Dismissed

Mahesh Kumar and 2 Others v. State of U.P. and 2 Others

Allahabad HC30 May 2018CRLP/14216/2014

Case brief

AI extract

What is this about?

High Court dismissed a writ petition seeking quashing of criminal proceedings for forgery related to a disputed will. The court held civil and criminal proceedings can proceed simultaneously and the specific allegations of forgery did not disclose a prima facie bar to prosecution.

What did the court decide?

The writ petition seeking quashing of the orders passed under Section 239 CrPC and the dismissal of revision was dismissed as devoid of merit.

Mahesh Kumar and 2 Others Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2018)

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(1)

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Judgment Reserved on : 17.04.2018
Judgment Delivered on : 30.05.2018

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In Chamber

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Case :- CRIMINAL MISC. WRIT PETITION No. - 14216 of
2014

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Petitioner :- Mahesh Kumar And 2 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Vineet Kumar Singh,Arun
Kumar Singh,H.N. Singh

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Counsel for Respondent :- Govt.Advocate,Anjani Kumar
Raghuvanshi,Ankur Singh Kushwaha,J.P. Mishra,Rajeev
Kumar Saini

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Hon'ble Umesh Chandra Tripathi,J.

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[1]. Heard Sri H.N. Singh, learned Senior Counsel for the petitioners, Sri Ankur Singh Kushwaha, learned counsel for respondent no. 3 and Sri L.D. Rajbhar, learned A.G.A. for the State of U.P. (respondent no. 1) and respondent no. 2.

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[2]. This writ petition under Article 226 of the Constitution of India has been filed on behalf of the petitioners with a prayer to quash the order dated 07.08.2013 passed by Additional Chief Judicial Magistrate, Court No. 1, Muzaffarnagar in Criminal Case No. 2343/09 of 2011 (State v. Kuldeep and others) and the judgment and order dated 02.08.2014 passed by Additional Sessions Judge, Court No. 8, Muzaffarnagar in Criminal Revision No. 274 of 2013 (Kuldeep and others v. State of U.P.).

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[3]. Vide order dated 07.08.2013, application of the petitioners under Section 239 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for discharge was rejected and a date was fixed for framing of charge under Sections 420, 467, 468, 471, 504 and 506 of the Indian Penal Code (hereinafter referred to as 'IPC') against the

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(2)

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accused-petitioners – Mahesh Kumar, Kuldeep Singh and Uttam Singh. Against this order, the accusedpetitioners filed revision (Criminal Revision No. 274 of 2013 (Kuldeep and others v. State of U.P.), which was dismissed vide order dated 02.08.2014 passed by Additional Sessions Judge, Court No. 8, Muzaffarnagar.

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[4]. Succinctly, facts of the case are that Smt. Parmali Devi, paternal aunt (' chachi ') of informant Jagmal Singh (respondent no. 3) had executed a registered will deed on 22.09.1999 in favour of informant Jagmal Singh and his brothers Gajendra Kumar and Mahaveer Singh. After the death of Smt. Parmali Devi, proceedings for mutation was initiated on 07.12.2006. In the mutation proceedings, accused Kuleep Singh, Mahesh Kumar (petitioners) and their mother Smt. Mahendri Devi filed objections. On the basis of registered will deed in favour of informant Jagmal Singh and his brothers Gajendra Kumar and Mahaveer Singh, on 30.10.2009, the court passed order in favour of informant and his brothers and accordingly, their names were recorded in the revenue records. Later on, accused-petitioners prepared a forged will deed stating to be executed by Smt. Parmali Devi and filed an application for mutation on 11.12.2009 on the basis of that forged will deed. On the written information of the informant, first information report at Case Crime No. 69 of 2009 under Sections 420, 467, 468, 471, 504 and 506 of IPC was registered against the accused-petitioners at Police Station – Chapaar, Sadar, District – Muzaffarnagar and after investigation, the police submitted charge sheet for the aforesaid offences.

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(3)

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[5]. Learned counsel for the petitioners contended that Smt. Parmali Devi had executed a will deed on 01.05.2003 in favour of the petitioners, which is duly certified by notary of the Government of U.P. By the aforesaid will deed, Smt. Parmali Devi had cancelled the earlier will deed dated 22.05.1999 executed by her in favour of informant and his brothers. The matter is pending before the revenue court. Dispute between the parties is purely of civil nature for which criminal proceedings cannot continue. Cognizance is barred by provision of Section 195 of the Code. Without considering all these facts, the courts below have passed the impugned orders, which are bad in law and as such, are not sustainable.

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[6]. In order to give thrust to his arguments, learned counsel for the petitioners has placed reliance upon the verdict of Hon'ble Apex Court in catena of cases viz. Inder Mohan Goswami and Another v. State of Uttaranchal and others reported in (2007) 12 SCC 1 , Dilip Kaur and Others v. Jagnar Singh and Another reported in (2009) 14 SCC 696 and Ganga Dhar Kalita v. The State of Assam and Others reported in (2015) 9 SCC 647 .

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[7]. In Inder Mohan Goswami 's case (supra), Hon'ble Apex Court had quashed the FIR and further proceedings on the ground that even if all the averments made in the FIR are assumed to be correct, the case for the prosecution under Section 420 and 467 of IPC is not made out.

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[8]. In Dilip Kaur 's case (supra), Hon'ble Apex Court observed that facts of the case do not constitute an offence for cheating. In that case, Hon'ble Apex

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(4)

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Court has referred to its earlier judgment in R.
Kalyani v. Janak C. Mehta and others reported in
(2009) 1 SCC 516, wherein it was held as under :

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(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

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(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

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(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

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(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

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[9]. Accordingly, only because an allegation discloses civil dispute, criminal proceeding cannot be withheld.

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[10]. In Ganga Dhar Kalita 's case (supra), Hon'ble Apex Court observed as follows :

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No doubt, where the criminal complaints are filed in respect of property disputes of civil in nature only to harass the accused, and to pressurize him in the civil litigation pending, and there is prima facie abuse of process of law, it is well within the jurisdiction of the High Court to exercise its powers under Section 482 of the Code to quash the criminal proceedings. However, the powers under the section are required to be exercised sparingly. In Kamaladevi Agarwal v. State of W.B. and others, this Court has observed as under:"This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction."

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[11]. Retorting to the arguments advanced by learned counsel for the petitioners, learned counsel respondent no. 3 and learned A.G.A. for respondent

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nos. 1 and 2 contended that criminal proceedings and

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(5)

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proceedings before the revenue court may continue
together. Forged will deed has been prepared outside
the court proceedings. Will deed executed in favour
of informant and his brothers are registered
document, whereas will deed alleged to have been
executed in favour of the accused-petitioners is not
a registered deed. If any will deed was executed in
favour of accused by Smt. Parmali Devi on
01.05.2003, then there was no reason for the
petitioners not to file the alleged will deed dated
01.05.2003 in the mutation proceedings initiated by
informant Jagmal Singh on 07.12.2006 in which final
order has been passed by revenue court on
30.10.2009. Accordingly, there is no illegality or
infirmity in the well-reasoned and well-observed
judgments/orders passed by the courts below.

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[12]. In support of his arguments, learned counsel for the private-respondent has also placed reliance upon the judgment of Hon'ble Apex Court in Syed Askari Hadi Ali Augustine Imam and Another v. State (Delhi Admin) reported in (2009) 5 SCC 528 and Kishan Singh (D) through L RS v. Gurpal Singh reported in (2010) 8 SCC 775 .

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[13]. In Syed Askari 's case (supra), Hon'ble Apex Court held as follows :

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9. 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.

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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.

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10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding

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(6)

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ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible.

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[14]. In Kishan Singh 's case (supra), Hon'ble Apex Court has referred the judgment of privy council and its earlier judgments, which are as follows :

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(1). In Emperor v. Khwaja Nazair Ahmad reported in
1945 AIR (PC) 18 it was held as under :

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"It is conceded that the findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same or similar allegations. Moreover, the police investigation was stopped and it cannot be said with certainty that no more information could be obtained. But even if it were not, it is the duty of a criminal court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision which is not binding upon it." ;

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(2). In Iqbal Singh Marwah and Another v. Meenakshi
Marwah and Another reported in (2005) 4 SCC 370 it
was held as under :

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"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." ; and

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(3). In P. Swaroop Rani v. M. Hari Narayana alias
Hari Babu reported (2008) 5 SCC 765 it was held held
as under :

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"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......Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil court, is not barred under any statute......It goes without saying that the respondent shall be at liberty to take recourse to such a remedy which is available to him in law. We have interfered with the impugned order only because in law simultaneous proceedings of a civil and a criminal case is permissible."

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(7)

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[15]. Accordingly, proceedings before revenue court or civil court may continue concurrently.

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[16]. In this case, it is alleged that the petitioners Mahesh Kumar, Kuldeep Singh and Uttam Singh had prepared forged will deed dated 01.05.2003, stating to be executed by Smt. Parmali Devi. Accordingly, it cannot be said that charge against the accusedpetitioners is groundless.

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[17]. It is not alleged in complaint that forgery has been committed in respect of document produced or given in evidence in the proceedings of revenue court, but it is alleged that forged will deed was prepared by the petitioners and on the basis of that forged deed, they applied for mutation. Accordingly, prosecution is not barred by Section 195 of the Code.

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[18]. From the perusal of impugned orders, it is revealed that learned counsel for the accused has not raised this argument before trial court or revisionial court. As such, the impugned orders passed by the courts below are not beyond jurisdiction.

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[19]. Accordingly, I find no illegality or infirmity in the impugned orders passed by the courts below.

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[20]. Resultantly, the instant writ petition, being devoid of merit, is dismissed .

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Order Date :- 30.5.2018
I. Batabyal

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[Umesh Chandra Tripathi, J.]

Mahesh Kumar and 2 Others v. State of U.P. and 2 Others

Case brief

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Mahesh Kumar and 2 Others v. State of U.P. and 2 Others

Case brief

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