Delhi District Court
Kirpal Chand Arora vs Satish Chand Arora on 3 November, 2016
CR No. 58444 of 2016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CR No. 58444/2016
Kirpal Chand Arora
S/o Sh. Ram Lal
R/o 176-D, Pushp Vihar,
Madangir, New Delhi .........Petitioner
Versus
1. Satish Chand Arora
S/o Late Bhagwan Dass
R/o G-4/B, Kalkaji, New Delhi ......Respondent No.1
2. Subhash Chander
S/o Late Bhagwan Dass
R/o G-4/B, Kalkaji, New Delhi .......Respondent No.2.
Instituted on : 24th September 2016
Argued on : 3rd November 2016
Decided on : 3rd November 2016
JUDGMENT
1. This revision petition u/s 397 Cr.P.C is preferred by petitioner against order on charge dated 22nd August 2016 passed by the court of Sh.Babru Bhan, Learned Metropolitan Magistrate-07, Central District, Tis Hazari Courts, Delhi in a complaint case (CC No. 531313/2016) filed by petitioner, wherein accused (R-1 & R-2 herein) have been discharged.
2. This court has heard submissions advanced by Sh. Sandeep Srivastava, counsel appearing for the petitioner, Sh.D.P. Sehrawat, Counsel appearing for R-1 and Sh. Rakesh Srivastava counsel appearing for R-2.
3. Briefly stated, relevant facts leading to filing of this revision petition are that Satish Chand Arora (R-1) and Subhash Chand Arora (R-2) are maternal brother of Kirpal Chand Arora (petitioner). Late Sh. Bihari Lal Kirpal Chand Arora vs Satish Chand Arora Page 1 out of 15 Pages CR No. 58444 of 2016 Grover was maternal uncle of petitioner as well as R-1 & R-2, who expired issueless on 1st March 1990. Satish Chand Arora (R-1) filed a probate case (No. 165/2006) on the basis of a Will dated 14 th January 1990 allegedly executed by Late Sh. Bihari Lal Grover in his favour. Similarly, Subhash Chand Arora (R-2) also filed another probate case (No. 166/2006) on the basis of other Will dated 22 nd February 1990 allegedly executed by Late Sh. Bihari Lal Grover in his favour.
4. Probate cases filed by R-1 & R-2 were jointly decided by the court of Ms. Bimla Makin, Ld ADJ, Tis Hazari Courts, Delhi, whereby both the probate cases were dismissed. In the Judgment dated 14 th December 2006, Probate Court held that neither the Will dated 14 th January 1990 nor the Will dated 22nd February 1990 were validly executed by the Testator during his life time in sound disposing mind and that none of the Will propounded by the petitioners (R-1 & R-2 herein) was a genuine Will of the Testator. It was also observed in the Judgment that contents of both the Wills show that both the Wills were manufactured by the petitioners i.e. (R-1 & R-2 herein) after the death of Testator as per their own convenience.
5. Case of the petitioner Kirpal Chand Arora is that Late Sh. Bihari Lal had never executed any Will in favour of R-1 & R-2 and both the respondents claimed probate on the basis of forged and fabricated Wills manufactured by them. Late Bihari Lal died intestate leaving no issues and his wife had pre-deceased him and, therefore, Class-I heirs under the Hindu Succession Act left behind by him were his three sisters namely Smt.Sheela Devi, Smt.Shanti Devi and Smt.Vidyawanti (since deceased). Both Satish Chand Arora (R-1) and Subhash Chand Arora (R-1) are the sons Kirpal Chand Arora vs Satish Chand Arora Page 2 out of 15 Pages CR No. 58444 of 2016 of Smt.Shanti Devi and Kirpal Chand Arora (petitioner) is son of Smt.Vidyawanti. Case of the petitioner is that the finding of the Probate Court clearly indicates that respondents had forged and manufactured the Wills dated 14th January 1990 and 22nd February 1990 in order to gain wrongfully and deprive the petitioner and other legal heirs of Late Bihari Lal Grover of the legitimate shares and dues in the property left behind by him and respondents had malafide intention to cause wrongful loss to the petitioner and wrongful gain to themselves by misleading the court.
6. On 4th March 2008, complaint case was filed by the petitioner K.C. Arora against the State and respondents for registration of FIR u/s 192/467/468/470/471/472/420/120B/34 IPC. Learned trial court dismissed application u/s 156 (3) CrPC but granted opportunity to adduce pre- summonning evidence, whereupon he examined herself as CW-1, Satpal as CW-2 and Gulshan Kumar as CW-3 and vide order dated 17.01.2012 summoned Satish Chand Arora (R-1) and Subhash Chand Arora (R-2) observing that complaint has prima facie established that accused persons committed offences punishable u/s 467/468/471 IPC and ground exist to proceed against both the accused persons.
7. Sh. Sandeep Srivastava, Ld counsel appearing for the petitioner submitted that the Impugned order is passed on surmises and conjectures, without application of mind and that a prima facie case is made on merits and it is a fit for setting aside Impugned Order dated 22.08.2016 to prevent abuse of the process of the court and to secure the ends of justice. Learned counsel submitted that Petitioner and two other witnesses, were examined on oath at the pre-summoning evidence stage and learned trial Kirpal Chand Arora vs Satish Chand Arora Page 3 out of 15 Pages CR No. 58444 of 2016 court on consideration of deposition of witnesses, as well as the judgment dated 14.12.2006 concluded that a prima facie case was made for offences punishable U/s 467/468/471 IPC and grounds existed to proceed against both the accused both the accused R-1 & R-2 appeared before learned trial court on 22.03.2012 and thereafter, Petitioner CW-1 and two other witnesses were examined as well as cross-examined at the pre- charge stage, wherein, it came to light that Wills dated 14.01.1990 and 22.02.1990 were not genuine and were documents manufactured by the Respondents/Accused. Learned counsel for petitioner submitted that Ld. M.M. without appreciating evidence available on record and legal principles, discharged the accused person. It is submitted that Ld. Trial Court wrongly observed that Civil Court held that the accused failed to prove that their respective wills were genuinely executed by the testators, which is factually wrong and bare perusal of the judgment dated 14.12.2006 shows that the Ld. ADJ at page 47 specifically held that "I hold that none of the will propounded by the Petitioners is a genuine will of the testator." There was a specific finding by the Probate Court that both the Wills were not genuine.
8. Learned counsel urged that Trial Court based the decision stating that failure to prove genuineness of Will does not lead to any presumption that the Will is forged and fabricated and observation of the Ld. Trial Court is factually wrong, since Learned Probate Court had also held that "The contents of both the Wills show that both the Wills were manufactured by the Petitioners after the death of the testator as per their own convenience." It is submitted that both Civil and Criminal proceedings are Kirpal Chand Arora vs Satish Chand Arora Page 4 out of 15 Pages CR No. 58444 of 2016 governed by Indian Evidence Act and Civil court held a full trial wherein evidence was adduced and witnesses were examined and cross-examined. It is argued that, this conclusion is incorrect as Civil Court did not held that the accused failed to prove Wills, but in no uncertain words held that none of the will propounded by the Petitioners was genuine will of the testator and it is not a case of failure to prove a Will, but it is a case of a finding by a Court that the Will was not genuine, which attracted an enquiry U/s 340 Cr.P.C.
9. Learned counsel argued that finding of the Ld. Trial Court that neither any evidence was produced before the Civil Court in probate petition nor any such evidence had been produced before that Court which can prima facie show that the disputed Wills were forged documents is factually wrong as Judgment of the Civil Court is a piece of evidence and such document, being a judgment of a Court need not be proved and makes a prima facie case of forgery in no ambiguous terms, which fact is clear from summoning Order dated 17.01.2012 of the Trial Court.
10. Sh. Sandeep Srivastava, learned counsel argued that finding of the Ld. Trial Court that mere statements of the witnesses that they were not told by the testator about any such Will is not sufficient to frame charges is against the facts as well as settled principles of law and finding of fact by the Civil Court on the genuineness of Will, is not a mere statement but a concrete piece of evidence which itself satisfies the requirement of prima facie case against the accused and Ld. Trial Court erroneously held that no statutory provision prevents a testator to execute more than one Will as the last Will has to be enforced, which is in contradiction to the case of the Kirpal Chand Arora vs Satish Chand Arora Page 5 out of 15 Pages CR No. 58444 of 2016 accused before the Civil Court wherein both accused claimed that their respective Will was "the first and last Will" and it is so mentioned in both the Wills.
11. It is urged that Ld. Trial court erroneously held that there was nothing on record show that the accused committed forgery or knowingly used or produced forged documents which is contrary to the definition of forgery provided in Section 463 of I.P.C., It is submitted that as per Section 244 of Cr.P.C., learned Trial Court had to consider all the evidence at the stage of framing of charge, and complainant need only establish a prima facie case and need not establish that accused committed the offence, as held by the Hon'ble Kerala High Court in Mani vs. Joseph & Ors.1 He argued that Hon'ble Apex Court in State of Madhya Pradesh vs. Sheetla Sahai & Ors.2 held that if upon perusal of entire materials on record, court arrives at an opinion that two views are possible, charges can be framed, but if only one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial. He pointed out that in "V.M. Shah v. State of Maharashtra and Anr3" it was held that finding recorded by the Civil Court shall prevail until reversed by the Appellate Court and that Punjab & Haryana High Court in "Amar Nath & Anr. Vs. Atma Ram 4" held that finding of fact by the Civil Court in respect of the validity of the Will is binding on the Criminal Court. Further, Hon'ble Apex Court in "P. Swaroopa Rani v. M. Hari Narayana @Hari Babu 5" held that finding of a Civil Court that a document produced in the Court was forged one, independent 1 1999(3) ILR (Kerala) 530.
2 [2009(8) SCC 617] 3 [1995(5) SCC 767] 4 [2007(2) RCR (Crl.) 942] 5 [2008(5) SCC 765] Kirpal Chand Arora vs Satish Chand Arora Page 6 out of 15 Pages CR No. 58444 of 2016 criminal proceedings on basis of said observations can be filed.It is argued that Ld. Trial Court wrongly opined that material produced by the prosecution should be of such evidentiary value that if it goes unrebutted would be sufficient to warrant the conviction and this observation is in stark contradiction to the decision of the Hon'ble Supreme Court in "Sonu Gupta vs. Deepak Gupta & Ors.6", where in it was held that even at the stage of framing of charge, sufficiency of materials for the purpose of conviction is not the requirement.
12. Sh.D.P. Sehrawat, Ld counsel appearing for the respondent no.1 submitted that there was no defect in the impugned order whereby both the respondents were discharged and that finding and observations of the probate court were not binding on the trial court and learned Civil Court could not give any finding as regards forgery of the Wills. Learned counsel relied upon a judgment of Honble Bombay High Court reported as "State of Maharashtra Vs. Yashwantrao Dataraya7 and drew attention of the Court towards para 4 thereof, which reads as under:
"Mr. B.D. Kamble, the learned public prosecutor, however, contended that apart from the evidence of the complainant, there was the finding of the civil Court in the probate proceedings filed by the complainant's daughter and by respondent No. 2 who is the rival claimant under the rival will and the judgment in that proceedings, which was declared in favour of the daughter of the complainant, was binding on respondent No. 2. In other words, he tried to argue that the finding in the probate proceedings that the will which was produced by respondent No. 2 was found to be forged, was binding on the learned Sessions Judge. This argument must be 6 [2015(3) SCC 424] 7 (1978) 80 BOMLR 91 Kirpal Chand Arora vs Satish Chand Arora Page 7 out of 15 Pages CR No. 58444 of 2016 rejected, because under Section 41 of the Evidence Act, the judgment of the Probate Court is conclusive proof only with respect to the various legal characters or declarations made in those proceedings in so far as they are within the scope of the proceedings. The civil Court had no jurisdiction to decide that the document is forged within the meaning of the penal section under the Penal Code. Hence, the declaration that the will was forged, cannot be binding on the Sessions Court."
13. Sh. Rakesh Srivastava, learned counsel for respondent No.2 submitted that criminal proceedings could not continue as the appeal had been filed on behalf of respondent against order of Probate Court learned counsel in support of his submission referred "Sarwan Kumar Malhotra Vs. A.K. Malhotra,8 of our High Court, wherein Sardool Singh's case was followed and it was observed that "Supreme Court was considering a similar issue where a will was the subject matter of a civil litigation and criminal proceedings were initiated alleging the will to be a forged document. It was opined by the Supreme court that since parties were litigating on the issue at a civil forum, criminal proceedings could not continue. However, it was observed that if civil suit results in a finding that the will was a fabricated and a forged document, at the point of time appropriate criminal proceedings could be initiated".
14. Now, relevant portion of order on charge dated 22.08.2016, whereby learned trial court discharged the accused may be noted, which reads as under:
"For framing the charges, the material produced by the prosecution should be of such evidentiary value that if it goes un-rebutted would be sufficient to warrant the conviction. In the dispute in hand, the entire case of prosecution is based upon the judgment 8 2007 LawSuit (Del) 1204 Kirpal Chand Arora vs Satish Chand Arora Page 8 out of 15 Pages CR No. 58444 of 2016 passed by the Ld ADJ on 14.12.2006 Ex. CW2/3. In the said judgment, the Court has held that the accused Subhash Chander and Satish Chander failed to prove that their respective WILLs were genuinely executed by the testator. Merely because the accused failed to prove the genuineness of the WILL does not leads to any presumption that the WILL is forged and fabricated. Proving the execution of a WILL in a civil case and proving the forgery in a criminal case are altogether different. Merely because a party has failed to prove the execution in civil case does not mean that he is criminally liable for forgery. Neither any evidence was produced before the Civil Court in probate petition nor any such evidence has been produced before this Court which can prima facie show that the disputed WILLs are forged documents. Mere statements of the witnesses that they were not told by the testator Bihari Lal about any such WILL is not sufficient to frame charges U/s 467/468/471 IPC against the accused persons because there is no statutory rule that testator of a WILL is required to inform about the same to all his relatives.
Ld counsel for the complainant has further argued that the existence of two WILLs itself indicates that one of the WILL is forged. There is no statutory provision preventing a testator to execute more than one WILL, although it is the last one which has to be enforced. The argument is not holding any water. Hence, same is rejected.
There is nothing on record which shows that the accused persons has committed forgery or knowingly used or produced forged documents. They are discharged accordingly.
15. Legal position is well settled that at the stage of charge, Court has not to undertake an elaborate enquiry and has only to sift and weigh material on record. It is not necessary to delve deep into minute aspects. The standard of test and proof required for finding guilt is not necessary to be applied at the stage of framing of charge. Even the strong suspicion, Kirpal Chand Arora vs Satish Chand Arora Page 9 out of 15 Pages CR No. 58444 of 2016 found upon material before the Magistrate, which leads her to from a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of the offence. It is well settled that at the stage of framing of charge probative value of the material on record can not be gone into and the material brought on record by the prosecution has to be accepted.
16. Alleged facts may form the basis of civil claim and may also constitute the ingredients of crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to file a civil suit, at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of cheating. To deceive is to be induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. Prima-facie it is to be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence and that accused made willful misrepresentation.
17. Basic elements of forgery are:
(i) making of a false document or part of it and
(ii) making with intention
(a) to cause damage or injury to
(i) the public, or
(ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property; or
(d) to cause any person to enter into an express or implied contract;
Kirpal Chand Arora vs Satish Chand Arora Page 10 out of 15 Pages CR No. 58444 of 2016 or
(e) to commit fraud or that fraud may be committed.
18. In Prafulla Kumar Samal and another9 Hon'ble Supreme Court observed that, the Judge, while considering the question of framing the charge, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out, where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. Test to determine a prima facie case would naturally depend upon the facts of each case.
19. In the instant case, indisputably, there are two Wills allegedly executed by late Sh. Bihari Lal. First Will dated 14.01.1990 in favour of Satish Chand and second Will dated 22.02.1990 in favour of Subhash Chand. The striking feature of both Wills is that in both the Wills, it is mentioned "first and last will". On the Will dated 14.01.1990, alleged signatures of Late Sh. Bihari Lal are in English and On the Will dated 22.02.1990, alleged signatures of Late Sh. Bihari Lal are in Urdu. There is no doubt that testator can execute many wills, and latest will prevails, but both the wills cannot be 'first Will' as well. During pre-summoning and pre- charge evidence, petitioner K.C.Arora examined himself as CW-1, Satpal as CW-2 as legal heir of Smt. Vidyawanti and Gulshan Kumar (CW-3) son of Smt. Sheela Rani and legal heir of late Bihari Lal. It is pertinent to note that witnesses stated that they were legal heirs of Late Sh. Bihari Lal and 9(1979) 3 SCC 4 Kirpal Chand Arora vs Satish Chand Arora Page 11 out of 15 Pages CR No. 58444 of 2016 Late Sh.Bihari Lal has not executed any Will in favour of any person during their life time and R1 & R2 forged and fabricated two Wills dated 14.01.1990 and 22.02.1990 based upon which both of them filed two separate probate cases which were dismissed by the Court of Learned ASJ. Witnesses further testified that Bihari Lal never operated any bank locker either in his individual name or jointly with accused persons more particularly at Punjab National Bank, Kalkaji. Locker No. 114 was opened on 9.11.1990, and thus, there was no question of mentioning of said locker in the Will dated 14.01.1990 by Satish Arora. Witnesses were cross-examined by learned counsel appearing for the accused (respondent herein) and fact regarding locker finds mentioned in the judgment of the Probate Court stating that as per document Ex.RW-5/1, locker No.114 Punjab National Bank was allotted to Satish Kumar Arora and Chander Kanta on 9 th November 1990, whereas testator expired on 01.03.1990 and that there is no evidence to show that the locker ever existed in the name of testator Late Sh. Bihari Lal and his wife or that during his life time, testator had any joint operation of the said locker. On asking, even during arguments Satish Arora failed to point out or show any document in this regard and the interesting question is, how in that case, the said locker No.114, PNB Kalkaji finds mentioned in the alleged Will dated 14.01.1990 in his favour.
20. Trial court overlooked the fact that there was not only finding by the Civil Court that Wills were manufactured by the petitioners (R-1 & R-2 herein) after the death of the testator as per their own convenience but also deposition of witnesses before it and therefore, a prima facie case of forgery was made out against accused persons and whether case was Kirpal Chand Arora vs Satish Chand Arora Page 12 out of 15 Pages CR No. 58444 of 2016 proved beyond reasonable doubt or not was not to be seen at the stage of framing charges and probative value of material on record could not be gone into. This court is in agreement with the submission of learned counsel for the petitioner that learned Trial Court fell into error while observing that no evidence had been produced before this Court which can prima facie show that the disputed wills were forged documents.
21. In Sarwan Kumar Malhotra's Case (Supra) relied upon by R-2 himself, wherein Sardool Singh's case was quoted. It was observed that 'if Civil suit results in a finding that the Will was a fabricated and a forged document, at that point of time appropriate criminal proceeding could be initiated"
and in the State of Maharashtra Vs. Yashwantrao Duttatraya's (Supra), referred by the counsel for R-1, it was held that the Civil Court had no jurisdiction to decide that the document is forged within the meaning of Penal Section under IPC and hence, declaration that the Will was forged cannot be binding on the Session's Court. In Bombay case, Learned Session Judge had passed an order of Acquittal against respondent in a complaint case instituted upon a private complaint and the complainant had relied upon his own evidence and certified copy of the judgment in probate proceedings. In that context, it was held that the finding of the Civil Court that the Will was 'forged' cannot bind the Session Judge, who had to try a criminal case between the State and the respondent. It was observed that the said evidence would be inadmissible because it was not between the same parties and the parties being queen-empress on the one hand and the prisoner on the other and whereas, in the Civil Suit parties were prisoner and the three defendants. Secondly, the issues in the Civil Kirpal Chand Arora vs Satish Chand Arora Page 13 out of 15 Pages CR No. 58444 of 2016 and Criminal Suit were not identical and the burden of proof vested in each case on different shoulders. Yashwantrao's judgment is not applicable to the case in hand as the factual scenario in the present case is different as firstly, it is the stage of charge, secondly there is not one Will but two Wills in question, both of which claim to be the 'first Will' and facts as regards, locker mentioned therein are apparently incorrect and signatures in both the Wills are in different languages and lastly, even if, the finding of the Civil/Probate Court is not binding, it is nevertheless relevant, in view of Section 41 Indian Evidence Act about the existence of any legal character or title of the such person to any thing regarding which a judgment/decree has been passed in exercise of probate jurisdiction. In order to form a prima-facie view at the stage of charge, while sifting material on record and deposition of witnesses, the observations made in the judgment of the Probate Court, cannot be totally overlooked.
22. As regards Section 467 & 468 IPC and prima facie allegedly forgery of Wills, it shall be suffice to note here that indisputably, both the accused (R-1 & R-2 herein) had applied probates of the respective Wills claiming those to be the genuine but were held by the Civil Court as not genuine and secondly respondents only were the beneficiary of the Wills which were prima facie prepared/manufactured causing the court to believe that those were genuine Wills seeking transfer of valuable security and money mentioned therein and thereby deceiving and causing wrongful gain to themselves and wrongful loss to petitioner & other legal heirs of Late Sh.Bihari Lal.
Kirpal Chand Arora vs Satish Chand Arora Page 14 out of 15 Pages CR No. 58444 of 2016
23. To conclude, this court is of the considered opinion that prima facie respondents prepared Wills which were apparently forged and were not genuine document with intent to cause damage and wronglul loss to remaining legal heirs and to support their claims with intention of causing it to be believed that Wills in question were prepared by or under authority of Late Sh.Biharilal who they knew that it was not made by him, therefore, shall be prima facie chargeable for forgery, using forged document for cheating and using as genuine, the forged document. In view of aforesaid reasons, impugned order is set aside and recalled and it is ordered that a charge u/s 467, 468 & 471 IPC is liable to frame against accused Satish Chand Arora & Subhash Chander. Parties shall appear before the learned trial court on 18.11.2016 for framing of charge. TCR be sent back along with a copy of this order. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
on 3 November 2016
rd
Special Judge-CBI (PC Act)-06
THC/Delhi.
Kirpal Chand Arora vs Satish Chand Arora Page 15 out of 15 Pages