Punjab-Haryana High Court
Rajinder Kumar Chhibbar vs Aseem Bakshi on 5 April, 2006
Equivalent citations: (2006)143PLR624
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing of the complaint dated 28.2.2001, Annexure P-1, filed by the respondent, who is his nephew, against him under Sections 420/511/468/471 and 182 I.P.C.; and the summoning order dated 7.10.2001, Annexure P-4, passed by Judicial Magistrate, 1st Class, Chandigarh, whereby the petitioner has been summoned to face trial under Section 420 read with Section 511 and Section 182 I.P.C.
2. The brief facts of the case are that late Sh. Bakhshi Mulak Raj Chhibbar, who was a practicing Advocate, was owner of two houses i.e. houses No. 681 and 721, Sector 8, Chandigarh. He died on 5.4.1974 leaving behind three sons, namely Rajinder Kumar Chhibbar (petitioner), Surinder Kumar Chhibbar (father of respondent) and Raj Bakhshi and four daughters. During his life time, Sh. Bakhshi Mulak Raj Chhibbar executed a registered Will dated 17.1.1972, whereby he bequeathed house No. 681, Sector 8, Chandigarh, in favour of the petitioner. He was also given a right to continue to reside in the ground floor of house No. 721, Sector 8, Chandigarh, as he has been practicing there as an Advocate. The other two sons, namely Surinder Kumar Bakhshi and Raj Bakhshi were given life interest in house No. 721, but they were not given right to alien-ate this house by sale, mortgage or any other device. They were given right to live on the first floor in the house during their life time only and after their death, the house was to be inherited by their progeny, in case they marry and have their children. Otherwise, the house was to be inherited by the petitioner or his children in case he is not living then. As per the Will, the petitioner was given a right to continue to reside in the ground floor of house No. 721, as he had been practicing there as an Advocate. However, under the Will, the petitioner was required to pay Rs. 200/- per month to each of the two brothers by way of rent. At the time of execution of the Will, Surinder Kumar Bakhshi and Raj Bakhshi were unmarried, but subsequently, Surinder Kumar Bakhshi had married and is having two sons, namely Assem Bakhshi and Ashish Bakhshi. However, Raj Bakhshi is issueless.
3. Vide order dated 25.3.1980, passed by the District Judge, Chandigarh, the aforesaid Will was duly probated. According to the said Will, House No. 681, Sector 8, Chandigarh, has already been transferred in the name of the petitioner. On 9.9.1999, the petitioner made an application to the Estate Officer, U.T. Chandigarh for transfer of ground floor of house No. 721, Sector 8-B, Chandigarh in his favour and first floor of the said house in favour of his brothers Surinder Kumar Bakhshi and Raj Bakhshi. The said application is re-produced below:
To Estate Officer, U.T. Chandigarh.
Sub: Transfer of House No. 721, Sector 8-B, Chandigarh N.523-A (Old No.) Plot No. 8, Street D, Chandigarh.
Sir, My father Bakshi Mulak Raj Chhibbar was the owner of above house, who died on 5.4.1974.
That my father executed a Will dated 17.1.1972. Will was probated in the court of Distt. Judge, Chandigarh vide order dated 25.3.1980. Certified copy of the Will Fx.P-1 dated 17.1.1972 and the typed copy of the said Will duly attested to be true copy of the Executive Magistrate, Chandigarh are enclosed. The Will inter alia provide as under:
I give house No. 681 to my second son Rajinder Chhibbar. My son Rajinder Chhibbar will have right to continue to reside in the Ground Floor of House No. 721 as he has been practicing here as an advocate. He had his office and residence here. In the interest of his profession he needs the Ground Floor for residence and his office.
My eldest brother Surinder Bakhsni and youngest brother Raj Bakhshi have been given life interest only on the first floor of House No. 721, Sector 8-B, Chandigarh and they have a right to live during their life only.
I am enclosing an affidavit of understanding to transfer the said house No. 721, Sector 8-B,Chandigarh in your office record as under:
A) Ground Floor in favour of Rajinder Chhibbar.' B) First Floor in favour of Surinder Bakhshi and Raj Bakhshi.
It may respectfully be submitted that earlier on 5.7.1980 1 had applied for the transfer of House No. 681, Sector 8-B, Chandigarh (R.P. No. 9515) on the basis of the same will duly probated (copy enclosed) vide memo No. 7776/RP 9515/CI dated 10.7.1980, you were pleased to note the transfer in my name.
Later in view of my subsequent letter dated 14.7.1981 the Estate Officer Chandigarh vide his memo No. 4928/RP No. 9515/GI dated 29.3.1982 was pleased to note the transfer in the name of Rajinder Chhibbar as Karta of Rajinder Chhibbar HUF. Photocopy of the letter dated 29.3.1982 is enclosed.
It is therefore, respectfully prayed that on the basis of the aforesaid precedent, House No. 721, Sector 8-B, Chandigarh, may kindly be transferred in the name of:
1. Rajinder Chhibbar (Ground Floor)
2. Surinder Bakhshi and Raj Bakhshi (First Floor).
Thanking you, ours faithfully, (Rajinder Kumar Chhibbar) Senior Advocate, House No. 721/8-B, Chandigarh.
Ph: 781751, 547601 The complainant Aseem Bakhshi and his brother Ashish Kumar Bakhshi through their special attorney also filed an application to the Estate Officer, Chandigarh on 15.12.2000 praying for transfer of the entire property bearing house No. 721, Sector 8-B, Chandigarh in their joint name. On that application, the petitioner and his younger brother Raj Bakhshi were provided opportunity to file objections, if any, before effecting transfer of ownership of the said house in favour of Ashish Kumar Bakhshi and Aseem Bakhshi. The petitioner filed objections denying the right of Ashish Bakshi and Aseem Bakshi to get the said house transferred in their name on the strength of the Will dated 17.1.1972. During the pendency of the aforesaid applications, respondent Assem Bakhsi, grand-son of Shri Mu-lakh Raj Chhibbar, filed the impugned complaint, alleging therein that on 9.9.1999, petitioner Rajinder Kumar Chhibbar filed an application to the Estate Officer, U.T. Chandigarh for transfer of house No. 721, Sector 8-B, Chandigarh in his name by making false representation and by mis-stating the terms of the Will dated 17.1.1972, thereby inducing the F. state Officer, Chandigarh to transfer the said house in his favour, thereby depriving the complainant and his brother Ashish Bakhshi from inheriting the said house left by their grand-father Sh. Bakhshi Mulak Raj Chhibbar. In the complaint, it has been stated that as per the Will, the respondent and his brother being children of Surinder Kumar Bakhshi are entitled to inherit house No. 721, Sector 8-B, Chandigarh. But petitioner knowingly and willfully with fraudulent and dishonest intention had submitted false and fabricated application dated 9.9.1999 to the Estate Officer for transfer of the said house in his name with a view to deprive them from inheriting the said house as per the Will. He had made the said application with intention to cause wrongful gain to himself and wrongful loss to them. Thus, it was alleged that the petitioner has committed offence punishable under Sections 420, 468, 471, 511 I.P.C. besides offence under Section 182 I.P.C.
4. Subsequently, respondent Aseem Bakhshi and his brother Ashish Kumar Bakhshi filed civil suit No. 157 of 2001, titled Aseem Bakhshi, Ashish Bakhshi v. Union Territory of Chandigarh and Ors. for declaration to the effect that the plaintiffs are the owners of the Mouse bearing No. 721 Sector 8-B, Chandigarh on the basis of the Will dated 17.1.1972 and for mandatory injunction, directing defendant No. 1 to transfer the House No. 721 Sector 8-B, Chandigarh in favour of the plaintiffs. Thereafter, in the year 2003, S.K. Bakhshi, Aseem Bakhshi and Ashish Kumar Bakhshi filed another civil suit No. 254 of 2003 titled Surinder Kumar Bakhshi, Aseem Bakhshi and Ashish Bakhshi v. Rajinder Kumar Chhibbar and Ors. for declaration with consequential relief for mandatory injunction and permanent injunction. In this suit, a declaration has been sought to the effect that the plaintiffs and defendants No. I to 3 are entitled to succeed to the estate of late Bakhshi Mulak Raj Chhibbar on the basis of Will dated 17.1.1972 with a consequential relief that plaintiff No. l and defendant No. 3 are having life interest in house No. 721, Sector 8-B, Chandigarh and right of residence during their lives on the first floor of the said house; whereas plaintiffs No. 2 and 3 and the progeny of defendant No. 3 are entitled to own and possess the said house after the demise of plaintiff No. l and defendant No. 3 as absolute owners.
5. Undisputedly, till today, house No. 721, Sector 8-B, Chandigarh has not been transferred in the office of Estate Officer, Chandigarh, in the name of either of the parties, because of the pendency of the various litigations between the parties.
6. In support of the said complaint, the respondent himself appeared as CW.1 and examined Atul Kumar Soni, Senior Clerk, Office of Estate Officer, U.T. Chandigarh, as CW.2, who placed on record copy of the application filed by the petitioner as Ex.C2, copy of the Will dated 17.1.1972, Ex.C1, affidavit of the petitioner, filed along with the application, as Ex.C3. He also placed on record copy of the indemnity bond as Ex.C4 and copy of the probate order dated 25.3.1980 as Ex.C5. He further deposed that transfer of the said house on the application of the petitioner could not be effected as a letter of objection was submitted by Surinder Kumar Bakhshi. After hearing the arguments of counsel for the respondent-complainant, Judicial Magistrate 1st Class, summoned the petitioner under Section 420 read with Section 511 I.P.C. and under Section 182 I.P.C., while observing as under:
...I come to the conclusion that the complainant has proved the letter Ex.C7 (sic) in which Rajinder Kumar Chhibbar has concealed the factor regarding the marriage of Surinder Kumar Bakshi and right of living on the ground floor of house No. 721, Sector 8-B, Chandigarh was given to Rajinder Kumar during his life time only and Surinder Bakshi and Raj Bakshi only given life interest and it is mentioned in the will that in case they marry and have their child their progeny will inherit the house and otherwise it will be inherited by his second son or his children. So, prima facie offence and attempting of cheating has been made out from the letter Ex.C7 (sic) as Rajinder Kumar Chhibbar has intentionally concealed the part of the will regarding maintenance and prima facie it is specifically mentioned in the will that in case Surinder Kumar Bakshi and Raj Bakshi marry and have their children, their progeny will inherit H. No. 721, Sector 8-B, Chandigarh otherwise it will be inherited by Rajinder Kumar. By giving this false information he tried with intention to public servant to use his lawful power to injure other persons. So, prima facie offence under Section 182 and 420 read with Section 511 is made out. So he be summoned accordingly. However, no offence under Section 468/471 is made against the accused because there is no forgery as letter himself written by the accused, it does not come within the preview of Section 468 of I.P.C. So, the accused be summoned under Section 420 read with Section 511 of I.P.C. and Under Section 182 of I.P.C.
7. The petitioner is seeking quashing of the aforesaid complaint as well as the summoning order on the following grounds:
(a) That the complaint, Annexure P-1, and the preliminary evidence, i.e. statements of CW.2 and CW.1, Annexures P-2 and P-3, do not disclose the commission of any offence, when the same are read in a correct framework and examined in a valid legal framework.
(b) That the complaint is attended by blatant malafide and actuated by ulterior objectives. The complainant is determined to pursue the complaint with a view to defame the petitioner and to overawe him to give up his legal rights as per the dictates of the complainant.
(c) That the complaint is a glaring illustration of abuse of the process of the court.
(d) That there is a legal bar against the institution and continuation of the complaint as in view of Section 195(1) of the Code, no court shall take cognizance of an offence punishable under Section 182 I.P.C. except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. Since the alleged offence under Section 182 I.P.C. and 420 read with Section 511 I.P.C. are alleged to have been committed in the course of same transaction, therefore, the bar envisaged under Section 195(1) of the Code shall cover both the alleged offences and the summoning order is liable to be quashed.
8. I have heard the arguments of learned Counsel for both the parties.
9. Counsel for the petitioner submitted that from the bare perusal of the complaint and the allegations made therein, no alleged offence is made out. In this case, the execution of the Will dated 17.1.1972 by Shri Bakhshi Mulak Raj Chhibbar has not been disputed. Even the Will was probated. It is also not disputed that the petitioner has been given a right to live in the ground floor of house No. 721 during his life time subject to the condition that he will pay Rs. 200/- per month to each of his two brothers. Counsel for the petitioner further submitted that two brothers of the petitioner have been given life interest in house No. 721. They were not given right to alienate the said house. They were only given right to live in the said house during their life. It is only after death, the house was to be inherited by their progeny, in case they marry and have their children. Counsel submits that on the basis of the registered Will, which was duly probated, the petitioner submitted the application for transfer of the ground floor of house No. 721, Sector 8-B, Chandigarh, in his favour, in the office record of the Estate Officer. The petitioner only put his claim to the authorities regarding ground floor of the said house, as according to his interpretation of the Will, he was entitled for the same. Along with the said application, the petitioner filed copy of the Will, affidavit and indemnity bond, as required. Counsel for the petitioner submitted that copy of the Will was annexed with the application, which itself was self speaking, therefore, there was no question of any mis-representation to the authorities, as alleged by the complainant. He further submitted that making of such an application asking the authorities to transfer or sanction the mutation on the basis of the Will does not constitute any cheating, as defined in Section 415 I.P.C., as the petitioner only filed application before the competent authority to enforce his right under the Will. Counsel further submitted that it is argued on behalf of the complainant that in the application filed by the petitioner, names of the complainant and his brother were not mentioned, though they too are the legal heirs. In this regard, counsel for the petitioner submitted that the Will was attached with the application, in which there was a clear stipulation that the progeny of Surinder Bakshi and Raj Bakhshi will inherit the house, in case they marry, otherwise it will be inherited by the petitioner or his children. Counsel submitted that since the complainant and his brother have no right, title or interest in the property till the death of their father, therefore, their names were not mentioned. Counsel for the petitioner argued that the petitioner neither stated any thing wrong nor concealed any thing while making the application to the Estate Officer. He attached correct copy of the Will. It is not the case of the complainant that there was any forgery in the Will or the correct copy of the Will was not annexed with the application. Thus, counsel for the petitioner submitted that making an application to an authority for implementation of his legal right does not itself constitute an offence. He further submitted that the instant proceedings are the abuse of process of the court. According to counsel for the petitioner, the complainant, his brother and father have already approached civil court in this regard and have filed the two civil suits, which are still pending. Counsel for the petitioner submitted that in view of the pendency of those two suits, continuation of the criminal proceedings in the facts and circumstances of the case is abuse of the process of the Court.
10. Counsel for the petitioner further submitted that the present complaint is not maintainable and the Judicial Magistrate Ist Class has no jurisdiction to take cognizance of this complainant in view of Section 195(1) of the Code. He further submitted that in the present case, the petitioner has been summoned under Section 420 read with Section 511 I.P.C. and under Section 182 I.P.C. From the reading of the complaint, it is apparent that both the alleged offences have been committed in the course for the same transaction. The petitioner is stated to have committed the offence by making application before the F.state Officer, a public servant, in terms of Section 182 I.P.C., to whom the alleged false information was given with intent to cause to him to use his lawful power to the injury of the complainant and his brother. Counsel for the petitioner submitted that the offence under Section 182 I.P.C. can be prosecuted neither by a private complaint filed by a citizen nor can the police file the challan under Section 173 of the Code on the basis of FIR in such a case, Section 195(1) of the Code clearly bars the prosecution for the said offence on a private complaint. He submitted that since the offence under Section 182 I.P.C. and under Section 420 read with Section 511 I.P.C. are alleged to have been committed in the course of the same transaction, therefore, the bar created by Section 195 of the Code is applicable to both the offences, hence the instant complaint cannot be entertained by the Court. In this regard, the learned senior counsel relied upon a decision of the Supreme Court in State of Karnataka v. Hemareddy and Anr. and State of U.P. v. Suresh Chandra Srivastava and Ors. (1984)3 Supreme Court Cases 92.
11. On the other hand, learned Counsel for the respondent submitted that in the application, affidavit and the indemnity bond, the petitioner has deliberately concealed the material facts with fraudulent and dishonest intention. He filed a false and fabricated application to the Estate Officer for the purpose of transfer of House No. 721, Sector 8-B, Chandigarh, in his name and thereby caused wrongful gain to himself and wrongful loss to the complainant and his brother by depriving them from inheriting the said house as per the Will dated 17.1.1972. In the said application, he intentionally concealed the following facts:
(a) He was permitted to use and occupy the ground floor of House No. 721, Sector 8-B, Chandigarh in the interest of his profession only and on payment of Rs. 200/- per month by way of rent to each of his brothers, which at the time of the execution of the will was the rent he was receiving from property No. 681, Sector 8-B that fell to his share.
(b) He has deliberately suppressed the fact that the eldest son and the youngest son of the legator Bakshi Mulkh Raj Chhibbar had married and the two sons of the eldest son i.e. the complainant Aseem Bakshi and Ashish Bakshi would inherit house No. 721, Sector 8-B Chandigarh as the youngest son is issueless in accordance with the terms of the Will and the wishes of the testator. In fact, there is not a whisper or the acknowledgement about the sons of the eldest son in the application dated 9.9.1999.
(c) The application dated 9.9.1999 makes out as if a clause in the Will has been reproduced, which in fact is a suppression of the fact that his status in house No. 721 is that of a mere licensee if the entire paragraph was reproduced.
(d) The affidavit enclosed with the said application suppresses the fact that there are two other legal heirs to the property and the petitioner has categorically made a statement that "all legal heirs are mentioned above and no legal heir has been left.
Thus, according to counsel for the respondent, the petitioner has committed the alleged offence, for which he has been rightly summoned by the trial court. She submitted that in the instant case, it cannot be said that from the bare perusal of the complaint, no offence is made out against the petitioner. She further submitted that in the affidavit, the petitioner has deliberately and intentionally concealed name of the complainant and his brother, therefore, the alleged offence clearly falls within the explanation to Section 415 I.P.C., which mentions dishonest concealment of facts as deception within the meaning of this section. Counsel for the respondent submitted that in the application, the petitioner did not re-produce certain clause of the Will, thus, he deliberately suppressed the material fact from the authority. Therefore, it cannot be said that the complaint filed by the respondent on the face of it does not disclose the alleged offence. Counsel further submitted that the allegation that the instant complaint has been filed by the complainant with malafide intention has no bearing while considering the issue of quashing the complaint. In support of her submission, counsel for the respondent-complainant relied upon a decision of the Gujarat High Court in Probir Ghosh and Ors. v. State of Gujarat and Anr. 1995 Criminal Law Journal 2883 and Shiva Nath Prasad v. State of West Bengal and Ors. 2006(2) SCALE 217: Counsel for the respondent further submitted that the bar created by Section 195 Cr.P.C. is not attracted in the instant case. She submitted that the two offences for which the petitioner has been summoned are entirely different and on this ground, the complaint as well as the summoning order cannot be quashed.
12. After hearing counsel for the parties and going through the complaint, the summoning order and the other documents annexed with the petition, I am of the opinion that the instant complaint as well as the summoning order are liable to be quashed. It is well settled, as has been so held by the Supreme Court in R.P. Kapur v. The State of Punjab , that in some of the following categories of cases the inherent jurisdiction of this Court could and should be exercised to quash the criminal proceedings:
(i) Where there was a legal bar against institution or continuation of the proceedings;
(ii) Where the allegation in the First Information Report or the complaint did not make out the offence alleged; and
(iii) Where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly and manifestly failed to prove the charge.
Again in Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chadrojirao Angre and Ors. , the Supreme Court has held as under:
7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
13. I my opinion, case of the petitioner falls in the first two categories of cases. First of all. 1 will deal with category (i). In the present case, the summoning order has been passed under Section 420 read with Section 511 I.P.C. and Section 182 I.P.C. It is apparent from the reading of the complaint itself that both the alleged offences have been committed in the course of same transaction i.e., while filing the application dated 9.9.1999 accompanied by affidavit and the indemnity bond. All these documents were submitted in the course of one transaction, namely for seeking transfer/mutation of a part of house No. 721, Sector 8-B, Chandigarh. In the said transaction, the petitioner is alleged to have committed two offences i.e. under Section 420 read with Section 511 I.P.C. and under Section 182 I.P.C. Section 182 I.P.C. reads as under:
Section 182 I.P.C.- False information, with intent to cause public servant to use his lawful power to the injury of another person - Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant -
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury of annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
The petitioner is stated to have committed the said offence by moving the application before the Estate Officer, a public servant, in terms of Section 182 I.P.C. with alleged false information given with intention to cause the Estate Officer to use his lawful power to the injury of the complainant and his brother. Section 195 of the Code creates a bar that the offence under Section 182 I.P.C. cannot be prosecuted either by a private complaint filed by a citizen or by the police by filing challan under Section 173 of the Code on the basis of an F.I.R. in such a case. Section 195 of the Code provides as under-
Section 195 Cr.P.C.- Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence -
(1) No Court shall take cognizance -
(a) (i) of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
It is clear from the reading of the above provision that only public servant concerned or some other public servant to whom he is administratively subordinate can initiate action by way of a complaint in writing to the context of the present case, only the Estate Officer or his superior officer, to whom the former is subordinate, is competent to file the complaint. A complaint by any other person is not maintainable at all and suffers from an insurmountable legal bar. The opening words of Section 195 of the Code stating that "No Court shall take cognizance" enact an absolute bar on the initiation of proceedings by any other person than the one stipulated in the provision. Thus, the existence of a legal bar is one of the well established ground on which the inherent jurisdiction of the High Court can be exercised to quash the criminal proceedings. Though the offence under Section 420 read with Section 511 I.P.C. is not covered by the bar created under Section 195 of the Code, but in my opinion, where an offence attracting the bar of Section 195 of the Code and another offence not directly attracting the bar are committed in the course of the same transaction and it is not possible to split the said transaction, then the bar envisaged by Section 195 of the Code shall cover all the offences in the course of the same transaction. The Supreme Court in State of Karnataka v. Hemareddy and Anr. (supra) has observed as under:
In case where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld.
(emphasis added).
The judgment of the Supreme Court in State of U.P. v. Suresh Chandra Srivastava and Ors. (supra) relied upon by learned Counsel for the respondent also supports case of the petitioner. The allegations in that case was that the accused had removed the used stamps from Court cases and reused the same. The accused had claimed protection under Section 195 of the Code on the ground that the offences and Sections 467, 471 and 120-B I.P.C. fall within the preview of Section 195 of the Code. The Supreme Court found, as a fact, in para 4 of the judgment that the above mentioned offences were not at all made out and the only offences under Sections 262, 263, 380 and 420 I.P.C. were made out, which are obviously not covered by Section 195 of the Code. Having held so, the Supreme Court again reiterated the principles with regard to the offences committed in course of the same transact ion. The relevant part of the said observation is re-produced below:
The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 196 will affect only the offences mentioned therein unless such offences form integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code.
Thus, in my opinion, in the instant case, both the alleged offences i.e. under Section 420 read with Section 511 I.P.C. and 182 I.P.C. form integral part so as to amount to offences committed as a part of the same transaction. Therefore, if there is bar for taking cognizance of one offence, the complaint qua the second offence for the same transaction is also liable to be quashed.
14. Now, 1 will deal the second category i.e. from bare perusal of the complaint, no alleged offence is made out. The allegations against the petitioner in the complaint, An-nexure P-1, are that the petitioner was given the right of living in the ground floor of House No. 721, Sector 8-B, Chandigarh, during his life time only. His brothers Surinder Bakhshi (father of the complainant) and Raj Bakhshi were given life interest in the first floor of the said house. At the time of execution of the Will dated 17.1.1972, Surinder Bakhshi and Raj Bakhshi were unmarried and as such, Bakhshi Mulak Raj Chhibbar in the said Will had specifically mentioned that in case Surinder Bakhshi and Raj Bakhshi marry and have their children, their progeny will inherit the said house, otherwise, it will be inherited by the petitioner and his children. It has been stated that since Surinder Bakhshi had married and he was having two children, therefore, they being progeny of Surinder Bakhsi were entitled to inherit house No. 721 in terms of the Will. It has been further alleged that the petitioner had made a written application to the Estate Officer, U.T. Chandigarh for transfer of the said house by making false representation and by mis-stating the terms of the Will, thereby depriving the complainant and his brother from inheriting the said house. It has also been alleged in the complaint that the said false application was filed with fraudulent, dishonest and malafide intention. However, it has not been disclosed at all as to what false fact was stated by the petitioner and how a wrongful loss was caused to the complainant and a wrongful gain was taken by the petitioner. There is no reference to any affidavit or indemnity bond in the complaint, on which counsel for the complainant tried to rely upon during the course of arguments. It has been argued by counsel for the respondent-complainant that the petitioner has submitted a wrong affidavit, in which he has suppressed the fact that there are two other legal heirs to the property i.e. the complainant and his brother being progeny of Surinder Chhibbar. In the affidavit, names of all the legal heirs, except the complainant and his brother have been mentioned, but he had stated that all legal heirs were mentioned and no legal heir was left out. Further, it has been argued by counsel for the respondent-complainant that in the application dated 9.9.1999, the petitioner has not re-produced all the clauses of the Will and has deliberately suppressed the clause i.e., whereby the petitioner was liable to pay Rs. 200/- per month each to both of his brothers during their life time. However, it is not disputed that along with the application, copy of the Will as well as the probate order were also filed. It is hot the case of the complainant that the petitioner has done any mis quoting or alteration in the Will or the probate order. In the application, a prayer was made for transfer of the said house in the record of the Estate Officer in the name of Rajinder Kumar Chhibbar petitioner, with regard to the first floor. It is not understandable that by making such a prayer, how a misrepresentation was made with fraudulent, dishonest and malafide intention to cause wrongful gain to him or wrongful loss to the complainant. The complainant and his brother claim to have interest in the property. It is their case that their names were mentioned in whose favour transfer of the house should be made. The petitioner was having bonafide impression that till Surinder Kumar Bakhshi, father of the complainant, is alive, the complainant and his brother have no interest in the property. They will inherit the property only after the death of their father Surinder Kumar Chhibbar. Since father of the complainant is alive, therefore, there is no question of the complainant or his brother having an interest in the aforesaid house during the life time of their father. From the reading of the complaint or the application, in my opinion, no offence under Section 420 read with Section 511 I.P.C. is made out. Copy of the Will was duly attached with the application, in which there was a clear stipulation that the children of Surinder Kumar Chhibbar and Raj Bakhshi will have a right to live in the house during their life and on their death, the house will be inherited by their children. Thus, the complainant and his brother had absolutely no right, title or interest in the property till the death of their father. This was the perception of the petitioner, when he made the application. Therefore, merely because the petitioner filed an application claiming sanction of mutation in his favour and in favour of his two brothers on the basis of life interest created in favour of all the three brothers, he did not commit any offence. If an incorrect construction of the Will is to be treated as a criminal offence, then the complainant and his brother have also committed the same offence while claiming the said house in the civil suit, in which they claimed themselves to be owners of the said house on the basis of the said Will during the life time of their father. Thus, in my opinion, the complaint and the supporting evidence do not disclose any offence. Hence, the complaint as well as the summoning order are liable to be quashed.
15. In Madhavrao Jiwaji Rao Scindia's case (supra), the Supreme Court has held that the High Court can quash the criminal proceedings, if the Court, while taking into consideration the special feature which appears in a particular case, frames an opinion that continuation of the criminal proceedings is not in the interest of justice. In my opinion, the facts and circumstances of the present case also fall in this category. No useful purpose is likely to be served by allowing the criminal prosecution to continue, keeping in view the fact that the civil suits between the parties regarding the property in question are pending and on the applications filed by both the parties for transfer of their name in the office record of the Estate Officer, no transfer has yet been made. Both the parties are putting their claim on the basis of the Will by interpreting the same in their favour. Ultimately, the matter will be finally decided by the civil court. By putting the claim, on the basis of interpretation of the Will, before a competent authority for sanction of the mutation for transfer of their share in the property in the office record of the Estate Officer itself does not constitute an offence.
16. In view of the above, this petition is allowed and the complaint dated 28.2.2001, Annexure P-1, filed by the respondent, and the summoning order dated 7.10.2001, Annexure P-4, passed by the Judicial Magistrate 1st Class, Chandigarh, are set aside.