and would not have fabricated the documents through which they derived undue advantage and benefit, which has been duly recorded in its order dated 17.02.2009 by the Supreme Court, as well. The whole intent of the petitioners along-with other persons is, to usurp the big chunk of property by unlawful means and are still trying to justify their such illegal act and omissions, so committed while enjoying the undue benefit derived therefrom by inducement and all ingredients for the offences mentioned in the FIR are prima-facie made out on these facts as has been categorically recorded in the FIR from the very beginning itself.
Having heard learned counsel for the respective parties. From the rival contentions of the learned counsel for the respective parties the bone of contention emerged is an oral gift deed dated 26.02.1954 as alleged to have been executed by Banu Mal son of Ganshi Lal in favour of Devi Sawroop son of Raghubir Singh (cousin brother of Banu Mal, Maya Devi wife of Devi Swroop and Kesho Devi wife of Raghubir Singh) pertaining to the land measuring 835 kanals 7 marlas wherein, mutation No. 1427 dated 02.03.1954 was sanctioned in favour of 19 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 20- 2023:PHHC:048534 beneficiaries of said oral gift deed. The complainant Kamal Kumar Gupta is maternal grandson of Banu Mal who has alleged that Raghubir Singh procured the afore-said oral gift fraudulently with deceitful intention at that very stage itself by impersonating some other person as Banu Mal stating that Banu Mal never visited the office of Tehsildar for execution of oral gift in favour of Devi Sawroop etc. Veena Nirwani sister of the complainant filed a civil suit No.185 of 1989 to declare the mutation No.1427 dated 02.03.1954 and all other subsequent revenue entries/sale deed etc. as null and void which was decreed by the ACJSD, Yamunanagar vide judgment and decree dated 30.10.1996 in favour of Veena Nirwani-plaintiff holding the gift and mutation so entered on the basis of said gift to be null and void, illegal and an act of fraud and mis-representation by wrongful means to deceit the children of Munni Devi @ Jiwani daughter of Banu Mal.
As per the investigating agency another Will dated 27.03.1943 as executed by Banu Mal in favour of Raghubir Singh came into light from the office of Deputy Commissioner, Karnal and mutation Nos.1422, 1423 and 1427 were also obtained and thereafter statement of Pawan Kumar Gupta was recorded on 20.07.2010, of Atma Ram son of Antu Ram-servant of Banu Mal on 23.07.2010 alongwith Munni Devi on 27.07.2010 and the case was transferred to CIA, Yamunanagar on 21.09.2010. It is also a matter of record that investigation of the case is still going on.
To answer the first issue with regard to delay in lodging the instant FIR, this Court has clinically gone through the contents of FIR dated 23.06.2010 (Annexure P-1/T) wherein the occurrence of offence has been 20 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 21- 2023:PHHC:048534 recorded as an recurring cause of action 'continuously from 1954 and in that context the events right from 27.03.1943 have been explained leading upto the adjudication/disposal of SLP by the Supreme Court dated 17.02.2009 (Annexure P-5). It is at this stage a final adjudication also came on record with regard to the compromise held as not binding upon the right of person who are not party to the compromise in the light of Order 23 Rule 3 CPC which would not apply with the observation that suit cannot be withdrawn by a party after he acquires privilege and further that the permission to withdrawn the suit cannot be granted to all the accused persons who has interests in the property by reason of judgment and decree passed in the suit. The Apex Court specifically hold the compromise to be null and void. Further a reading of the said judgment would efficiently clarifies that the plea of Sneh Gupta was dismissed only on the ground of limitation for filing the same after lapse of 30 days and not on merits but the observations with regard to the fraudulent act on the part of the accused petitioners has given the offence recurring cause in favour of the respondent-complainant even on 17.02.2009 (Annexure P-5). Even otherwise admittedly there were separate three rounds of civil litigations which concluded finally before the Supreme Court wherein observations with regard to the title came to be made in favour of the complainant who lodged the complaint and after investigation the instant FIR was registered on 23.06.2010.
In normal circumstances inordinate delay in lodging FIR do raises the possibility of concoction of evidence but if the delay is satisfactorily explained the issue is not only ought to be decided on merits but as an abundant duty bestowed over it the court shall adjudicate the 21 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 22- 2023:PHHC:048534 issues before it once in the given facts and circumstances, it is supported by cogent and acceptable explanation offered for delay. In the instant case, the delay has been satisfactorily explained in FIR itself and this Court is fully convinced that the chances of any such concoction of any evidence etc. are almost nil as the whole case revolves around documentary evidence, which is to be tested by leading evidence in accordance with law with regard to the offences under Sections 420, 465, 467, 468 and 471 IPC. The similar view has been taken by three Judges Bench of the Supreme Court in "P Rajagopal and ors vs. State of Tamil Naidu" (2019) 5 SCC 403; of which para 8 is of much relevance, which reads as under:-
"8. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.
In the matter on hand, the entire family of PW1 was at the mercy of Accused No. 1, who was very rich and influential. Accused No.1 acted as a benefactor to the family and had helped them financially and otherwise on multiple occasions. Under such circumstances, PW1 might have been reluctant to lodge a complaint immediately after the occurrence of the said incident, especially when Accused No. 1 had employed his henchmen to keep the house and movements of PW1 and her family under surveillance. Moreover, no material has been
22 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 23- 2023:PHHC:048534 brought to our notice by the defence to prove that the delay in filing the F.I.R. was with the intention of false implication. Thus, the explanation given by PW1 for the delay remains untainted.
In our considered opinion, looking at the totality of the facts and circumstances, the Trial Court and the High Court were justified in condoning the delay and in concluding that the said delay was not vital to the case of the prosecution." Now coming to the second question raised by learned Senior Counsel for the petitioners that in fact the issue raised in the FIR is civil in nature, which stands already adjudicated upto the Supreme Court in Civil Appeal No. 1085 of 2009 including in RSA No.586 of 1976, decided on 01.06.1984 before this Court wherein the main question for determination was whether Pawan Kumar Gupta-plaintiff in the suit had locus standi to file the said suit for interpretation of the Will by Banu Mal dated 27.03.1943.
This contention does not find force in law as the findings of civil court are not binding on the criminal court wherein the allegations for forgery cheating etc. have been alleged particularly in the light of the fact that the civil dispute to whatever extent adjudicated the nature of issues was purely civil in nature but specific observations made in the judgment by the Supreme Court itself in Civil Appeal No. 1085 of 2009 shows that the offences are prima facie writ large on the face of it which needs to be tried by the competent court of law.
The afore-said observation finds strength for this Court from a judgment of the Apex Court consisting of Hon'ble three Judges Bench in "Syed Askari Hadi Ali Augustine Imam & Anr vs. State (Delhi Admn.) 23 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 24- 2023:PHHC:048534 &Anr." as has been discussed and held therein particularly vide para Nos. 9 & 11, which reads as under:-
"9. Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case.
The question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case.
11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.
Another Constitution Bench of this Court had the occasion to consider a similar question in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. [(2005) 4 SCC 370] wherein it was held:
24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340 CrPC contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides 24 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 25- 2023:PHHC:048534 for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii)."
Relying inter alia on M.S. Sheriff (supra), it was furthermore held:
"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
25 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 26- 2023:PHHC:048534 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." The question yet again came up for consideration in P. Swaroopa Rani vs. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884], wherein it was categorically held:
"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."
In the light of the afore-said case law and considering the observations made by the Supreme Court, it is crystal clear before this Court that the question in dispute in the civil proceedings was totally distinct but observation made therein, also unfolded the criminal part involved in the facts and circumstances of the present case once read in totality, is answered against the petitioners.
Lastly the question as to whether the offence under Sections 420, 465, 467, 468 and 471 IPC is made out or not as has been argued by learned Senior Counsel with much vehemence asserting that there is no deceitful of dishonest intention coming forth from plain reading of the FIR and neither there is any overt act of depriving the complainant-respondent of property in question in any manner whatsoever. Much stress has also been laid while submitting that if considering the arguments of complainant to be true to the effect tat Banu Mal was not present at the time of execution of Will and entry of mutation in the office of Tehsildar, the question of attracting an offence under Section 420 IPC does not arise at all.
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There is specific stand taken by the complainant that somebody else was made to impersonate as Banu Mal at the very time in the office of Tehsildar when the documents were executed and entries in the revenue record were effected. Apart from such counter from the complainant, the observations made by the Supreme Court while adjudicating Civil Appeal No. 1085 on 17.02.2009 are of much significance and cannot be ignored at this stage, which are as under:-
"Things as they stand now, there cannot be any doubt or dispute that the appellant is one of the heirs and legal representatives of Banu Mal being a daughter of Munni Devi, she, therefore, indisputably was entitled to a share in the property of Munni Devi as one of her legal heirs. Even if order XXXIII, Rule 1 of the code of civil Procedure was applicable, in terms of Rule 1A of the said order, the appellant as a defendant in the suit could have applied for being transposed as a plaintiff in terms of Order 1 Rule 10 of the Code of Civil Procedure and the Court was bound to pass an order having due regarding to the question as to whether, she had 3 substantial question to be decided as against any of the other defendants. Appellant, indisputably claimed and was found to have rightly claimed a share in the suit property. Having got a decree in her favour, she was entitled to protect the same. By reason of an agreement between some of the parties of otherwise a litigant cannot be deprived from the fruit of the decree.
23. Order XXIII, Rule 3 of the code of Civil Procedure provides that a compromise decree is not binding on such defendants who are not parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of.
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24. The Court has also a duty to prevent injustice to one of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial injustice. A consent decree, well-known, as is is merely On agreement between the parties with the seal of the court super added to it (See Baldevdas Shivlal and another Vs. Filmistan Distributors (India) P. Ltd. and others (1969) 3 SCC 201. Parayya Allayya Hitalamani Vs. Sri Parayya Gurulingayya Poojari and ors. JI 2007 (12) SC 352).
25. If a compromise is to be held to be binding, as is well known must be signed either by the parties or by their counsel or both, failing which Order XXIII. Rule 3 of the Code of Civil Procedure would not be applicable. See Gurpreet Singh Vs. Chatur Bhuj Goel (1998) 1 SCC 2701) In Dwarka Prasad Aggarwal (D) by IRs and another Vs. B. D. Aggarwal and others (2003) 6 SCC 230), this court held:-
"32. The High Court also failed and/ or neglected to take into consideration the fact that the compromise having been entered into between the three out of four partners could not have been termed as settlement of all disputes and in that view of the matter no compromise could have been recorded by it. The effect of the order dated 29.6.1992 recording the settlement was brought to the notice of the High Court, still it failed to rectify the mistake committed by it. The effect of the said order was grave. It was found to be enforceable. It was construed to be an order of the High Court, required to be implemented by the courts and the statutory authorities.
3.5...Even if the provisions of Order 23 Rule 3 of the code of Civil Procedure and/or principles analogous thereto are held to be applicable in a writ proceedings, the Court cannot be permitted to record a purported compromise in a casual manner. It was suo motu required to address itself to the issue 28 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 29- 2023:PHHC:048534 as to whether the compromise was a lawful one and, thus, had any jurisdiction to entertain the same.....
(See also K.Venkatachala Bhat and another v. Krishan Nayak (d) by L. RS and others (2005) 4 SCC 117).
In R. Rthianavel Chettiar and another V.V. Sivaramman and others (1999) 4 SCC 89, this court opined:
"22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawl of the suit of that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's rights. The impugned judgment of the light court in which c contrary view has been expressed cannot be sustained."
26. It is also not case where the compromise can be said to be a family arrangement. A family arrangement must be entered into by all the partieS thereto. Compliance of the requirements laid down in Order XXIII, Rule 3 of the Code of Civil Procedure is imperative in Character. A compromise or satisfaction must satisfy the conditions of a lawful agreement.
27. Causes of action of both the suits fusther nore were different. the subject matter of the suit was also different although may be overlapping to some extent. If the compromise entered into by and between the parties to suit No.303 of 1999 was to be given effect to the same for all intent and purport clearly goes to show that Bhanu Mal had the title over the property. The learned Trial Judge in Suit No.185 of 1989 having found that Bhanu Mal did not pass his title by way of oral Hiba/gift in favour of Raghbir Singh, subject to the conditions in the Will, his titlte must be held to have been 29 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 30- 2023:PHHC:048534 accepted. Bhanu Mal, therefore, could dispose of his property in accordance with law. Raghbir Singh did not acquire any title by reasons of oral Hiba, on his death subject to proof of compliance of the terms of the Will, the same must be held to have vested in Munni Devi and on her death upon her children.
28. Title to a property must be determined In terms of the statutory provision, 17 by reason, of the provisions of the Hindu Succession Act, 1956 the appellant herein had derived title to the property along with her brothers and sisters, she cannot be deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. If a party furthermore relinquishes his or her right in a property, the same must be done by a registered instrument in terms of the provisions of India Registration Act.
29. It is also well known that a suit cannot be withdrawn by a party after he acquires a privilege. In R. Ramamurthy Ayer Vs. Raja V. Rajeshwara Rao (1972) 2 SCC 721), this Court held:-
"12.Coming back to the question of withdrawal of suit in which the provisions of Section 2 and 3 of the partition Act have been invoked we find It difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under Section 2 of the Partition Act and the defendant has applied to the court fox leave to buy at a valuation the share of the plaintiff under Section 3. In England the position about withdrawal has been stated thus, in the Supreme Court Practice, 1970 at P. 334: -
"Before Judgment-Leave may be refused to a plaintiff discontinue the action if the plaintiff is not wholly dominus lities or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him." As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for Sale under Section 3 of the
30 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 31- 2023:PHHC:048534 partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. This advantage, which may or may not fulfill the jurisdical right, is meaning of a nevertheless a privilege of a benefit which the the law confers on shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the same of the plaintiff in accordance with the provisions of Section 3(1) it would only enable the plaintiff to defeat the purpose of Section 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under Section 2 instead of partitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit tO withdraw that suit the and defeat tO defendants' claim which according Crump. J., cannot be done even in a suit where the provisions of the partition Act have not been invoked.
Yet again in R. Rathinavel Chettiar VS. V. Sivaraman (1999) SCC 891,this court, stated the law, thus:-
"22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested right:
The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained."
30. A right to withdraw a suit in the suit or would be unqualified, if no right has been vested in any other party (See 31 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 32- 2023:PHHC:048534 Bijayanandan Patnaik Vs. Satrughna Sahu and Ors. (1964) 2 SCR 538) and Hulas Raj Baij Nath Vs. Firm K.B. Bass & Co.(1967) 3 SCR 886) .
31.If the contention of Mr. Dwivedi that parties had entered into a comprehensive agreement covering both the suits was correct, there was absolutely no reason as to why the appellant or others were not made parties to the second consent decree as well. While entering into a comprehensive agreement, the parties are bound to see that terms of one agreement do not come in conflict with the terms and conditions of the other. When the parties have separately entered into more than one agreement, either one is dependent of the other or both are independent of each other. In the latter case, signing of the agreement by the parties or their counsel thereon must be held to be imperative in character• Amteshwar Anand Vs. Virender Mohan Singh and others (2006) 1 SCC 148), whereupon reliance has been placed by Mr. Dwivedi is a case of amily settlement. Three agreements entered into therein were found to be in consonance with each other.
32. Herein we are not concerned with the effect of the earlier litigation. We are also not concerned with regard to the conduct of Smt. Veena Nirvani Vis-à-vis the appellant and the other defendants and/or as to whether the litigation was being fought through the lawyers of the same chamber.
"Both the suits were compromised. Indisputably, the date fixed in the matter was July, 1998. The impugned compromise petition, however, was filed on 25.04.1998. for the aforementioned purpose, the date was preponed. Indisputably, the appellant was not informed there about. She was not given any notice of preponment of the date. The question as to whether the appellant knew thereabout or not is essentially a question of fact to which we would advert to a little latter. It is, 32 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 33- 2023:PHHC:048534 however, difficult for us to agree with the High Court as also the submissions of Mr. Dwievi that the compromise was a comprehensive one.
33. The learned Additional District Judge, on the basis of the materials brought on record by the parties arrived at a finding of fact that the settlement was not a comprehensive one. He furthermore, opined that none of the respondents appeared in the witness box to substantiate the terms and conditions of the compromise nor did they examine any other witness. The purported circumstances that Smt. Veena Nirwani was at the helm of the affairs in respect of both the matters sought to be emphasized before us being not based on any material on record, we are of the opinion that the finding of the High Court that a comprehensive settlement was arrived at must be held to be wholly incorrect.
34. The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the the said jurisdiction, High Court had a limited role to play. It is not the function of the High court while exercising supervisory its jurisdiction to enter into the disputed question of fact. It has not been found by the High court and the findings arrived at by the learned Additional District Judge were perverse and/or in arriving the said findings, the learned Additional District Judge failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefore. It could intervene is there existed an error apparent on the face of the record on if any other well known principle of judicial review was found to be applicable.
(See Yeshwant Sakhlkar and another VS. Hirabat Kamal Mhamai and another (2004) 6 SCC 71).
33 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 34- 2023:PHHC:048534 It is on the aforementioned backdrop, we may consider the legal effect of non-signing of the compromise petition by the appellant herein as also the respondent nos. 4 to 8 herein.
35. We have noticed hereinbefore that not only the properties were different, the nature of the litigations was different. Even the parties were different. Both the compromise petitions do not refer to each other. Assuming that the parties knew thereabout, it is beyond anybody's comprehension as to why signature of all the parties were not obtained for the aforementioned purpose, if not for any other reason, but to satisfy the requirements of law.
36. Appeals arising out of Suit No. 185 of 1989 and suit No.303 1999 were pending before different courts and in that view of the matter it is difficult to agree with the High Court that only for that purpose, the date in the appeal was preponed. Even otherwise, in law, they are not members of the same family. They have been inherited definite share from their predecessors.
37. The question of estoppel and/or election as also the doctrine of approbate or reprobate, where upon reliance has been place, has exceptions, one of them being that there is no estopped against statute.
38. Submissions of the learned Senior counsel that Veena and the appellant were in the same boat as would appear from the fact that they had engaged lawyers from the same chamber and, in fact, the lawyer of the appellant ahd no independent practice itself would go to show that the knew about both the compromise petitions cannot be accepted. A counsel appearing for a party is expected to be independent. There is no presumption that only because two lawyers are practicing from the same chamber, they would breach their confidentially or commit some act which would amount to professional misconduct. Only because two compromise petitions were filed 34 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 35- 2023:PHHC:048534 on the same day or veena was a party to both of them, in our opinion, would not by itself lead tO any interference that appellant also knew about the second compromise through her counsel.
We would, however, deal with the question of her acquiring knowledge thereof appropriate stage.
39. Whether the preponement of the date was only at the instance of Veena or at the instance of both the parties to the consent is a matter which is of little relevant SO far as this Court is concerned in as much as the only issue which would arise for our consideration is the consequences of such preponment. If the hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given tO all the parties or otherwise also they were aware thereof.
40. In that view of the matter, it is difficult to accept the submission of Mr. Dwivedi that the appellant is estopped and precluded from raising the said contention of violation of the principles of natural justice or that only because he has sold some property, she cannot be allowed to approbate and reprobate.
Our attention has been drawn to a recent decision in Kashmir Singh vs. Union of India & ors. (2008) 7 SCC 259) wherein this court observed:-
"75. By reason of the Notification dated 19.10.1978 the Central Government has not delegated its power. The 1966 Act has an extraterritorial application, it is not in dispute that no law has been enacted either by the State of Haryana or by the State of Himachal Pradesh. In absence of any law having been enacted to the contrary, the functions under the 1966 Act must be performed by some authority. The Central Government with the consent of the state of Haryana has merely nominated the 35 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 36- 2023:PHHC:048534 State of Punjab to do so. By reason thereof, it has not delegated power. Sub-section (1) of Section 72 of the 1966 Act envisages a direction upon the Central Government. Such a direction has been issued by reason of the impugned notification. When a power has been conferred upon the State of Punjab by the Central Government, it exercise a statutory power, it would, therefore, not be a case where the functions of the State Government must be held to be confined to its territorial jurisdiction. The principle enunciated therein is unexceptional but the same has no application in the factual matrix obtaining in this case ". Thus, it is established that apparently, there is fraud and the plea of Sneh Gupta was dismissed only on the ground of technical plea of limitation and not on merits and in any case, the present answering respondent was not party in the litigation and as such, the same is not binding on the answering respondent. Apart from this, the plea of fraud vitiates everything and can be assailed in any proceedings as held by Hon' ble Supreme court of India in 1995(1) P.L.R. 293. Further, the judgment of civil court is not binding if the judgment is not in rem as per section 41 and 42 of the evidence act as has been held by Hon' ble Supreme court of India and a such, the present petition is not maintainable. The submissions made above are reiterated."
This Court is obvious of its jurisdiction being exercised under Section 482 Cr.P.C., though may be wide enough as an inherent power but is equally cautious to use it sparingly and in exceptional circumstances wherein particularly the proceedings are at the initial stage in the case in hand the investigation is still going on but the same was stalled by an interim order by this Court only.
I have thoroughly gone through the facts and allegations made in the FIR which are specific in nature categorically related to documents 36 of 37 ::: Downloaded on - 06-06-2023 01:50:08 ::: Neutral Citation No:=2023:PHHC:048534 CRM-M-22688-2010 (O&M) - 37- 2023:PHHC:048534 testamentary which are to be examined by leading evidence with regard to their genuinity. There is sufficient ingredients apparently existing to hold before this Court that these are all disputed questions of facts and are to be put to test by leading evidence during the course of trial or by the investigating agency while conducting investigation prior to filing of report, if so made out, under Section173 Cr.P.C., therefore, it declined to exercise inherent powers to quash the FIR on the ground, as well.
In the considered opinion of this Court the delay in lodging the FIR has been sufficiently explained with cogent material, the civil dispute in all the three rounds of litigation was on distinct questions and even otherwise civil proceedings have no bearing on the criminal proceedings in any manner and the petition raised disputed questions of facts as far as allegations qua Sections 420, 465, 467, 468 and 471 IPC is questioned to be made out or not.
The petition is accordingly dismissed being devoid of merits.
(SANDEEP MOUDGIL)
th
10 March, 2023 JUDGE
sham
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:048534
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