Chattisgarh High Court
Rajkumar Sharma @ Raju vs Smt. Durga Sharma on 11 November, 2024
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2024:CGHC:43758
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 782 of 2019
1. Rajkumar Sharma @ Raju S/o Late Shri Dheeraj Prasad Aged About 38
Years R/o Sarwani, (Parasapali), Police Station Saragaon, District Janjgir
Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
2. Mahesh Kumar Karsh S/o Late Shri Jagatram Karsh Aged About 46 Years
R/o Sarwani, (Parasapali), Police Station Saragaon, District Janjgir Champa,
Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
3. Ramdhan Gond S/o Shri Tilakram Aged About 27 Years R/o Sarwani,
(Parsapali), Police Station Saragaon, District Janjgir Champa, Chhattisgarh.,
District : Janjgir-Champa, Chhattisgarh
... Petitioners
versus
1. Smt. Durga Sharma D/o Late Shri Dheeraj Prasad R/o Krishnapur, Tehsil
Ramanujganj, Police Station Surajpur, District Surajpur Chhattisgarh.,
District : Surajpur, Chhattisgarh
2. Diamond Sharma, S/o Late Shri Dheeraj Prasad R/o Kharod, Tehsil And
Police Station Sheorinarayan District Janjgir Champa Chhattisgarh.
... Respondents
For Appellant : Mr. Anish Tiwari, Advocate
For Respondent : Mr. Parasmani Shriwas, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
Order on Board.
Digitally signed
by SANTOSH
SANTOSH KUMAR
KUMAR SHARMA
SHARMA Date:
2024.11.26
11:16:20 +0530
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11/11/2024
1. The petitioners have challenged the order dated 05.01.2019 passed by Judicial Magistrate First Class, Janjgir Champa by which it has registered the Complaint Case No. 79 of 2019 filed under Section 200 of the CrPC for commission of offence under Sections 420, 467, 468 and 471 of the IPC.
2. Facts of the case as reflected from the record are that the complainant is the sister of petitioner and respondent No. 2 is the step brother of the petitioner. The complainant filed complaint under Section 200 of the CrPC alleging that the property situated at village Sarwani, PHN No. 14, R.N. M. Bamhnidih, Tahsil Champa District Janjgir Champa was recorded in the name of father of accused No.1 and her father who expired on 06.08.1999 and at that time no partition of the property was taken place. Thereafter on 16.01.1999 prior to death of father of the accused, the other co-accused in collusion with petitioners No. 2 and 3 have prepared a forged Will and the same was registered on 20.09.2005, thereafter they moved an application for mutation before the Tahsildar who has allowed the said mutation proceedings by recording forged evidence of applicant No. 2 and 3, thus they have committed criminal conspiracy and also committed the offence of forgery in the document and have taken valuable property, as such they have committed the offence under Sections 420, 467, 468 and 471 of the IPC. It is also case of the complainant that their father expired on 06.08.99 whereas the Will has been registered on 20.09.2005 which creates doubt over the existence of the Will. It has also been alleged that forged signature of the complaint was recorded in the records.
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3. The complainant was examined before Judicial Magistrate First Class on 27.08.2018 wherein she has reiterated the same stand taken in the complaint and thereafter witnesses Bajranglal Yadav and Shrawan Kumar Sharma have been examined before the Magistrate. Accordingly, the offence was registered against the petitioners. The petitioners have preferred registration of complaint by filing the present CrMP.
4. Respondent No. 1 has filed reply denying the allegation made in the petition and would pray for dismissal of the present petition.
5. Learned Counsel for the petitioners would submit that complainant on similar set of facts has already filed in Civil Suit for declaration and injunction before Second Additional District Judge, Janjgir with regard to same suit property contending that mutation is bad in law on the basis of forged execution of Will but said suit was dismissed by the trial Court on 03.02.2022 in Civil Suit No. 90-A/2016. Copy of the judgment and decree was also filed by the petitioner as Annexure P/16. He would further submit that against the said judgment and decree the appeal is pending before this court. He would further submit that on similar set of facts a civil suit has been dismissed and continuation of criminal proceedings is nothing but an abuse process of law in fact the civil dispute has been given shape of criminal proceedings which has been time and again deprecated by the Hon'ble Supreme Court in various judgments to quash the criminal proceedings. To substantiate his submission, he has referred to the judgments of Hon'ble Supreme Court in the cases of Paramjeet Batra vs. State of Uttarakhand and others (2013) 11 SCC 673, Govind Prasad Kejriwal vs. State of Bihar and others in CRA No. 168 of 2020 decided 4 / 10 on 31.01.2020 and in the case of M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd. And Ors AIR 2006 SC 2780 and would pray for quashing of the entire proceedings.
6. I have heard learned counsel for the petitioners and perused the record.
7. From the contention raised by the parties before this Court the issue raised for consideration before this Court is whether continuation of criminal proceedings where the civil dispute is involved is legal and justified. This particular issue has remained bone of contention in various judgments of Hon'ble Supreme Court wherein the Hon'ble Supreme Court has held that in a civil dispute the continuation of criminal proceedings cannot be always abuse of process and it is dependable upon the fact and circumstance of each case and no uniform policy can be framed. This issue has come up for consideration before Hon'ble Supreme Court in the cases of M.Krishnan vs. Vijay Singh and another 2001 (8) SCC 645, Kamaladevi Agrawal vs. State of W.B. and others 2002(1) SCC 555, Iqbal Singh Marwah and another vs. Meenakshi Marwah and anthers 2005(4) SCC 370, P. Swaroopa Rani v. M. Hari Narayan Alias Hari Babu 2008(5) SCC 765, Syed Askari Hazi Ali Augustine Imam and another vs. State (Delhi Administration) and another 2009 (5) SCC 528,
8. The Hon'ble Supreme Court in the case of M. Krishnan (supra) has held as under as under:-
5. Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the 5 / 10 aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe :
"In my view, unless and until the civil court decides the question whether the document are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous."
6. Where factual foundations for the offence have been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties.
9. Right from the case of R.P. Kapur v. State of Punjab, AIR (1960) SC 866, this Court has held that revisional or inherent powers for quashing the proceedings at the initial stage can be exercised only where the allegations made in the complaint or the first information report, even if taken at their face value and accepted in their entirety, do not prima facie disclose the commission of an offence or where the uncontroverted allegations made in the FIR or complaint and the evidence relied in support of the same do not disclose the commission of any offence against the accused, or the allegations are so absurd and inherently improper that on the basis of which no prudent person could have reached a just conclusion that there were sufficient grounds in proceeding against the accused or where there is an express legal bar engrafted in any provisions of the Code or any other statute to the institution and continuance of the criminal proceedings or where a criminal proceeding is manifestly actuated with malafide and has been initiated maliciously with the ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.
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9. Again the Hon'ble Supreme Court has held as under in case of P. Swaroopa Rani (supra) has held as under in paragraph 11,12 and 13:-
11. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the 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 Institute of Chartered Accountants of India v.
Assn. of Chartered Certified Accountants (2005) 12 SCC 226
12. 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 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 7 / 10 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 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."
13. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute.
10. Again the Hon'ble Supreme Court in the case of Syed Askari Hazi Ali Augustine Imam (Supra) has held as under:-
21. Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case. The question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case.
24. If primacy is to be given to a criminal proceeding, indisputably, the civil suit must be determined on its own merit, keeping in view the evidences brought before it and not in terms of the evidence brought in the criminal proceeding.8 / 10
The question came up for consideration in K. G. Premshankar v. Inspector of Police, and anr. [(2002) 8 SCC 87], wherein this Court inter alia held:
"30. What emerges from the aforesaid discussion is -- (1) the previous judgment which is final can be relied upon as provided under section40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Section 40 and 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.
31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under section 40 and 43 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear.
Hence, in each and every case, the first question which would require consideration is -- whether judgment, order or decree is relevant, if relevant -- its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case."
25. It is, however, significant to notice that the decision of this Court in M/s Karam Chand Ganga Prasad & anr. etc. vs. Union of India & ors. [(1970) 3 SCC 694], wherein it was categorically held that the decisions of the civil courts will be binding on the criminal courts but the converse is not true, was overruled, stating:
"33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the 9 / 10 finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above.
The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case as well as Sections 40 to 43 of the Evidence Act."
Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court.
11. The learned counsel for the petitioner has referred to the judgment of Hon'ble Supreme Court in the case of Param Jeet Batra (supra) is distinguishable on the fact that the complainant in this case has alleged that there was agreement of rent with regard to shop and for which a civil suit claiming tenancy was filed wherein he has not given account of the profit and have submitted false document in the Court. In that situation the Hon'ble Supreme Court has held that the complaint was filed before the Court disclosing the civil transaction whereas in the present case the complainant as well as witnesses have placed on record before the trial Court that on the basis of forged Will they have prepared the documents. The witnesses so examined before registration of the complaint have also stated that she is well aware of her father's signature and she has also stated that in mutation registration for the year 1991 the signature of her father is there which is correct and in the Will the signature mentioned is forged one and her father has never given any consent for this purpose and the accused executed for Will. The other witnesses namely Bajranlal Yadav has also stated that accused No. 1 assaulted him and for that he has lodged the report also and stated that Dhiraj Prasad was suffering from 10 / 10 illness and because of illness he expired. He has also stated that when he had gone to meet him, he was unable to identify any body and other witnesses have also reiterated the same thing.
12. Learned counsel for the petitioners has further relied upon the judgment of Hon'ble Supreme Court in the case of Govind Prasad Kejriwal (supra) and same is also distinguishable as in that case a civil suit for title was filed by the complainant against the firm and its partners which was dismissed and against that an appeal was preferred which was withdrawn by the said Ramesh Kumar. In such circumstance, the Hon'ble Supreme Court has held that continuation of proceedings will be nothing but an abuse process of law whereas in the present case the fabrication of document has been alleged and though the suit has been dismissed but the appeal against the impugned order is pending before this court.
13. Applying the well settled legal position of law and the facts of the present case, the evidence adduced before registration of complaint, it cannot be said that the complaint filed by the respondent did not disclose the commission of an offence or there existed any other circumstance which can be made the basis for quashing the proceedings. In fact allegations made in the complaint required adjudication and the complaint could not be aborted in the manner which has been sought by the petitioners by filing the present CrMP, I do not find any illegality in the impugned order which warrants interference by this Court. Accordingly, the CrMP is dismissed.
Sd/-
(Narendra Kumar Vyas) Judge Santosh