Allahabad High Court
Sharad Agrawal vs State Of U.P. And Another on 25 September, 2019
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 64
Case :- APPLICATION U/S 482 No. - 35595 of 2019
Applicant :- Sharad Agrawal
Opposite Party :- State Of U.P. and another
Counsel for Applicant :- Anil Kumar Pathak, Anuj Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Sri Aushim Luthra, Advocate has filed his vakalatnama on behalf of opposite party no.2, which is taken on record.
This application u/s 482 Cr.P.C. has been filed seeking the quashing of the cognizance order dated 16.1.2018 passed by the Metropolitan Magistrate-III, Kanpur Nagar in Case No. 1663 of 2018, State versus Sharad Agarwal and others and revisional order dated 24.12.2018 passed by the Sessions Judge, Kanpur Nagar in Criminal Revision No. 231 of 2018, Sharad Agarwal versus State of U.P. and others whereby the aforesaid criminal revision has been dismissed affirming the order dated 16.1.2018 of the Magistrate. The applicant has also sought for quashing of the N.B.W. order dated 31.8.2019 passed by the Special Judicial Magistrate, Kanpur Nagar as well as the entire proceedings of aforesaid Case No. 1663 of 2018, State versus Sharad Agarwal and others pending before the court below.
Heard Sri G.S. Chaturvedi, learned Senior counsel assisted by Sri Anuj Srivastava and Sri Anil Kumar Pathak, Advocates for the applicant, learned A.G.A. for the State and Sri Manish Tiwari, Advocate assisted by Sri Aushim Luthra, learned counsel for opposite party no.2. Perused the record.
Submission of learned counsel for the applicant is that probate proceedings are going on in the civil court where the same issues are to be adjudicated and, therefore, the criminal proceedings are not desirable to be adopted in the case. Further submission is that there is no such express evidence of denial of signature on the will and, therefore, the will cannot be said to be forged. It is also submitted that in the case of co-accused the Court has stayed the proceeding of the case, hence the present applicant may also be given the same relief. Certain other contentions have also been raised by the applicant's counsel but all of them relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
Learned counsel appearing for opposite party no. 2 while rebutting the submissions of learned counsel for the applicant has submitted that there is overwhelming evidence collected during the investigation affirming the presence of testator at the relevant point of time in the hospital at Medanta situated at Gurgaon, which is hundreds of miles away from the place of execution of the will, which is said to be executed at Kanpur and thus the claim of her presence at a different place at the time of execution of will is nothing but implied denial of the signature and even if it has not been done in so many words it does not signify anything else than denial of the genuineness of the signature. Further submission is that the contents of the will also reveal some expressions which conclusively prove the concocted nature of the document. Learned counsel has tried to submit that one of the witnesses of the said will contains the parentage written as 'late' Shiv Mangal Singh. while on the day of the will he was very much alive and died much later which also proves that on the alleged day there was no such will executed and the forgery is glaringly apparent on the face of record. Regarding the pendency of probate proceeding it has been submitted that if a particular document is forged it naturally can be cancelled or annulled only by the competent civil court and, therefore, the proceedings in the civil court have got to be resorted to for that purpose. So far as the law with regard to maintainability of criminal prosecution in regard to matters which also disclose civil liability is concerned, the same has been well settled by a catena of Apex Court's decisions. In many of the disputes the facts and circumstances are such that the matter gives rise to civil and the criminal liabilities both. The matters with regard to civil liability are decided on the basis of preponderance of probability while the matters relating to the criminal liability are to be decided on the basis of proof beyond reasonable doubt. Both of the proceedings can go on against an accused simultaneously and he can be held liable for both the liabilities. The criminal prosecution and the proceedings with regard to civil liability of the same accused are not mutually exclusive to each other. The criminal prosecution should not necessarily wait till the decision of the civil court.
It may be observed that the law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is also well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
A perusal of record of the present case shows that the F.I.R. in the present case was lodged by the opposite party no. 2 against the applicant and other co-accused persons. Allegation is that the wife of the opposite party no. 2 namely Asha Lata Sharma (since deceased) was owner of the house in dispute. She died on 23.5.2013 and thereafter being her husband as well as only legal heir, the opposite party no. 2 became owner of the said house. Allegation is that the applicant with the aid of other co-accused persons had manipulated a forged will deed of late Asha Lata Sharma and had claimed ownership over the said house. As per the F.I.R. the alleged Will Deed on the basis of which the applicant was claiming his rights, was executed on 02.5.2013 in Kanpur whereas in fact on that date Asha Lata Sharma was in Medanta Hospital, Gurgaon in connection with her treatment. Allegation in the F.I.R. is that on the date of execution of alleged Will Deed the wife of the opposite party no. 2 was not present in Kanpur but the applicant had forged her signature and got the aforesaid Will prepared in his favour. Several other illegalities and anomalous features have also been mentioned in the F.I.R. showing the alleged Will in favour of the applicant of being a forged document. During investigation the investigating officer had recorded the statement of the first informant who had fully supported the prosecution version. He had also given treatment papers as well as train ticket of Asha Lata Sharma to the Investigating Officer showing her presence at Medanta Hospital, Gurgaon on 2.5.2013. The said documents are the part of case diary and are annexed as annexure no. 8 to the present application. In the alleged Will Deed which was executed in favour of the applicant, witnesses of margin are mentioned as Ravindra Bhushan Singh son of late Shiv Mangal Singh and Brahma Dutt Mishra but on that date i.e. on 2.5.2013 father of Ravindra Bhushan Singh namely Dr. Shiv Mangal Singh was quite alive. It is also relevant to note that some of the witnesses and executor of the Will have given conflicting statement/affidavits in connection with the present case regarding their presence at the time of execution of alleged Will Deed. Therefore, it cannot be said at all that there is no evidence against the applicant. It is also well settled law that mere pendency of a civil litigation (i.e. a probate case as is in the present case) does not vitiate criminal proceedings and does not absolve the accused from his criminal liability and both proceedings can run concurrently.
The interference is ordinarily done by this Court only in those matters where it is found that the ingredients of the criminal offences are not made out from the allegations of the F.I.R. and it is found that deliberately a criminal complexion has been lent to a controversy which is essentially of civil nature. But the cases where rank forgery is reflected from the allegations and the ingredients of offences are apparently made out, the criminal prosecution is not shut down just because of the pendency of civil case. Punishment of imprisonments etc. has to be awarded to the guilty persons in the criminal forum while the civil damages or the annulment of forged documents has to be done in the civil forum. In cases of rank fraud and forgery both the forums have got to be necessarily approached to get complete relief and in order to bring the guilty accused to justice. In the present matter, it cannot be said that the allegations are deficient and they do not make out any criminal offence or that deliberately a criminal complexion has been lent to a dispute which is otherwise of pure civil nature.
The position of law on this point is clearly discernible from the following observation of the Hon. Supreme Court in the case of Tamil Nadu Mercantile Bank Ltd. vs. State through Deputy Superintendent of Police and Anr, 2014 (3) SCC 755 :
"10. It is also a law settled by this Court and reiterated in the case of Monica Kumar (Dr.) vs. State of U.P., 2008 (8) SCC 781 that criminal proceedings can continue even if the allegation discloses a civil dispute also. It is only when the dispute is purely civil in nature but still the party chooses to initiate criminal proceeding, the criminal proceeding may be quashed. For such purpose also the Court, save and accept in very exceptional circumstances would not look to any document relied upon by the defence."
There are many other similar authorities which may be cited in this regard but that does not appear to be needed.
In fact, we have for our guidance the decision given by the Constitution Bench of Hon'ble Supreme Court in the case of M.S. Shariff versus The State of Madras and others, A.I.R. 1954 S.C.397 whereby the Apex Court went to the extent of giving preference to the criminal prosecution in comparison to the civil proceeding. Sometimes, arguments are raised at the Bar that simultaneous proceedings in two forums, one civil and another criminal, are likely to result in incongruous findings and that possibility cannot be ruled out when different Courts at different point of time return their findings on identical or similar issues. With regard to such kind of contention, the Constitution Bench of the Apex Court did not attribute any great significance to such hypothetical eventuality and did not reckon the same a very relevant consideration. It was kept in perspective by the Hon'ble Supreme Court that the decision of one Court has not been declared by the legislature to be binding on the other Court always and has not been recognized as relevant except under certain circumstances and for certain limited purposes only. The only relevant consideration to avoid such kind of incongruity was to avoid the eventuality of embarrassment. Observations were also made by the Constitution Bench which underlined the desirability of earlier conclusion of criminal prosecution so that the evidence may be adduced in the Court by the witnesses before their memories fade to become untrustworthy. Even the social need to see that the guilty be punished at the earliest with regard to the crime committed by them was also taken note of by the Court. In view of the Apex Court, no straight jacket cut and dried formula can be laid down in this regard and it all depends from case to case and the nature of the two proceedings that are pending at two forums in the light of which the Courts are required to form their opinion whether twin proceedings ought to be allowed to go on simultaneously or not and whether one ought to be preferred to the other or whether one of them deserves to be stayed till the other is decided. It may be apt to quote herein-below the observations made by the Constitution Bench of the Hon'ble Supreme Court given in Shariff's case (supra) which read as thus:-
"As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule ban. be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things glide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so hear its end as to make it inexpedient to stay it in order to give precedence to a prosecution order of under section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
It may also be useful to extract the relevant observations made by the coordinate Bench of this Court in the case of Pooran Singh and others versus State of U.P. and another, Case:-Application U/S 482 No. 12993 of 2004 whereby the issues about the maintainability of parallel proceedings, their feasibility and permissibility were gone into by His Lordship. The relevant pronouncements of the Apex Court were relied upon and detailed references to them were also made and it was concluded that the proceeding in a civil case and the proceeding of the criminal case can well go on together. The relevant portions of the aforesaid judgments may be reproduced herein-below.
"9. The issue is whether the impugned complaint or proceedings are maintainable, since the matter is engaging the attention of the Civil Court in a duly constituted suit. It is no longer res integra that on the basis of same facts, if a civil wrong and an offence are both disclosed, the civil and criminal courts are independent of the other to determine each, in their respective jurisdiction, untrammelled by the findings of the other. It is not that the findings of the civil court on the same fact in issue in a suit before it would work as res judicata, or as an issue estoppel to bar the criminal courts' jurisdiction, or to shut the mouth of parties in proceedings before the criminal court. The two courts in the two jurisdiction, civil and criminal, can reach contrary findings. Also, the judgement of the civil court, as such, is not relevant in criminal proceedings, except to the extent that it is provided to the contrary, by sections 40 to 44 of the Indian Evidence Act. That is not admittedly the case here. It would have been different if the act alleged a criminal offence, in proceedings before the Magistrate what was essentially a civil dispute, and not one that was both a civil wrong and a criminal offence. In the former case, proceedings before the criminal court can well be quashed; but, not in the latter.
10. In a case where an act is both a criminal offence and a civil wrong, the law appears to be consistent that both the civil court and the criminal court would have jurisdiction independent of the other. As already said, both Courts can reach contrary conclusions. In certain cases, depending upon the facts, proceedings before the Civil Court or the Criminal Court may be stayed pending outcome of the case before the other. But on those considerations proceedings before the Criminal Court or before the Civil Court, cannot be quashed or scuttled. In matters where one of the proceedings are stayed, depending on facts obtaining in a particular case, it is to avoid the likelihood of embarrassment. An early Constitution Bench decision of the Supreme Court on the point is M.S. Sheriff and another v. State of Madras and others1 where their Lordships held thus:-
(quoted paragraph of their Lordships in M.S. Sheriff (supra) already extracted above is being omitted to avoid repetition).
11.The decision aforesaid of their Lordships' was reiterated in the Constitution Bench decision in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another2, where the earlier decision in M.S. Sheriff (Supra) was endorsed :-
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 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. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras give a complete answer to the problem posed:(AIR p.399, paras 15-16) (quoted paragraph of their Lordship's decision in M.S. Seriff (Supra) already extracted above is omitted)
12. Reiterating the principle in unambiguous words, the Supreme Court in P. Swaroopa Rani vs. M. Hari Narayana alias Hari Babu held:-
11. 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 facts and circumstances of each case.
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18. It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case is permissible.(emphasis by Court).
13. What is clearly deducible from the above authorities is that it is not the law that proceedings before the Criminal Court are to be quashed because the same fact in issue, that is subject matter of criminal proceedings between parties, is also the subject matter of a pending civil suit. In certain situations, however, proceedings of the Criminal Court, or may be, the Civil Court can be stayed pending decision of the other in order to avoid embarrassment to the parties. However, in those cases where stay of one or the other proceedings is granted pending decision in the other, the stayed proceedings would revive to be carried to their logical conclusion, irrespective of the outcome in the other jurisdiction. This is so because the Criminal and the Civil Court are completely independent of the other, and, on the same fact in issue between parties, they may arrive at contrary conclusions. The judgment of one in no way binds the other. Thus, the prayer to quash criminal proceedings on this ground cannot be granted."
In the light of what has been discussed above, the submission of learned counsel for the applicant that the criminal proceedings should be quashed in the wake of pendency of probate proceeding appears to be untenable. This Court also does not see any good reason to stay these proceedings as the commission of criminal offences is unmistakably apparent on the face of record.
Even the other submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
So far as the order passed with regard to co-accused Sitanshu Dutta is concerned, his case was on an entirely different footing. No role had been assigned to co-accused with regard to fabrication of the alleged Will deed and there was hardly anything to indicate that the co-accused staked any right or claim over the property on the basis of the allegedly forged Will deed. Even other grounds which persuaded the Court to lean favourably with regard to co-accused are not at all common and there is hardly anything observed in the aforesaid order passed with regard to him which can be made use of for the purpose of giving any advantage to the present applicant who appears to be one of the principal offenders in the case.
The order passed by revisional court also does not suffer from any such infirmity or illegality which may call for any interference by this court as the same is well substantiated with relevant law.
The prayer for quashing the same is refused as I do not see any illegality, impropriety and incorrectness in the impugned orders or the proceedings under challenge. There is no abuse of court's process either.
The application is accordingly, dismissed.
Order Date :- 25.9.2019 CPP/-Naresh