Subhas Chandra Kesarwani and Another v. State of U.P. and Another

Allahabad HC9 Apr 2018A482/2955/2018

Case brief

AI extract

What is this about?

The High Court rejected an application to quash criminal proceedings for forgery and cheating. Relying on Parbatbhai Aahir, the court held that cases involving financial fraud on the state's domain, such as forged wills to grab property, cannot be quashed despite a settlement due to their deep public interest implications.

What did the court decide?

Application under Section 482 CrPC to quash criminal case proceedings was dismissed. The instant application is rejected.

Subhas Chandra Kesarwani and Another Vs State of U.P… — Cheating and Forgery | Allahabad HC (2018)

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(1)

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A.F.R.

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Order Reserved on : 28.02.2018 Order Delivered on : 09.04.2018

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Court No. - 28

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Case :- APPLICATION U/S 482 No. - 2955 of 2018

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Applicant :- Subhas Chandra Kesarwani And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vikas Srivastava,Umesh Chandra Kesarwani Counsel for Opposite Party :- G.A.

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Hon'ble Umesh Chandra Tripathi,J.

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(1) Heard Sri Vikas Srivastava, learned counsel for the applicants, Sri Umesh Chandra Kesarwani, learned counsel for the informant (opposite party no. 2) and learned A.G.A. for the State of U.P. (opposite party no. 1).

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(2) By way of instant application under Section 482 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), the applicants have made a prayer to quash the entire proceedings against the applicants in Criminal Case No. 539 of 2017 (State v. Subhas Chandra Kesarwani & others) arising out of Case Crime No. 393 of 2016 under Sections 419, 420, 467, 468, 471 of Indian Penal Code (hereinafter referred to as 'IPC'), Police Station – Sarai Inayat, District – Allahabad pending in the Court of A.C.J.M. 09, Allahabad as the matter has been resolved by compromise between the parties.

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(3) To dispose of this application, brief narration of facts is necessary, which is as follows:

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(4) Opposite party no. 2 Kailash Nath Kesarwani lodged a first information report on 29.09.2016 at 08.45 A.M. with the allegation that he is partner of a registered partnership firm M/s. Kesarwani Jarda Bhandar, Sahson, Allahabad with other co-partners. Bhola Nath Kesarwani was also a co-partner of the said firm. He died on

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(2)

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01.04.1998. After his death, his wife Smt. Chandra Prabha Devi was recorded as owner of his personal property in revenue records. Smt. Chandra Prabha Devi also died on 21.01.2005. After her death, Sri Subhash Chandra Kesarwani in collusion with his brother-in-law ('saala') Anup Kumar Gupta made a forged will deed alleged to have been executed by Bhola Nath Kesarwani on 27.03.1993. Subhash Chandra Kesarwani has himself forged the signature of Late Bhola Nath Kesarwani. Anup Kumar Gupta and Shamshuddin were witnesses of the alleged forged will deed. Sri Subhash Chandra Kesarwani has not acted upon that forged will deed during lifetime of Smt. Chandra Prabha Devi. After death of Smt. Chandra Prabha Devi, Subhash Chandra Kesarwani got recorded in his own favour, in the revenue record, the land situated in Village Kataka, Jhunsi, District – Allahabad, belonging to M/s. Kesarwani Jarda Bhandar, Sahson, Allahabad on the basis of the impugned forged document.

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(5) Sri Shamshuddin, witness of the alleged will deed, filed an affidavit in Civil Suit No. 32 of 2000 (M/s. Kesarwani Jarda Bhandar, Sahson, Allahabad v. Subhash Chandra Kesarwani), with the fact that alleged will deed was neither prepared in his presence nor Bhola Nath Kesarwani had signed on it.

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(6) Learned counsel for the applicants, relying on the verdict of Hon'ble Apex Court in B.S. Joshi & Ors. v. State of Haryana & Anr. (2003) 4 SCC 675, Nikhil Merchant v. Central Bureau of Investigation & Anr (2008) 9 SCC 677, Mohammed Ibrahim and Others v. State of Bihar and Another (2009) 8 SCC 751 and Manoj Sharma v. State and Others (2008) 16 SCC 1 contended that proceedings may be quashed by this Court in exercise of power under Section 482 Cr.P.C., if parties settled their disputes through compromise, even in non-compoundable cases.

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(3)

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(7) In B.S. Joshi 's case (supra), Hon'ble Apex Court observed that it is the duty of the court to encourage genuine settlements of matrimonial disputes. If in a case, there is no chance of conviction, it would be proper to quash the proceedings of the case, permitting the parties to compound non-compoundable offences.

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(8) In Nikhil Merchant 's case (supra), Hon'ble Apex Court quashed the proceedings of criminal case, considering the particular facts of the case.

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(9) In Mohd. Ibrahim 's case (supra), Hon'ble Apex Court held as follows :

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30. The averments in the complaint if assumed to be true, do not make out any offence under Sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under Section 341 and causing hurt under Section 323 IPC.

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31. For the reasons stated above, the appeal is allowed in part. The order of the High Court is set aside. The order dated 14-122005 of the learned Sub-Divisional Magistrate is quashed insofar as offences under Sections 420, 467, 471 and 504 IPC. Consequently, the charges framed under those sections are also quashed. The order dated 14-12-2005 and the charges insofar as the offence under Sections 323 and 341 are left undisturbed. The appeal is allowed in part accordingly.

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(10) In Manoj Sharma 's case (supra), Hon'ble Apex Court held as follows :

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9. As we have indicate hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No. 50 of 1997 dated 31-1-1997, PS Vivek Vihar (East Delhi).

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(11) A three Judge Bench of Hon'ble Apex Court in Parbatbhai Aahir & Ors. v. State of Gujarat & Ors. AIR 2017 SC 4843, after carefully perusing and analyzing the observations made by Hon'ble Apex Court previously in various cases, laid down the

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(4)

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following propositions :

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(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

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(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

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(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

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(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

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(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

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(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

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(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

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(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

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(5)

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(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

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(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

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(12) In this particular case, several civil disputes arising out of alleged forged will deed have been decided on the basis of compromise between the parties. In those disputes, the alleged forged will deed was acted upon. From the perusal of records, it is evident that first information report in this case was lodged on 29.09.2016 and after that, applicant Subhash Chandra Kesarwani and opposite party no. 2 Kailash Nath Kesarwani agreed to compromise in civil cases. This shows that applicant Subhash Chandra Kesarwani entered into a compromise only due to fear of criminal case. It is alleged that the forged will deed has been made by the applicant Subhash Chandra Kesarwani to grab the land and property of Late Bhola Nath Kesarwani and deprive his legal heirs from their right on property belonging to Late Bhola Nath Kesarwani.

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(13) Litigation takes a lot of time. Powerful and fraudulent people may take undue advantage of this fact and deprive the poor and innocent people from their right to property on the basis of forged transfer deed. It will be difficult then for the poor and innocent to save their property from the grab of the rich and fraudulent. In such cases, proceedings cannot be quashed on the basis of compromise between the parties.

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(14) The present case involves allegations of forgery and fabrication of document to grab the properties of Late Bhola Nath

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Kesarwani and deprive his legal heirs from their rights.

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(15) This is not a fit case in which criminal proceedings may be quashed.

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(16) Accordingly, the instant application is rejected.

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Order Date :- 9.4.2018 I. Batabyal