Madhya Pradesh High Court
Dr. (Mrs.) Neena V. Patel vs Mrs. Jyotsnaben P. Patel on 16 May, 2017
1 MCRC 4662/2016
HIGH COURT OF MADHYA PRADESH AT JABALPUR
M.Cr.C No. 4662/2016
Dr. (Mrs.) Neena V.Patel & Anr.
Vs.
Mrs. Jyotsnaben P.Patel & Ors.
[Single Bench : Hon'ble Smt. Anjuli Palo, Judge]
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Shri Madhav Khurana, learned counsel with Shri Nikhil Tiwary,
Counsel and Shri Pranaya Goyal, counsel for the Petitioners.
Shri Som Mishra, learned counsel for Respondent No. 1, 2 and 4.
Shri Jagat Singh Choubey, learned counsel for Respondent No. 3.
Shri H.S.Ruprah, learned Sr. Advocate with Shri Pankaj Dubey,
learned counsel for Respondent No. 5.
Shri Ramesh Kushwah, Panel Lawyer for the Respondent No. 6 / State.
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ORDER
(16/05/2017)
1. This application under Section 482 of Code of Criminal Procedure, 1973 has been filed for setting aside the order dated 09.10.2015, passed by the II Additional Session Judge, Jabalpur, in complaint case No. 281/2012, wherein four applications presented by the State of Madhya Pradesh on behalf of the Petitioners / complainants under Section 91 read with Section 311 of Cr.P.C., seeking production of documents, have been dismissed.
2. It is not in dispute that the Petitioner No. 1 is the eldest 2 MCRC 4662/2016 daughter of the deceased Parmanand Bhai Patel and Petitioner No. 2 is son of the Petitioner No. 1. Respondent No. 1 is the wife of deceased and mother of Petitioner No. 1 and Respondent No. 2 to
4. Respondent No. 5 is the Sub-Registrar Collectorate, Jabalpur.
3. The Petitioners' case in brief is that they filed a complaint case under Sections 120-B, 420, 465, 466, 467, 468, 471, 472, 473, 474 and 477 read with Section 34 of Indian Penal Code against the respondent no. 1 to 5. It is claimed by the Petitioners that during his lifetime Parmanand Bhai Patel had expressed his desire that Petitioner No. 1 and Siddharth K. Patel are to be in the joint control of his business and look after the business after his death. As per the Petitioners, the deceased Parmanand Bhai Patel was in favour of bequeathing his remaining wealth and assets to Petitioner No. 1 and Siddharth Patel. He did not want his wife / Respondent No. 1 to be the main beneficiary to his bequest. Therefore, the deceased Parmanand Bhai Patel had drawn up a "Will" dated 28.10.1986 and a Codicil dated 07.11.1986 in favour of Petitioner No. 1 and son Siddharth Patel. Thereafter, Respondent No. 1 to 5 took advantage of his sickness and incapacity and conspired with each other to get prepared a second "Will" dated 23.12.1991 in their favour. Deceased Parmanand Bhai Patel died on 15.05.2005. Thereafter, Petitioner No. 1 made enquiries with respect to the distribution of wealth and estate of 3 MCRC 4662/2016 the deceased in accordance with "Will" dated 28.10.1986 and Codicil dated 07.11.1986. Then, the Petitioner No. 1 came to know about the second "Will" dated 23.12.1991. The Forensic Examiner reported that the signature on the purported "Will" dated 23.12.1991 was not of the deceased.
4. The Petitioners contended that Respondent No. 1 to 5 acted with common and malafide intention to prepare the forged "Will". The Petitioners filed the complaint case under Sections 120-B, 420, 465, 466, 467, 468, 471, 472, 473, 474 and 477 read with Section 34 of Indian Penal Code.
5. After, inquiry under Section 200 and 202 of Cr.P.C, the Judicial Magistrate registered the complaint under Sections 120-B, 420, 465, 466, 467, 468, 471, 472, 473, 474 and 477 of Indian Penal Code. The complaint case was committed to the Court of II ASJ, Jabalpur under the order dated 07.05.2014. Four applications under Section 91 read with Section 311 of Code of Criminal Procedure (Annexures-14 to 17) have been filed by the special prosecutor for production of the documents which the Trial Court dismissed by the order impugned.
6. Learned Trial Court while passing a detailed order held that the documents which were required by the Petitioners are not necessary to be produced as per provision of Section 91 of Cr.P.C and principle laid down by Hon'ble Supreme Court in case of 4 MCRC 4662/2016 State of Orissa Vs. Devendra Nath [2005 (1) SCC 568] . The learned Trial Court also found that, the aforesaid documents are not listed in the complaint not producing before the JMFC, before committal of the case. Hence, the same was not considered by the learned JMFC under Section 208 and 209 of Cr.P.C. Learned Trial Court held that at the time of framing charges only those documents have been considered which were listed with the complaint and narrated in the complaint. The Court has refused to collect the evidence, particularly, in respect of those documents which were specified in Annexure-14 to 17. Therefore, the learned Trial Court while passing the impugned order, dismissed the applications (Annexure-14 to 17).
7. The Petitioners challenged the aforesaid order on the grounds that the Trial Court has assumed that the said applications were filed by the original complainants. It is claimed by the Petitioners that ample prima facie evidence of forgery and criminal act committed by the Respondents No. 1 to 5 was given by the Petitioners. Nowhere production of the documents have been sought which are not only relevant but crucial for consideration of how the Respondents No. 1 to 4 misappropriated the wealth of deceased. As per the Petitioners, the learned Trial Court failed to appreciate the provisions of Section 91 and 311 of Cr.P.C, On the above grounds, the Petitioners prayed to set aside 5 MCRC 4662/2016 the impugned order.
8. Heard learned counsel for bot h the parties at length. Perused the record.
9. Learned counsel for the Respondents vehemently opposed the contentions raised by the learned counsel for the appellants.
10. From the contentions of this petition, it is crystal clear that there is a dispute between the parties in respect of two Wills - one was executed by Late Shri Parmanandbhai Patel in favour of Petitioner No. 1 (daughter) on 28.10.1986 and Codicil dated 07.11.1986 and second Will dated 23.12.1991 executed in favour of Petitioner No. 1 / wife of the deceased Parmanandbhai Patel.
11. As per the Petitioners, the documents are material to analyse the income and patterns of rise in the income of Respondents No. 1 to 4 from the period between 1991 to 2013. It is apparent that with the help of Sections 91 and 311 of Cr.P.C., the Petitioners actually want to collect the evidence, the details of the properties various transactions and accounts of the deceased which are not related with the complaint Annexure A/3. Therefore, no details, no bank account numbers have been mentioned in the aforesaid application for production of the documents.
12. Aforesaid documents are not listed in Para 30 of the complaint for which the complainants / Petitioners have placed 6 MCRC 4662/2016 reliance. It is very important to note that in the complaint (Annexure A/3) no averments have been mentioned with regard to the aforesaid documents.
Section 91(3) of Cr.P.C. specifically describes that :-
(3) Nothing in the Section (91) shall be deemed to - effect the Banker's Books Evidence Act 1981.
13. Following documents are required by the Petitioners as shown in paragraph 5.31(ii) to 5.31(vii) of the applications under Section 91 of Cr.P.C.
(i) Details of the bank accounts of the deceased.
(ii) Statement of the bank accounts for the year 1991 to 2014 of the deceased.
(iii) Details of the lockers of the deceased.
(iv) Records of the operations of the lockers for the year 1991 till 2014 of the deceased.
(v) Income tax returns of the deceased for the financial years 01.04.1991 to 31.03.2014 along with all annexures.
(vi) Voluntary Disclosure of Income Scheme (VDIS) along with all annexures made by the deceased and other legal heirs of the deceased.
(vii) Wealth tax returns for the financial years 01.04.1991 to 31.03.2014 along with all annexures.
14. Documents relating to various bank accounts of the deceased Shri Parmanandbhai Patel which is required / or indicated in Annexure 14 in para 7(a) to 7(cc) - not to be summoned because those documents comes under the category of privileged 7 MCRC 4662/2016 documents. Similarly details / records of the operation of lockers of the deceased are also not related with the averments made in the complaints. As such documents or particulars are not covered under Section 91 of Cr.P.C.
15. Through Annexure-15, the Petitioners want to know the details of Income Tax Returns of the deceased on the ground that Accused/ Respondent No. 1 after 1994 has transferred cash / moveable and immovable properties illegally in her name and then onwards transferred the same to Accused No. 1 to 4 and others. Such transfers have also not been specified by the Petitioners.
16. Therefore, it seems that to ascertain correct position of the wealth of the deceased, the Petitioners want to summon to produce the income tax returns of the deceased for various years. Similarly, the wealth tax returns are not essential to be summoned by the Court as shown required in Annexure-15 and 16, by the Petitioners.
17. In Annexure-17 the complainants require the following documents-
(i) Shareholding pattern of M/s Mohanlal Hargovinddas from the year 1991 to 2014.
(ii) Partnership Deeds of M/s Mohanlal Hargovinddas since 1991 to 2014.
(iii) Share Transfer Register with respect to the Mohanlal Hargovinddas Group Companies till date.
8 MCRC 4662/2016
(iv) Annual Returns of the Mohanlal Hargovinddas Group Companies filed with the Registrar of Companues till date.
(v) Balance Sheets of the Mohanlal Hargovinddas Group Companies.
18. For exercising the powers under Section 91 of Cr.P.C., before issuing the summons, the Court must be satisfied on proper materials that the documents or things called for are desirable or necessary for the just decision of the case.
"Necessary or desirable means that the documents or thing must-
(a) have some relation to the subject matter of investigation or
(b) throw some light on the proceedings or some link in the chain of evidence."
19. In the present case complaint has been filed alleging commission of offences under Section 120B, 420, 465, 466, 467, 468, 471, 472, 473, 474, 477 read with Section 34 of IPC related with the execution of 'Will' dated 23.12.1991 claiming it to be forged. It is to be determined that the allegations of the complaint (Annexure A/3) above mentioned offences have been made out or not?
20. This petition is filed under Section 482 of Cr.P.C. Inherent jurisdiction of this Court though wide but it has to be exercised sparingly, carefully and with caution and only when it is justified. This Court is not satisfied with the contentions of the petitioner 9 MCRC 4662/2016 that the required documents are desirable or necessary for the just decision of the case.
21. Accordingly, the petition stands dismissed.
(Smt. Anjuli Palo) Judge vidya