Delhi District Court
Navneet Thareja vs State Of Nct Of Delhi on 10 January, 2018
IN THE COURT OF SH. SANJIV JAIN:ADDL. SESSIONS
JUDGE /SPECIAL JUDGE: CBI03 (PC ACT) SOUTH DISTRICT:
SAKET COURTS: NEW DELHI
(I)
Criminal Revision No. 53/2017 (359/2017)
CNR No. DLST010081572017
Navneet Thareja
S/o late Sh. Lekh Raj Thareja
R/o 970, Old Palace,
Dr. Alpharetta, GA 30004
U.S.A ....... Revisionist
Vs.
1. State of NCT of Delhi.
2. Naren Mehta
R/o Y75, Hauz Khas,
New Delhi. .... Respondents
Date of filing of revision : 16.10.2017
Date of allocation : 17.10.2017
Arguments concluded on : 28.11.2017
Date of order : 10.01.2018
(II)
Criminal Revision No. 59/2017 (364/2017)
CNR No. DLST010082232017
1. Sh. Anil Rakheja
S/o (late) Sh. Madan Lal Rakheja
R/o A93, Sector52,
NOIDA (U.P.)
CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 1/26
2. Smt. Ritu Rakheja
W/o Sh. Anil Rakheja
D/o (Late) Sh. P.D. Mehta
R/o A93, Sector52,
NOIDA (U.P.) ..... Revisionists
Vs.
1. State (NCT of Delhi)
2. Narendra Mehta
S/o (late) P.D. Mehta
R/o Y75, First Floor,
Hauz Khas, New Delhi 110 016. .... Respondents
Date of filing of revision : 23.10.2017
Date of allocation : 24.10.2017
Arguments concluded on : 28.11.2017
Date of order : 10.01.2018
Revision Petitions u/s 397 CrPC against the impugned order
dated 26.09.2017 passed by Ld.MM03, South Saket Courts,
New Delhi in FIR No. 441/13 Police Station Hauz Khas in case
titled as 'State vs. Anil Rakheja & Ors'.
ORDER
1. By this common order, I shall dispose of two revision petitions u/s 397 of Code of Criminal Procedure filed against the order dated 26.09.2017 passed by the ld. M.M 03, South District, Saket whereby the charge was framed CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 2/26 against the petitioners/accused persons for the offences punishable u/s 120B and 467 /471 r/w section 120B IPC in the case FIR No. 441/13 registered at the police station Hauz Khas, New Delhi.
2. The facts relevant for the disposal of the petitions are that the case vide FIR No. 441/13 was registered on the complaint of Naren Mehta @ Narendra Mehta and Karuna Makkar against Ritu Rakheja, Anil Rakheja, Shashi Thareja, Navneet Thareja, Anil Rastogi and Jugal Kishore Gupta. As per the complaint, late Prabhu Dayal Mehta was married to late Smt. Sumitra. From this wedlock, four children were born, namely, Ritu Rakheja, Naren Mehta @ Narendra Mehta, Karuna Makkar and Shashi Thareja. Prabhu Dayal Mehta died on 14.11.2011. He was the owner of the property bearing no. Y75, Hauz Khas, New Delhi. He had executed a registered Will dated 06.12.1991 bequeathing his property in favour of his wife Smt. Sumitra Mehta and after her death to his son Narendra Mehta @ Naren Mehta. Subsequently, he executed another Will dated 29.11.2005 whereby he bequeathed the aforesaid property in the name of Narendra Mehta @ Naren Mehta. Smt. Sumitra Mehta predeceased him.
3. It was alleged that Smt. Shashi Thareja started creating dispute and claimed right in the aforesaid property. Both Smt. Ritu Rakheja and Smt. Shashi Thareja acted jointly, CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 3/26 however, Smt. Ritu Thareja alone filed a suit for partition in the High Court vide CS(OS) No. 402/2012 claiming that late Sh. Prabhu Dayal Mehta died interstate. She claimed 1/4th share in the aforesaid property as well as other assets left by him and made Narendra Mehta @ Naren Mehta and Smt. Shashi Thareja as defendants. The complainant/defendant Narendra Mehta filed the written statement submitting interalia that late Prabhu Dayal Mehta during his lifetime had executed his last Will dated 29.11.2005. Smt. Shashi Thareja also filed her written statement claiming that late Prabhu Dayal Mehta had executed a Will dated 18.01.2011 (filed a photocopy of the Will taking a plea that the original of the Will is with Narendra Mehta @ Naren Mehta) by virtue of which he had bequeathed the property in equal shares amongst all the legal heirs.
4. According to the complainant, late Prabhu Dayal Mehta never executed any Will dated 18.01.2011 and it was a false and fabricated document. It was alleged that Smt. Ritu Rakheja, Smt. Shashi Thareja alongwith their husbands and attesting witnesses, namely, Anil Rastogi and Jugal Kishore Gupta committed the offences of forgery and cheating by creating a false Will dated 18.01.2011. It was alleged that late Prabhu Dayal Mehta was an educated man and he knew the intricacies of law. He had executed the two Wills CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 4/26 dated 06.12.1991 and 29.11.2005 duly registered with the SubRegistrar, New Delhi. The alleged unregistered will dated 18.01.2011 does not find mention of the above registered Wills. It was alleged that the Will dated 18.01.2011 clearly shows the name 'Narendera Mehta' which her husband Anil Rakheja used to misspell and the letter dated 26.11.2011 written to the MCD appeared to be in the handwriting of Anil Rakheja. It was alleged that the Will dated 18.01.2011 was forged by Smt. Shashi Thareja alongwith her husband Navneet Thareja in connivance with Smt. Ritu Rakheja and her husband Anil Rakheja as executor of the alleged Will dated 18.01.2011 by forging and fabricating the signature of late Prabhu Dayal Mehta with a view to claim right in the property.
5. Hand writing expert opinion was sought on the Will dated 18.01.2011 and it was opined that the signature of the original document, photocopy of which contains signature marked X1 ( Refer Para 21 of this order), has been lifted and transplanted on to the disputed Will at two places marked Q1 and Q2 through multiple photocopying process. It was opined that questioned photocopied Will is not a genuine document but is forged and fabricated.
6. Jugal Kishore Gupta and Anil Rastogi were interrogated.
Jugal Kishore revealed that he does not know any person by CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 5/26 the name of Prabhu Dayal Mehta. Anil Rastogi did not give any satisfactory reply in respect of his signatures on the alleged Will.
7. The documents were also sent to the FSL Rohini from where it was opined that it is not possible to express any definite opinion regarding authorship of the questioned signatures in the absence of their originals. However, as per the principle of handwriting(signatures) identification, no two signatures of the same person can be exactly alike and identical in respect of size, dimensions and relative locations of corresponding characters. Natural variations are bound to occur in any of the two genuine signatures of the same person. If two signatures found exactly alike and identical in size, dimensions and relative locations of characters and also superimposing over each other, then there is an indication regarding forged nature of the document/s.
8. After investigation, the chargesheet was filed against all the accused persons including the petitioners/revisionists herein for the offences punishable u/s 467/468/471/120B IPC.
9. Vide impugned order, the charge was framed against the revisionists.
10. Revisionist Navneet Thareja assailed the impugned order on the ground that the written statement was filed by the sister CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 6/26 of the complainant / wife of the revisionist to which revisionist was never a party; that the avements made in the complaint do not fulfill the ingredients required for the commission of the above offences qua the revisionist; that the dispute is between the complainant and his sister and he has been falsely roped in for creating pressure and harassment; that the purported Will dated 18.01.2011 was filed by Smt. Shashi Thareja alongwith her written statement and not by the revisionist and there is no evidence whatsoever to establish the conspiracy qua the revisionist.
11. Revisionists Anil Rakheja and Ritu Rakheja assailed the order on the ground that there are no specific allegations against the revisionists and the allegations levelled against them are nothing but figment of imagination on the part of the complainant; that no definite opinion has come from the FSL as to the alleged forgery; that the revisionist no. 2 never relied on any Will but has only sought partition on the basis of her being a classI legal heir of late Prabhu Dayal Mehta. The copy of the alleged forged Will was filed by the other accused namely Smt. Shashi Thareja in the written statement and the revisionists cannot be made responsible for the alleged forgery.
12. I have heard the arguments advanced by ld. Counsel Sh.
Ajay Bhandari for the revisionists Anil Rakheja and Ors and CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 7/26 Sh. Sahil Mongia ld. Counsel for the revisionist Navneet Thareja and Sh. Sanjeev Behl ld. Counsel for the respondent/complainant and ld. Addl. PP for the State. I have also heard IO SI Harveer Singh.
13. Before adverting on the merits of the case, it is relevant to reproduce some extracts of the written statement filed by Smt. Shashi Thareja in CS (OS) 402 of 2012:
Para no. 1 That at the outset it is submitted that late Shri P.D. Mehta father of the parties did not die intestate but had made a Will dated 18.01.2011 whereby he bequeathed all his movable and immovable properties in four equal shares to be divided between his three daughters and one son namely the present parties.
Para no. 2 That Late Sh. P.D. Mehta in the last years of his life severed his relations with defendants No. 1 and 2 as he felt that defendants no. 1 and 2 were after his money. Sh. P.D. Mehta was highly apprehensive of his son defendant no. 1. The defendant no. 1 resides at the first floor of property No. Y75, Hauz Khas and Shri P.D. Mehta used to reside at the ground floor of the suit property. Both of them were not on talking terms. Sh. P.D. Mehta never went to the first floor of the suit property as he was apprehensive that his son may even kill him. He constantly kept yelling and telling immediate and extended family members - how Defendants no. 1 & 2 have been milking/looting him on one pretext or the other until his last breath. A few years before his death in (20072008) he had provided Rs. 10 lakhs to defendants no. 1 and 2 - to facilitate release of CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 8/26 Mr. Ajay Makker - husband of defendant no. 2 from Dubai Jail, where he was imprisoned for illegal and fraudulent financial activities. This was in addition to Rs. 12.5 lakhs that Mr. HC Makker - father of Mr. Ajay Makker provided. All this money was handed over to Defendant no. 1 who never accounted for the same.
Para no. 4 That defendant no. 3 and her family is permanently settled in USA. Late Shri P.D. Mehta very much wanted defendant No. 3 and her family to shift to India and be with him. With this in view late Shri P.D. Mehta persuaded defendant No. 3 and her husband to come to India and talk to him in this regard. Accordingly in January 2010, defendant no. 3 came to India and remained with late Shri P.D. Mehta for two days when he had explained in detail the tortuous and inimical conduct of his son defendant no. 1 towards him and how he was apprehensive that if he took food from defendant no. 1, he may be poisoned and done to death. He almost begged defendant no. 3 and her husband to come and stay with him. He even wrote down on a piece of paper that he would transfer property No. Y75, G.F., Hauz Khas in their name and he will even vacate the said house. During that visit defendant no. 3 was staying with the plaintiff and Mr. PD Mehta wrote that piece of paper in plaintiff's house in NOIDA, in presence of the plaintiff and her husband. The said writing of late Shri P.D. Mehta is reproduced hereunder:
"If Navneet/Shashi come back to India, Y 75, G.F., I will officially transfer on their name and I will vacate my self.
If they help me with them I will pay them Rs. 10,000/ p.m. Sd/ P.D. Mehta"
CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 9/26 Para 5 That during her earlier visit to India in January 2011, Mr. P.D. Mehta also separately called defendant no. 3 to meet with him on January 30th, 2011 at Evergreen Restaurant in Green Park and handed over the photocopy of the Will. He also showed the original document and stated that he is safekeeping it in his safe and would prefer to amicably resolve/distribute the assets during his lifetime - stressing on his request for defendant no. 3 and her husband Mr. Navneet Thareja to move back to India - at least till he is alive, as soon as possible.
Para no. 10 That when Mr. Navneet Thareja visited India in November 2011, to attend the last rites of Mr. P.D. Mehta, he called both defendants no. 1 and 2 and expressed his desire to have a meeting soon to relay the last wishes of Late Sh. P.D. Mehta.
Para No. 11That Mr. Navneet Thareja also called and requested Mr. Madan Mehta 1st cousin of the parties to be present. The presence of Mr. Madan Mehta was also desired and verbally communicated to Mr. Navneet Thareja by Late Sh. PD Mehta in May 2011 when Late Sh. PD Mehta handed over the copy of the will to Mr. Navneet Thareja. Mr. Navneet Thareja communicated this information to all the parties mentioned above on November 25 th, 2011 so that the situation can be handled amicably and with peace and harmony. Mr. Madan Mehta was flying to Mumbai next morning and he authorized his wife Mrs. Suman Mehta to be present and represent him. All were set to meet the next day and when Mr. navneet Thareja called defendant no. 1 and to confirm the timings and CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 10/26 the venue, both the defendants No. 1 & 2 intentionally did not pick up the phone and avoided the meeting. Mr. Navneet Thareja called them both several times, but could not get to talk to them again. He was able to reach defendant no. 2 late in the night and she rudely stated that she will discuss the intention of the meeting with her husband - Mr. Ajay Makker and let him know
- if they are interested. Next Morning, Mrs. Suman Mehta also called Mr. Navneet Thareja and expressed her inability to attend the meeting as she did not want to get involved being the daughterinlaw of the family. Mr. Navneet Thareja then called Mr. Madan Mehta who had reached Mumbai and talked to him on the phone for more than an hour and narrated / relayed all the information to him as per the last will of Late Sh. PD Mehta regarding distribution of Mr. Mehta's assets after his death. Mr. Madan Mehta very patiently and politely heard everything. He also stated and confirmed that the plaintiff, also approached defendant no. 1 asking for her 1/4th share, on the 4th day after Mr. PD Mehta left for heavenly abode, in front of him and the entire family/Biradiri. Mr. Madan Mehta also stated that Mr. Narendra Mehta also stated that Mr. Narendra Mehta (defendant no. 1) assured the plaintiff, that all the division of assets will be distributed amicably on the 13 th day Braham Bhoj Ceremony right after the last rites are performed. When the plaintiff and Mr. Navneet Thareja reached Hauz Khas to attend the last rites on November 27th, 2011 defendant no. 1 had put locks on the house Y75, Hauz Khas and hired a security guard. Both Mr. Navneet Thareja and plaintiff's family were denied entry into the house. The last rites ceremony was performed in a temple 100 feet away.
Para no. 12 That during a telephone conversation in mid July, CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 11/26 2011, Mr. PD Mehta confirmed that he had started the conversation with defendant no. 1 regarding his intentions of dividing the property. He also complained that defendant no. 1 was very wild, abusive and arrogant to him.
Para No. 13That Mr. Navneet Thareja husband of defendant n. 3 had last met Shri P.D. Mehta on May 20 th 2011 at Navneet Thareja's brother's apartment in Dwarka, where his parents were living at that time. Mr. Navneet Thareja's friend Pankaj Agrawal who lives in East of Kailash drove him to Dwarka at the request of Mr. Navneet Thareja.
Para No. 14That Mr. P.D. Mehta, as usual, kept complaining about his family - especially defendants no. 1 and 2 about various things mostly repeating, as he had done many times before on the phone with defendant no. 3 and her husband and others in the family. He kept bleeding in pain as many times before complaining - how he is so lonely and literally Mohtaj for 2 chapaatis for lunch/dinner. On top of it - he has to do other household chores at this age by himself and cried that he got nothing in return for doing so much for his kinds and family. He then handed over the copy of his last Will dated Jan 18th 2011 to Mr. Navneet Thareja and requested him to come back to India and both of them had discussions on possible options."
14. In the suit filed by Smt. Ritu Rakheja for rendition of accounts, partition and possession, prohibitory injunction and recovery vide CS (OS) no. 402 of 2012, she had CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 12/26 claimed that her father Prabhu Dayal Mehta died interstate leaving behind the property bearing no. Y75, Hauz Khas, New Delhi. She has claimed 1/4th share in the property being one of his legal heir amongst four legal heirs. In the said suit, she did not mention anything about the Will dated 06.12.1991 or the Will dated 29.11.2005 which according to the complainant/defendant no.1 (Naren Mehta @ Narendra Mehta), Prabhu Dayal Mehta had executed in his favour bequeathing the property in his name. The said suit also does not find mention of the alleged Will dated 18.01.2011 photocopy of which was filed by defendant no. 3 (Smt. Shashi Thareja). She nowhere stated in the suit that her husband Anil Rakheja was made executor of the Will dated 18.01.2011.
15. It is pertinent to mention that the original of the alleged photocopy of the Will dated 18.01.2011 was never produced in the Court or during the investigation of the case. According to defendant no. 3, the original of it is with defendant no. 1 but defendant no. 1 denied the execution or the alleged Will dated 18.01.2011.
16. Question arises when the property was to be distributed amongst all the legal heirs as stated in the alleged Will dated 18.01.2011, what was the necessity for making the Will dated 18.01.2011?
17. The petitioner /revisionist Anil Rakheja has denied the CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 13/26 execution of any Will or making him the executor of the Will dated 18.01.2011. It is true that the said Will finds the name of defendant no. 1 as 'Narendera Mehta' instead of 'Narendra Mehta' which defendant no. 1 used to spell and the same name also appeared in the letter written by Smt. Ritu Rakheja to the MCD but from this very fact, no inference can be drawn that Anil Rakheja, the husband of Ritu Rakheja, was party to the making of the alleged forged Will as no document in this respect was recovered from his possession or at his instance. Had Anil Rakheja or Smt. Ritu Rakheja been aware of alleged Will dated 18.01.2011, Smt. Ritu Rakheja would not have mentioned in the suit that her father late Prabhu Dayal Mehta died intestate. Even the letter written to the MCD by Ritu Rakheja does not find mention of the alleged Will dated 18.01.2011. Further, the alleged Will does not bear the signature of Anil Rakheja at any point. The FSL report is not conclusive as there is no definite opinion as to who had signed as Prabhu Dayal Mehta on the alleged Will dated 18.01.2011.
18. It is well settled law that for framing the charge, there must be strong suspicion as to the involvement of the accused and the charge cannot be framed merely on suspicion or surmises and conjectures. The Court cannot be the mouthpiece of the prosecution. The law as to the framing of CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 14/26 the charge has been clearly defined in the case of Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4. The Supreme Court laid broad contours on the point of framing of charge. The same are reproduced as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 15/26 Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
19. For the aforesaid discussions, prima facie no case is made out against the revisionists Anil Rakheja and Ritu Rakheja.
20. Now coming to the role of the accused Navneet Thareja, the written statement was filed by his wife Smt. Shashi Thareja wherein she has alleged that late Prabhu Dayal Mehta did not die intestate but had made a Will dated 18.01.2011 bequeathing all his properties in four equal shares to be divided among three daughters and one son. She also alleged that late Prabhu Dayal Mehta in the last years of his life severed his relations from defendant no. 1 and 2 (Naren Mehta @ Narendera Mehta and Karuna Makkar) as he felt that they were after his money. She with her family is permanently settled in USA. Late Prabhu Dayal Mehta wanted her and her family to shift in India and be with him. He persuaded her and her husband to come to India. Accordingly, in January, 2011, she came to India and remained with late Prabhu Dayal Mehta for two days. Prabhu Dayal Mehta explained her in detail the torturous conduct of defendant no. 1 towards him. He begged her and husband to come and stay with him. He even wrote down on a piece of paper that he would transfer the property no.
CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 16/26 Y75, Ground floor, Hauz Khas, New Delhi in their name and he will even vacate the house. During her earlier visit to India in January, 2011, Prabhu Dayal Mehta separately called her to meet him on 30.01.2011 at Evergreen Restaurant in Green Park and handed over the photocopy of the Will. He also showed the original document and stated that he is safe keeping it. Even her mother had expressed her wish to equally distribute the assets in favour of all of them. She alleged that the defendant no. 1 did not care to inform her about the death of Prabhu Dayal Mehta and when Navneet Thareja visited India in November, 2011 to attend his last rites, he called both defendant no. 1 and 2 and expressed his desire to have a meeting to relay the last wishes of late Prabhu Dayal Mehta. He verbally communicated that in May, 2011, late Prabhu Dayal Mehta had handed over him the copy of the Will. She also approached defendant no. 1 asking her 1/4th share.
21. In the written statement, she has specifically mentioned about the alleged Will dated 18.01.2011 and the talks between she, her husband and the deceased late Prabhu Dayal Mehta about making of the Will dated 18./01.2011. According to her, Prabhu Dayal Mehta had given in writing as under:
"If Navneet/Shashi come back to India, Y75, G.F., I will officially transfer on their name and CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 17/26 I will vacate my self.
If they help me with them I will pay them Rs. 10,000/ p.m. Sd/ P.D. Mehta" .....(X1)
22. The said writing bears the signatures of late Prabhu Dayal Mehta. The signature of Prabhu Dayal Mehta appearing on the said writing appears to be similar on the alleged Will. As per the FSL report, there cannot be two identical signature of a person but the alleged Will appears to have the same identical signature of a person.
23. It is true that there is no definite opinion as to who had signed for Prabhu Dayal Mehta in the absence of originals of the contemporary period but it cannot be lost sight of the fact that there cannot be two identical signature of the same person on a document. From the facts & circumstances, it can be prima facie inferred that Navneet Thareja and Shashi Thareja were party to the making of the said document/alleged Will dated 18.01.2011 and it cannot be said that Navneet Thareja was not at all connected with the said document. The documents and the investigation reveal their involvement.
24. It was argued by ld. Counsel for the revisionist Navneet Thareja that the Civil Suit has not been disposed of and it is too early to state that the alleged Will is a forged and CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 18/26 fabricated document. Even the said document was filed during the proceedings of the Court and in the absence of complaint from the Court, no cognizance of the offence can be taken against the revisionists/accused persons. In support of his contentions, Ld counsel placed reliance on the case of Shashi Lata Khanna v. State of Delhi & ors MANU/DE/0905/2005, Sandeep Dixit v. State MANU/DE/2351/2012, John Pandian v. State (2010) 14 SCC 129, Sanjeev Kumar v. State of Himachal Pradesh AIR 1999 SC 782 and Jose @ Pappachan v. SubInspector of Police, Koyilandy & Anr (2016) 10 SCC 519.
25. Per contra, it was argued by ld. Counsel for the respondent No. 2/complainant that there is no such bar. He referred the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another (2005) 4 Supreme Court Cases 370 to contend that if such offence is committed prior to its production or giving in evidence in Court, no complaint by court would be necessary and a private complaint would be maintainable. Ld counsel stated that even a private party can make a complaint to the police when alleged cheating/forgery was noticed. Reference was also made of the case Saraswati Chatterjee v. State, 2006 SCC Online Delhi 320. Ld counsel referred the case of Sayed Askari Hadi Ali Augustine Imam & Anr v. State ( Delhi Admn.) & Anr CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 19/26 Criminal Appeal No. 416 of 2009 to contend that ordinarily a criminal proceeding will have primacy over the civil proceeding and in the given case, 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 a satisfaction that there exists a prima facie case. The case of Lal Muni Devi v. State of Bihar & ors (2001) 2SCC 17 was also referred wherein it was held that where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. Case of Amit Kapoor v. Ramesh Chander & Anr (2012) 9 SCC 46 was referred wherein it was held that at the initial stage of framing of a charge, the court is concerned not in proof but with a strong suspicion that the accused has committed an offence, which, if put to trial could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.
26. I have considered the submissions and gone through the case laws supra.
27. The instant case was registered on the complaint of Narendra Mehta @ Naren regarding the alleged forged Will CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 20/26 dated 18.01.2011, photocopy of which was filed by Smt. Shashi Thareja in her Written Statement to the Suit for Partition filed by Smt. Ritu Thareja in the High Court vide CS (OS) No. 402/2012 claiming that late Prabhu Dayal Mehta had executed a Will dated 18.01.2011 by virtue of which he had bequeathed the property in equal shares among all the legal heirs though according to the complainant, late Prabhu Dayal Mehta never executed the Will dated 18.01.2011 and it was a forged and fabricated document. It is to be noted that the said document was allegedly forged before the same was produced in the court.
28. It was held in the case of Iqbal Singh Marwah supra that as per Section 195(1)(b)(ii) CrPC, 1973, no court shall take cognizance of an offence relating to forgery of a document, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, except on the complaint in writing of that court, or of some other court to which that court is subordinate. The question involved in the case was whether the bar contained in Section 195(1)(b)(ii) would apply where forgery of a document was committed before the said document was produced in court. Reference of the case of Sachida Nand Singh v. State of Bihar, (1998) 2 SCC 493 was made wherein it was observed that the said bar would not CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 21/26 be applicable to a case where forgery of the document was committed before the document was produced in a court. Because of conflict of opinion between decisions of the Supreme Court in Sachida Nand Singh case and Surjit Singh v. Balbir Singh, (1996) 3 SCC 533, the appeal was placed before the Constitutional Bench held in the case of Iqbal Singh Marwah supra and it was held that Sachida Nand Singh has been correctly decided and the view taken therein is a 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". In the case of Saraswati Chatterjee supra, the case of Iqbal Singh Marwah supra was referred and it was held that where the forgery is said to have been committed outside the court and before the forged document is produced in the court, then the bar u/s 195(1)(b)(II) CrPC would not operate and the Magistrate can take cognizance of a complaint filed by an aggrieved party and it would not be necessary to adopt the procedure laid down u/s 340 CrPC. It was held that in the present case, one finds that the alleged Will, which is said to have been forged, was allegedly forged and fabricated prior to its CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 22/26 institution and production before the court. Therefore, the bar under Section 195(1)(b)(ii) CrPC would not operate. If the bar does not operate, then Section 340, which merely prescribes the procedure for dealing with cases where it operates, would not come into play. Therefore, this application under Section 340 CrPC would not be maintainable. This, however, does not mean that the applicant is without a remedy. It is open to him to file a complaint as the bar of Section 195 does not operate and it is open to the Magistrate to take cognizance if and when such a complaint is filed.
In view of above proposition of law, it was open for the complainant/Revisionist No. 2 to file the complaint and the bar of Section 195 would not operate. The Magistrate could take cognizance on that complaint.
29. As regards the contention that civil suit has not been disposed of and it is too early to state that the alleged Will is a forged and fabricated document, it is well settled law that where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It has been held in the case of Sayed Askari supra that ordinarily a criminal proceeding will have primacy over the civil proceeding and in a given case, civil CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 23/26 proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at a satisfaction that there exists a prima facie case.
In the light of above, I am of the view that criminal complaint against the revisionists was maintainable and it could go with the civil suit.
30. The case of Shashi Lata Khanna supra and Sandeep Dixit supra referred by Ld counsel for the petitioners do not help the petitioners in any manner at this stage of charge as according to the complainant, no Will dated 18.01.2011 was executed by late Prabhu Dayal Mehta, photocopy of which was filed by the accused Shashi Thareja in her written statement in the Suit vide CS (OS) No. 402/2012 claiming her right in the property. In the case of John Pandian supra and Sanjeev Kumar supra, the law of criminal conspiracy was discussed and it was observed that the conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit the offence. The case of Jose @ Pappachan supra talks about the circumstantial evidence and has no relevancy in this case.
31. We are at the stage of charge. The Court, at this stage, cannot be allowed to make roving inquiry. It has to see CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 24/26 whether the allegations made in the complaint and the material coming in the investigation give rise to strong suspicion as to the involvement of accused persons in the alleged transactions.
32. From the documents and the material placed on record and in view of the case laws supra as referred above and above discussions, I am of the opinion that prima facie case against the petitioners/accused persons, namely Navneet Thareja and Shashi Thareja is made out for the offences punishable u/s 120B and 467/471 r.w section 120B IPC. However, prima facie, no case is made out against the petitioners/accused persons Anil Rakheja and Ritu Rakheja. They are discharged of the offences punishable u/s 120B and 467/471 r.w section 120B IPC. Their bail bonds be cancelled. Their sureties be discharged. They are however directed to furnish bail bonds in the sum of Rs.50,000/ each with one surety each in the like amount to the satisfaction of the trial court in compliance of Section 437A CrPC.
33. The revision petition titled Navneet Thareja v. State & Anr bearing No. 359/2017(53/17) is dismissed. The revision petition titled Anil Rakheja & Ritu Rakheja v. State & Anr bearing No. 364/2017 (59/17) is allowed.
CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 25/26
34. Nothing mentioned hereinabove shall be the expression of opinion on the merits of the case.
35. Trial Court Record be sent back with the copy of this order.
36. Files of both the revision petitions be consigned to the Record Room.
Announced in the Open Court on 10.01.2018. (Sanjiv Jain) ASJ/Special Judge (PC Act) (CBI3), South, Saket Court New Delhi CR No. 53/17 (359/17) & 59/17 (364/17) Dated 10.01.18 Page no. 26/26