Andhra Pradesh High Court - Amravati
K.Lochana Sai Theja vs The State Of Andhra Pradesh, on 12 April, 2023
Author: K. Sreenivasa Reddy
Bench: K. Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
CRIMINAL PETITION NO.3013 OF 2022
ORDER:-
This Criminal Petition, under Section 482 Cr.P.C., is filed to quash the proceedings in C.C.No.416 of 2021 on the file of the IV Additional Judicial Magistrate of First Class, Chittoor. Petitioners herein are arrayed as A.1 to A.3 in the said case.
2. A charge sheet has been filed as against the petitioners and others for the offences punishable under Sections 193, 467, 471, 120B, 109, 506 read with 34 IPC in crime No.51 of 2019 of Chittoor II Town police station. The allegations, in brief, are stated as follows.
2nd respondent and A.2 are brothers. Their father late K.Kodandaramaiah Chetty derived property from his sister Smt.Bhagyamma through a Will dated 17.11.1959 and registered on 22.02.1960. He has five sons viz. 2nd respondent, L.W.2-K.Payanivelu Chetty and A.2 and two others Eswaraiah and K.Krishnamurthy, who died, and 2 three daughters K.Prabhavathi, K.Rajakumari and K.Jhansi. He died in testate in 1968 and thereafter his wife Smt. Manikyamma became head of the family. All the three sisters executed registered relinquishment deeds accepting monetary considerations, relinquishing their rights over the joint family properties permanently.
A.2 cheated their mother and obtained a registered gift settlement deed dated 31.05.1996 in respect of Ac.0.50 cents of land from the undivided joint land in a fraudulent manner and another registered exchange deed for Ac.0.36 cents out of Ac.3.40 cents in the year 1996. On coming to know about the same, their mother cancelled the gift settlement and the exchange deed through registered documents in the year 1997. Their mother died in the year 2004 without writing any will. Thereafter, A.2 filed partition suit in Original Suit No.951 of 2005 on the file of the II Additional Junior Civil Judge, Chittoor claiming an extent of Ac.0.50 cents under the gift settlement deed and Ac.0.36 cents under the exchange deed and his share from the remaining extent 3 of Ac.2.54 cents, and after full fledged trial, the partition suit filed by A.2 was dismissed on 15.02.2013 and the registered gift settlement deed and exchange deed were declared as „null and void‟ and a decree was passed for equal division of Ac.3.40 cents among all the brothers. Appeals in A.S.Nos.117 of 2015 and 125 of 2015 on the file of the VIII Additional District Judge, Chittoor were dismissed on 19.09.2016, and the Second Appeals preferred by A.2 vide S.A. Nos. 818 of 2016 and 819 of 2016 were also dismissed by this court on 22.01.2018.
Thereafter, A.2 along with his son A.1 and wife A.3 and A.4 and A.5 hatched a plan to knock away the extent of Ac.0.56 cents from the ancestral property and prepared an unregistered will dated 14.02.2003 allegedly executed by their mother Manikyamma, A.2 forged her signature in the presence of A.4 and A.5 and cited them as witnesses, as if she gave her share to A.1, and filed the forged document in O.S.No.330 of 2018 on the file of the Additional Senior Civil Judge, Chittoor as genuine. Final decree proceedings are pending in the aforesaid 4 suit O.S.No.951 of 2005 and A.2 created the forged unregistered will dated 14.02.2003 with an intention to gain more share and to prevent passing of final decree.
During pendency of O.S.No.330 of 2018, 2nd respondent received copy of forged unregistered will dated 14.02.2003 from the Court through certified copy. After sending the same to Truth Foundation Forensic Science Laboratory, Chennai and obtaining opinion of the expert, the present complaint came to be lodged.
3. Learned counsel for the petitioners contended that the accusation is that the subject document viz. unregistered will dated 14.02.2003 produced in the final decree proceedings in I.A.No.513 of 2019 in O.S.No.915 of 2005 on the file of the II Additional Junior Civil Judge, Chittoor, has been forged, and the authenticity of the document is an issue to be considered by the competent civil court, and hence, continuation of further impugned proceedings would prejudice rights of the petitioners in 5 setting out their case in civil court. In support of his contention, he relied on the following decisions.
(a) In Rajeshbhai Muljibhai Patel & others v. State of Gujarat and another1; (paragraphs 20 and 23)
(b) In M.Nagasanjeva Reddy v. State of A.P.2 (paragraph 13).
Relying upon the aforesaid judgments, he contends that when once a document is the subject matter of civil litigation and the civil court seized of the validity of the said document, criminal proceedings cannot be permitted to go on, while the validity of the document is pending adjudication before the civil court.
4. On the other hand, learned counsel for 2nd respondent/defacto complainant contended that a perusal of Section 195 (b) CrPC goes to show that no court shall take cognizance of any offence described in Section 193, Section 463 IPC, or punishable under Section 471, Section 475 or Section 476, IPC, when such 1 (2020) 5 SCC 794 2 2022 LawSuit (AP) 1326 6 offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, except on the complaint in writing of that Court, or of some other court to which that Court is subordinate, and in such circumstances, police are not bound to investigate into the case in respect of the said offences. But, in respect of other penal provisions, police can investigate into the case and file report into the Court. In the case on hand, police filed charge sheet for the offences punishable under Sections 193, 467, 471, 120B, 109, 506 read with 34 IPC and the learned Magistrate had taken cognizance of the aforesaid offences, and when such is the case, the learned Magistrate may be allowed to proceed with trial in respect of the other offences.
5. Perused the record.
6. In the case on hand, it is alleged that A.2 along with his son A.1 and wife A.3 and A.4 and A.5 hatched a plan to knock away Ac.0.56 cents from the ancestral 7 property and prepared an unregistered will dated 14.02.2003 allegedly executed by their mother Manikyamma, A.2 forged her signature in the presence of A.4 and A.5 and cited them as witnesses, as if she gave her share to A.1, and filed the forged document in final decree proceedings pending in I.A.No.513 of 2019 in O.S.No.951 of 2005 with an intention to gain more share and to prevent passing of final decree, and also in O.S.No.330 of 2018 on the file of the Additional Senior Civil Judge, Chittoor. 2nd respondent, after receiving copy of forged unregistered will dated 14.02.2003 from the Court during pendency of O.S.No.330 of 2018 through certified copy and after sending the same to Truth Foundation Forensic Science Laboratory, Chennai and obtaining opinion of the expert, lodged the present complaint.
7. In Rajeshbhai Muljibhai Patel & others v. State of Gujarat and another (1 supra), the Hon‟ble Apex Court held thus: (paragraphs 20 and 23 8 "20. Be that as it may, in Summary Suit No. 105 of 2015, leave to defend was granted to Respondent 2 Mahendrakumar on 19-4-2016. On the application filed by Appellant 3 in the said Summary Suit No. 105 of 2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of Respondent 2 Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No. I-194/2016 was registered on 28-12-2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in Summary Suit No. 105 of 2015, Issue 5 has been framed by the Court "whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts". When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.
23. In the result, the impugned order is set aside and these appeals are allowed. Criminal Miscellaneous Application No. 2735 of 2017 filed by the appellants is allowed and FIR No. I-194/2016 is 9 quashed. Criminal Miscellaneous Application No. 24588 of 2017 filed by Yogeshbhai Muljibhai Patel stands dismissed. Case filed by Appellant 3 Hasmukhbhai Ravjibhai Patel under Section 138 of the NI Act -- CC No. 367 of 2016 stands restored. The 5th Additional Civil Judge & JMFC, Bharuch is directed to proceed with the case in CC No. 367 of 2016 filed under Section 138 of the NI Act and afford sufficient opportunity to both the parties and dispose of the same in accordance with law. Summary Suit No. 105 of 2015 shall be proceeded in accordance with law without being influenced by any of the views expressed by the High Court in the impugned order."
In M.Nagasanjeva Reddy v. State of A.P.(2 supra), this Court held thus: (paragraph 13).
"to the mind of this Court, the Hon‟ble Supreme Court had laid down a principle that when a civil Court is seized of the question relating to the validity of a document, it would not be appropriate to permit criminal investigation into the validity of the said document. In that view of the matter, the contention of the learned Senior Counsel that there is no ratio in this Judgment cannot be accepted."10
8. The view taken by the Hon‟ble Apex Court in the aforesaid decision is that criminal investigation into a matter which is in issue and especially when the question of validity of a document is an issue before the civil court, would not be permissible as it would prejudice the rights and interests of the persons propounding the said document. Admittedly, authenticity/genuineness of the disputed unregistered will dated 14.02.2033 is in question in the final decree proceedings in I.A.No.513 of 2019 in O.S.No.915 of 2005 on the file of the II Additional Junior Civil Judge, Chittoor and also in O.S.No.330 of 2018 on the file of the Additional Senior Civil Judge, Chittoor, and as of now, no finding has been recorded by the competent civil court as the authenticity/ genuineness of the disputed document viz. an unregistered will dated 14.02.2003. When the question of validity of a document is an issue before the civil court, it would not be permissible to proceed with the criminal trial as it would prejudice the rights and interests of the persons propounding the said 11 document. When such is the case, continuation of the impugned proceedings is nothing but abuse of process of Court.
9. The Criminal Petition is, accordingly, allowed. proceedings in C.C.No.416 of 2021 on the file of the IV Additional Judicial Magistrate of First Class, Chittoor are quashed, leaving it open to 2nd respondent to initiate criminal action in the event of civil court coming to conclusion that the disputed unregistered will is a forged document.
Miscellaneous petitions pending, if any, in the Criminal Petition shall stand closed.
___________________________________ JUSTICE K. SREENIVASA REDDY 12.04.2023 DRK 12 THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL PETITION NO.3013 OF 2022 12.4.2023 DRK