Rajasthan High Court - Jaipur
Jitendra Singh Son Of Pratap Singh vs State Of Rajasthan on 20 March, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:12597]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 5094/2023
1. Jitendra Singh S/o Pratap Singh, Aged about 50 Years,
R/o Phool Bagh Palace, Alwar, Rajasthan.
2. Vijendra Singh S/o Harmohendra Singh, Aged about 70
Years, R/o 28, Sundar Nagar, Police Station Nizamuddin,
New Delhi.
----Petitioners
Versus
1. State of Rajasthan, through Public Prosecutor.
2. Sunil Chandna S/o Avinash Chandna, R/o Safdarganj Enclave, New Delhi.
3. Sameer Chandna S/o Avinash Chandna, R/o Safdarganj Enclave, New Delhi.
----Respondents
For Petitioner(s) : Mr. Pankaj gupta with
Mr. Naman Yadav
Mr. Saurabh Yadav
For Respondent(s) : Mr. Sanjeev Mahala, PP
Mr. Ashvin Garg
Mr. Akshat Verma for
Mr. Sandeep Pathak
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
JUDGME NT
DATE OF PRONOUNCEMENT :- 20/03/2024
1. By way of this misc. petition under Section 482 Cr.P.C., the petitioners have assailed the order dated 25.05.2023 passed by learned Addl. Sessions Judge, Bundi in Criminal Revision No.119/2021 whereby the learned revisional court partly allowed the revision to the extent of summoning of the accused petitioners by bailable warrants instead of non-bailable warrants and affirmed (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (2 of 21) [CRLMP-5094/2023] the order dated 18.11.2021 passed by learned Chief Judicial Magistrate, Bundi in Case No.2035/2021, taking cognizance against the petitioners for offences under Sections 420, 467, 468, 471 and 120B IPC.
2. Brief facts of the case are that on 25.09.2017, the complainant Avinash Chandra Chandna, sent a complaint by post to the SHO PS Kotwali, Bundi alleging inter alia that out of the wedlock of Maharaja Bahadur Singhji and Smt. Gulab Kumari, one son Yuvraj Ranjeet Singh and one daughter Mahendra Kumari were born. Bahadur Singhji expired on 24.11.1977 and Ranjeet Singh inherited the legacy. Smt. Gulab Kumariji also passed away on 29.06.1981. It was mentioned in the complaint that out of the wedlock of Ranjeet Singh and his spouse Smt. Durga Kumari, no child was born. Mahendra Kumari Ji was married to Yuvraj Pratap Singhji, Alwar in the year 1962 and they gave birth to Bhanwar Jitendra Singh and Minakshi Kumari. Smt. Mahendra Kumari filed a suit of partition under Order 7 Rule 1 CPC in Bundi District Court and during pendency thereof, she expired and Jitendra Singh, being her legal heir led her case. In the said suit (No.241/03), ex-parte preliminary decree was passed and 50% of the subject property was declared in favour of Jitendra Singh & 50% was declared in favour of Ranjeet Singhji. It was averred in the report that since the subject property was in actual possession of Shri Ranjeet Singh, the learned civil court, by way of permanent injunction, restrained Shri Ranjeet Singhji to sell, transfer or alienate the suit property till passing of final decree. (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (3 of 21) [CRLMP-5094/2023]
3. The complainant/first informant alleged that he being the close and family friend of Ranjeet Singh Ji, in pursuance of the order dated 31.11.2005 passed in Case No.241/2003 by ADJ, Fast Track No.4, Jaipur, Ranjeet Singhji executed a Will in his favour on 30.03.2009 which was also got registered before Sub-Registrar No.VII, New Delhi. Shri Ranjeet Singh expired on 07.01.2010. It was alleged in the report that Jitendra Singh wanted to illegally usurp the entire property of Bundi estate and with this view, he hatched a conspiracy and by making false and forged signature of Shri Ranjeet Singh, made a forged trust deed (Sewayatnama/Arpan-nama) dated 08.05.2008 to the effect that Shri Ranjeet Singh has given all his property in the name of his Kuldevi Ashapura Mataji while making Jitendra Singh and Shrinath Ji as trustees. It was alleged that on the basis of this forged and fabricated document, Shrinath Singh also filed a suit (No.88/2010) under Order 7 Rule 1 CPC for declaring him trustee. It is averred in the complaint that in Testamentary Case (No.19/2010), instituted by him before Delhi High Court, in connection with the Will executed by Ranjeet Singhji in his favour, Shrinath Singh Hada filed an application under Order 1 Rule 10 CPC for impleading him in the capacity of trustee of Ashapura Mataji, as party respondent. However, he withdrew the said application without disclosing any specific reason. It was thus alleged in the report that Jitendera Singh, Shrinath Singh and Bijendra Singh wanted to illegally grab and usurp the property of Shri Ranjeet Singh Ji, which was transferred in his favour by Shri Ranjeet Singh by executing a Will. Shri Ranjeet Singh has never given his property in the name of Ashapura Mataji and declared accused (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (4 of 21) [CRLMP-5094/2023] persons as trustee of the subject property. He thus, prayed that the veracity and genuineness of the alleged Arpannama dated 08.05.2008 be made and appropriate legal action may be taken against the accused persons.
4. On the basis of the said report, FIR No.601/2017 was registered at Police Station Kotwali, Bundi for offences under Sections 420, 406, 467, 468, 471, 120B IPC and investigation was commenced. After concluding investigation, the police filed negative final report (No.90/2018) opining it to be a civil nature. Thereafter, the complainant filed a protest petition before the learned trial court. The learned trial court vide order dated 18.11.2021, while denying the negative final report of the investigating agency; took cognizance for the offences under Sections 420, 467, 468, 471 and 120B IPC against the accused Jitendra Singh, Shrinath Singh Hada and Bijendra Singh and issued arrest warrants against them. The last para of the order impugned dated 18.11.2021 is reproduced hereinbelow for the sake of ready-reference:-
" ......vr% izdj.k dh lexz ifjfLFkfr;ksa esa i=koyh ij miyC/k leLr lk{; ds lexz ewY;kadu ds vk/kkj ij Hkaoj ftrsUnz flag iq= izrki flag] tkfr jktiwr] fuoklh Qwy ckx iSysl] vyoj] JhukFk flag gkM+k iq= Lo- t;ukFk flag jktiwr] fuoklh cgknqj flag lfdZy] cwUnh ,oa fctsUnz flag ds fo:) izFke n`"V;k /kkjk& 420] 467] 468] 471 o 120ch Hkkjrh; n.M lafgrk esa izlaKku fy;s tkus ds i;kZIr vk/kkj fo|eku gksus ls mDr rhuksa vfHk;qDrx.k ds fo:) /kkjk& 420] 467] 468] 471 o 120ch Hkkjrh; n.M lafgrk ds v/khu n.Muh; vijk/kksa ds vkjksiksa esa izlaKku fy;k tkrk gSA izdj.k fu;fer QkStnkjh esa ntZ gksA vfHk;kstu vf/kdkjh dks bl izdj.k dh (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (5 of 21) [CRLMP-5094/2023] iSjoh gsrq funsZf'kr fd;k tkrk gSA vfHk;kstu vf/kdkjh fu;ekuqlkj lwph xokgku is'k djsA "
5. Being aggrieved and dissatisfied with the order taking cognizance dated 18.11.2021, the accused petitioners preferred a revision (No.119/2021) before learned Sessions Judge, Bundi. The learned revisional court, vide order dated 25.05.2023, dismissed the revision and upheld the order taking cognizance dated 18.11.2021.However, the learned revisional court modified the order dated 18.11.2021 and changed the summoning of the accused petitioners into bailable warrants. Hence, this misc. petition.
6. Learned counsel for the petitioners vehemently and fervently contends that order taking cognizance dated 18.11.2021 which was further affirmed by the learned revisional court vide order dated 25.05.2023 is not sustainable in the eyes of law as the learned magistrate failed to conduct inquiry under Section 202 Cr.P.C. as the petitioners are admittedly residing beyond the territorial jurisdiction of the court concerned. He contends that provisions of Section 202 Cr.P.C. are ignored and are not complied with properly by the trial court while issuing the process. It is submitted that before summoning an accused, who are admittedly, residing beyond the jurisdiction of the trial magistrate, the trial magistrate was under obligation to make necessary inquiries into the case either himself or direct investigation to be made by a police officer.
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7. He further submits that as a matter of fact, there is a civil dispute between the parties regarding the subject property and for which, civil suit is also going on before the competent civil court and thus, continuation of criminal proceedings arising out of impugned FIR is nothing but a sheer abuse of process of law. It is also contended that the original complainant who lodged the FIR has also been expired and without there being any leave of the court concerned, the present complainant (legal heirs of the complainant) has been given opportunity to proceed with the judicial proceedings against negative final report.
8. It is also contended that there is a great delay of nearly seven years in lodging of the FIR as the document in question (Arpan-nama) was in knowledge and notice of the complainant since 2011 but he lodged the impugned FIR in the year 2017. It is further contended that the learned trial court as well as learned revisional court failed into error of the fact that the Will dated 30.03.2009 relied upon by the complainant is in itself not legally proved document. He thus, contends that the learned trial court as well as learned revisional court have committed illegality and perversity in passing the impugned orders. Learned counsel for the petitioners has placed reliance on the following judgments:-
(1). Abhijit Pawar vs Hemant Madhukar Nimbalkar & Anr. : AIR 2017 Supreme Court 299 (2). Vijay Dhanuka & Ors. vs Najima Mamtaj & Ors. : (2014) 14 SCC 638 (3) Manoj Kumar & Ors. vs State of Rajasthan & Anr. : 2012 (3) Cr.L.R. (Raj.) 1342 (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (7 of 21) [CRLMP-5094/2023] (4). Vinod Baid vs. State of Raj. & Anr., S.B. Criminal Revision Petition Nos.140, 138 and 139 of 2002, decided on 30.04.2002 (5). Archana Mittal vs Anand Rathi Global Finance Ltd. : S.B. Criminal Misc. Petition No.2589/2022, decided on 31.08.2022 (6). Vishwakalyan Multistate Credit Co. Op Society Ltd. vs Oneup Entertainment Pvt. Ltd. : 2023 Cr.L.R. (SC) 1129 (7). Ajendra Agarwal vs State of Rajasthan & Anr. : 2016 (4) Cr.L.R. (Raj.) 1914 (8). Rajeshbhai Muljibhai Patel & Ors. vs State of Gujarat & Anr., Criminal Appeal Nos. 251-252 of 2020 (Arising out of SLP (Crl.) Nos.143-143 of 2019, decided on 10.02.2020 (9). Mohd. Khalid Khan vs State of Uttar Pradesh & Anr. :
(2015) 15 Supreme Court Cases 679 (10). Pepsi Foods Ltd. & Anr. vs Special Judicial Magistrate & Ors.
: (1998) 5 SCC 749 (11). Govind Prasad Kejriwal vs State of Bihar & Anr. : 2020 AIR (SC) 1079 (12). Balasaheb K Thackeray & Anr vs Venkat @ Babru & Anr.
Criminal Appeal No.236 of 2005, decided on 05.07.2006 (13). Krishnan & Anr. vs Krishnaveni & Anr. : (1997) 4 SCC 241 (14). Kailash Verma vs Punjab State Civil Suppliers : (2005) 2 SCC 571
9. With these submissions, learned counsel for the petitioners prays that the order taking cognizance dated 18.11.2021 passed by learned trial court and order dated 25.05.2023 passed by learned revisional court may be quashed and set aside.
10. Per contra, learned Public Prosecutor assisted by learned counsel for the complainant oppose the submissions of the petitioners' counsel. It is contended by them that the argument with regard to inquiry under Section 202 Cr.P.C. is wholly (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (8 of 21) [CRLMP-5094/2023] misconceived and in the facts and circumstances of the present case, inquiry under Section 202 Cr.P.C. was not required.
11. It is also argued that while concealing important facts, this petition has been filed and therefore, on this count alone, this petition is liable to be dismissed. Learned counsel for the complainant submits that earlier also, a criminal misc. petition (No.91/2018) was filed on behalf of the petitioners for quashing of the impugned FIR and all other consequential proceedings.
However, the said misc. petition was dismissed on merits by a Coordinate Bench of this Court vide order dated 22.02.2018. However, concealing this fact, the present misc. petition has been filed. He thus, contends that the petitioners have not come to this Court with clean hands.
12. It is also contended that mere pendency of civil proceedings will not create a bar for continuance of criminal proceedings. Learned counsel for the complainant submits that in a catena of judgments, it has been held that if criminality exists, civil proceedings with regard to same facts will not debar criminal proceeding. Counsel for the complainant also argues that in the garb of present petition under Section 482 Cr.P.C., the petitioners has filed second revision petition which is not maintainable. Learned counsel for the complainant has placed reliance on the following judgments:-
(1). Vijay Kumar Ghai & Ors. vs State of West Bengal & Ors.:
(2022) 7SCC 124 (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (9 of 21) [CRLMP-5094/2023] (2) G.M. Haryana Roadways vs. Jai Bhagwan & Ors. : (2008) 4SCC 127 (3) Krishna Prasad Verma (D) through LRs. vs State of Bihar & Ors. : (2019) 10SCC 640 (4). Lal Singh Ram Singh Rajput vs The Assistant Executive Engineer : (2005) 11 SCC 204 (5) Deepti @ Arati Rai vs Akhil Rai & Ors. vs. Akhil Rai & Ors. :
[1995] 0 SCC (Cri) 1020.
13. I have heard and considered the submissions advanced at bar and have gone through the material available on record.
14. So far as the submission made by counsel for the petitioners with regard to inquiry mandatorily required under Section 202 Cr.P.C in the instant case, is concerned, I do not find any substance in his submission. Chapter XV which contains Sections 200 to 203 deals with "Complaints to Magistrates". A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complainant and the witness present, if any. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction and thereafter to either inquire into the case by himself or direct investigation to be made by a police officer or by such officer as he thinks fit. Section 202 of the Code is reproduced hereinbelow for ready-referece:-
"202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (10 of 21) [CRLMP-5094/2023] authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
15. The very beginning of the aforesaid provision clearly reveals that any Magistrate, on receipt of a complaint of an offence in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, shall postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer but in the case at hand, the learned trial magistrate has taken (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (11 of 21) [CRLMP-5094/2023] cognizance on the basis of police investigation report and not on the complaint made to him and thus, the provisions of Chapter XV (Complaints to Magistrate) do not apply to the present case. Chapter XIV deals with the conditions requisite for initiation of proceedings and as to the powers of a Magistrate. Section 190 (1) provides that a magistrate may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
16. Thus, the contention raised by counsel for the petitioners that the learned trial magistrate has erred in not conducting inquiry under Section 202 Cr.P.C. is not tenable. Thus, the judgments relied upon by counsel for the petitioner regarding inquiry under Section 202 Cr.P.C. is of no avail to the petitioners' side.
17. The primary issue that has been raised by learned counsel appearing on behalf of the petitioners is to the effect that it is a civil nature dispute and that the registration of criminal case is an abuse of process of law. Invariably, in the case relating to cheating and fraud, there is generally some element of civil nature. It is well settled by the Hon'ble Supreme Court in the matter of 'M. Krishnan versus Vijay Singh and another' reported as 2001 (4) R.C.R. Criminal 405 that civil and criminal proceedings can be proceeded simultaneously. Both cases are to be decided by (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (12 of 21) [CRLMP-5094/2023] adopting separate yardsticks. It was observed that where the factual foundation for the offence has been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one of the ingredients have been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties.
18. The offences affecting the rights of a person in respect to his property and more so offences such as Criminal Breach of Trust, Stolen property, Cheating, Fraudulent Deeds and Disposition of Property, etc. a criminal proceeding can be initiated and the accused can be brought to justice. Similarly, in this type of cases a civil suit can also be initiated for recovery of money, property or title dispute as regard to the loss incurred. Regarding the facts and circumstances of the case, the criminal proceedings may be given more significance than the civil proceeding, however there is no hard and fast rule regarding the same. Both civil and criminal proceedings can be initiated by the victim simultaneously with distinct impetus and objective.
19. The issue as to whether criminal proceedings are permissible while civil litigation is pending or decided or as to whether civil and criminal litigation can go simultaneously in regard to same allegations has been decided by Hon'ble Supreme Court. The Hon'ble Supreme Court has held that civil and criminal cases can go simultaneously, if the allegation of criminality exist in the FIR. Reference of the judgments of Hon'ble Supreme Court in the case of "MS Sheriff vs the State of Madras & Ors. (AIR 1954 SC 397) and in the case of "P Swaroopa Rani vs M Hari Harayan @ Hari (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (13 of 21) [CRLMP-5094/2023] Babu" [(2008) 5 SCC 765] are relevant. Paras 13 to 17 of the judgment in the case of P Swaroopa Rani (supra) are quoted hereunder for ready reference -
"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. [See M.S. Sheriff v State of Madras AIR 1954 SC 397, Iqbal Singh Marwah v.
Meenakshi Marwah (2005) 4 SCC 370 and and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants(2005) 12 SCC 226]
14. It is furthermore trite that Section 195(1) (b)
(ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah (supra) stating:
25. An enlarged interpretation to Section 195 (1)
(b) (ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (14 of 21) [CRLMP-5094/2023] until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) is either not placed for trial on account of non-
filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:
"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong."
In regard to the possible conflict of findings between civil and criminal court, however, it was opined:
32. Coming to the last contention that an effort should be made to avoid conflict of findings (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (15 of 21) [CRLMP-5094/2023] 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....
It was concluded:
33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195 (1) (b) (ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.
15.Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute.
16. The High Court, therefore, in our opinion, was not correct in staying the investigation in the said matter.
Reliance has been placed by Mr. Gupta on Mahar Jahan and Ors. v. State of Delhi and Ors.(2004) 13 SCC 421wherein this Court was dealing with a proceeding under Section 145 of the Code of Criminal Procedure. This Court noticed that a civil (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (16 of 21) [CRLMP-5094/2023] dispute was given the colour of a criminal case. As therein a proceeding under Section 145 of the Code of Criminal Procedure was pending, when a civil suit was also pending before a competent court of law, it was opined:
4. It is not disputed by the learned Counsel for the parties that this very property which is the subject-matter of these criminal proceedings is also the subject-matter of the civil suit pending in the civil court. The question as to possession over the property or entitlement to possession would be determined by the civil court. The criminal proceedings have remained pending for about a decade. We do not find any propriety behind allowing these proceedings to continue in view of the parties having already approached the civil court. Whichever way proceedings under Section 145 CrPC may terminate, the order of the criminal court would always be subject to decision by the civil court. Inasmuch as the parties are already before the civil court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit. It was furthermore observed:
"7. We have simply noted the contentions raised by the parties. The civil court, in our opinion, would be the most appropriate forum to take care of such grievances and pass such interim order as would reasonably protect the interests of both the parties. The civil court may issue an ad interim injunction, may appoint a Commissioner or Receiver or may make any other interim arrangement as to possession or (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (17 of 21) [CRLMP-5094/2023] user of the property which is the subjectmatter of proceedings in the civil court exercising the power conferred on it by Sections 94 and 151 of the Code of Civil Procedure."
It was, therefore, a case where this Court quashed a proceeding under Section 145 of the Code of Criminal Procedure as the matter pending before it arose out of a civil proceedings. Such observations were made keeping in view the fact that possession of the parties over the property in suit was in question.
17. The impugned order, therefore, cannot be sustained which is set aside accordingly. Civil Appeal arising out of SLP (C) No. 15670 of 2006 is allowed."
20. Criminal complaint cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If ingredients of offence alleged against the petitioner-accused prima facie make out in complaint/FIR, then the criminal proceeding shall not be interdicted. In the civil suit, it will be decided whether petitioners are entitled to receive the suit property or not on the basis of document in question whereas the document is fabricated or not, cannot be decided in the civil suit.
21. Shri Raneejt Singh expired on 07.01.2010 in Delhi and prior to his death, a will dated 30.03.2009 is said to be executed in favour of Shri Avinash Chandra Chandna, which the accused petitioners are disputing. The complainant filed a testamentary case (Test Case No.19/2010) in the year 2010 before Delhi High Court in connection with the said Will dated 30.03.2009. In my (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (18 of 21) [CRLMP-5094/2023] considered opinion, the argument regarding genuineness of the Will does not help the petitioners' case as in the said case, the bonafideness of the Will, said to be executed in favour of the complainant, would be examined whereas in the instant case, it is the accused petitioners whose conduct is being questioned. Both have separate cause of actions and cannot be co-related. The failure of the complainant in proving the Will to be valid one, would not permit any third person to usurp the property of Shri Ranjeet Singhji. Further, the argument of the petitioner's counsel that the original complainant has expired and without there being any leave of the court concerned, the present complainant (legal heirs of the original complainant) has been given opportunity to proceed with the judicial proceedings against negative final report is not such a strong ground so as to persuade this Court to quash the orders impugned as the trial court has taken cognizance on the basis of police investigation report. Even in the eventuality of a death of an accused/convict, his/her legal heirs are allowed to contest the case whereas in the instant case, it is the complainant who after filing the report at police station, has expired and thus, his legal heirs are very much entitled to pursue the case. The trial court may ask the legal heirs of the original complainant to move appropriate application. The trial court has taken cognizance for the aforesaid offences on the police investigation report and has directed prosecution to pursue the case. In case, the original complainant has expired and none has appeared on his/her behalf to lead the case, the State through prosecution would be there to lead the case.
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22. Vide order dated 22.02.2018 passed in S.B Criminal Misc. Petition No.91/2018, filed on behalf of accused petitioner Jitendra Singh, this was contended by learned counsel for the complainant that after the alleged document dated 08.05.2008, Shri Ranjeet Singhji filed an application in Civil Misc. Appeal No.1818/2007 before this Court on 18.12.2008 to the effect that he has no objection in the division of the property and he is willing to get the matter finalized at the earliest so that he may come to final knowledge about his share in the property and may utilize the property during his life time and that Ranjeet Singh ji never informed the Court that he has given absolute ownership of the property to Ashapura Mataji and after considering such contentions of complainant-respondent, the said misc. petition filed on behalf of accused Jitendra Singh was dismissed on merits.
23. This Court has also gone through the afore-mentioned application filed on behalf of Shri Ranjeet Singh on 19.12.2018 in S.B. Civil Misc. Appeal No.1818/2007, after calling the record of said appeal, from the Office of this Court. On a careful reading of the said application, this Court does not find reference of the alleged document dated 08.05.2008 anywhere in the application. This fact was also dealt with by learned trial court as well as learned revisional court. The rebuttal made by the accused petitioners on this point was also considered by the learned revisional court while passing the order impugned dated 25.05.2023. Thus, in my considered opinion, the observation made by both the courts below regarding this point, need no interference. Needless to say that the petitioners have not (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (20 of 21) [CRLMP-5094/2023] mentioned the fact regarding previous misc. petitions, filed on behalf of the petitioners.
24. Further the delay occasioned in lodging the FIR cannot be a sole ground to quash the criminal proceedings, if the facts and circumstances of a case prima facie makes out a criminal case. It transpires from the record that the document in question was not made available to the IO by the accused persons during the course of investigation inspite of several notices issued to them by the investigating agency under Section 91 Cr.P.C. The investigating agency failed to make serious efforts in recovering the original questioned document on which the petitioners are claiming property in question. It is apposite to mention here that investigating officer has relied upon the report of private handwriting expert while it was the duty of the IO to get report from the State/Central Forensic Science Laboratory with regard to signatures on the document in question. Therefore, the petitioners cannot be allowed to take advantage of the faulty investigation. Section 73 of the Evidence Act also empowers the Court to compare the disputed signatures with the admitted signatures of a person. Further, the court may summon a report from FSL, if need arises for just decision of the case.
25. Apart from above and lastly, it would be pertinent to observe here that cognizance is not a final conclusion of trial. It is just a prima faice opinion of court, based on the material available on record, regarding an offence being made out or not. The (Downloaded on 22/03/2024 at 09:42:17 PM) [2024:RJ-JP:12597] (21 of 21) [CRLMP-5094/2023] petitioners would always be at liberty to defend their case at appropriate stage.
26. In the backdrop of the aforesaid discussion, I am of the considered opinion that the learned trial court as well as the learned revisional court have not committed any perversity or illegality in passing the orders impugned. Both the courts below have passed detailed and well-reasoned orders, which do not require any interference by this Court in exercise of powers under Section 482 Cr.P.C. Accordingly, the impugned orders 18.11.2021 and 25.05.2023 are hereby affirmed. The misc. petition lacks merit and is hereby dismissed. Stay application also stands dismissed. However, the observations made hereinabove would not prejudice the trial in any manner.
(ANIL KUMAR UPMAN),J Sudhir Asopa/ (Downloaded on 22/03/2024 at 09:42:17 PM) Powered by TCPDF (www.tcpdf.org)