- (1.) THIS criminal misc. petition has been filed by the petitioners under section 482 Cr.P.C. for quashing the FIR No. 330 of 2010 dated 7.6.2010 registered at Police Station Nayapura, Kota City, registered for the offence under sections 467, 468, 469, 470, 471, 120 B IPC, and 420 IPC on the complaint sent by the court under section 156 (3) Cr.P.C.
(2.) THE brief facts of the case are that late Gore Lal, late Babu Lal, late Munshi lal, late Bheru lal sons of Kishan Lal by caste Koli, resident of Shreepura, Kota jointly owned Khasra Nos. 1075, 1076, 1077, 1078, 1079, 1080, 1080 (in all 7 Khasras) measuring 2.01 Hectare, which comes to 18 Bighas situated in village Deoli-arab, Tehsil Ladpura, District Kota, and Khasra Nos. 883 and 885 situated in village Tekhada, Tehsil Ladpura, District Kota. Since all the four persons were aged, they jointly executed will in favour of Badam Singh petitioner No.2 on 14.7.1992. All the four persons Gore Lal, Babu Lal, Munshi Lal, Bheru Lal sons of Kishan Lal, who had executed the will all expired one after the other. After 3.11.2007 the will became effective and Badam Singh petitioner No.2 became the only owner of the land in pursuance to the will. It is alleged in the petition that the petitioner No.2 has been in possession of the land and the land is still in his possession. It is stated in the petition that the petitioner No.2 got a notice published on 5.12.2009 in Rajathan Patrika that he has become owner of the land jointly owned by Gore Lal, Babu Lal, Munshi Lal, Bheru Lal sons of Kishan Lal, by virtue of will dated 14.7.1992 and nobody have any right to sell the land covered under will. THE petitioner No.2 Badam Singh came to know that the land owned by him is being sold by the sons of all the four executor of will, vide sale deed dated 7.10.2009 to Smt. Kiran wife of Suresh Kumar and Smt. Sunita Devi wife of Ram Kumar. THE petitioner No.2 Badam Singh came to know that on the basis of sale deed dated 7.10.2009 Smt. Kiran wife of Suresh Kumar and Smt. Sunita Devi wife of Ram Kumar, are planning to sale further land the petitioner No.2 Badam Singh has been threatened of dispossession. In view of this petitioner No.2 Badam Singh filed suit of declaration and permanent injunction against Devendra Kumar complainant and other 41 persons for cancellation of sale deed dated 7.10.2009 in the Court of District Judge, Kota and the same is pending there which has been now transferred to Additional District Judge No.4 Kota and registered as case No. 3/2010 Badam Singh vs. Devendra Kumar. Similarly Badam Singh also filed a suit against Urmila Bai wife of late Anoop Kumar, Lucky son of Anoop Kumar, Guddi, daughter of Anoop Kumar and Satyanarain Verma for declaration and permanent injunction of cancellation of sale deed dated 30.10.2009, which is registered as Suit No. 4/2010 pending before the Additional District Judge No.4 Kota City. A similar suit was also filed against Urmila and others for declaration and cancellation of sale deed dated 30.10.2009, which is registered as Suit No. 5/2010. THE respondent- complainant and other defendants filed reply to the application for temporary injunction. A suit was also filed by the petitioner Badam Singh along with temporary injunction application which was registered as Civil Misc. Case No. 6/2010. Reply to this temporary injunction application was also filed by the respondent complaint. THE respondent complainant Devendra filed a complaint under sections 467, 468, 471, 120 B IPC and 420 IPC on 7.6.2010 against the petitioners in the court of ACJM (Riots) Court Kota. THE court forwarded the complaint for inquiry under section 156 (3) Cr.P.C. on which FIR No. 330 of 2010 dated 7.6.2010 has been registered. Along with the criminal misc. petitions the petitioners filed certified copies of the documents as mentioned above. THE respondent No.2 filed application for vacation of the exparte interim order on 7.4.2011. Alongwith the application he has filed the copy of the civil suit filed by Gorelal, Babulal, Munshi Lal and Bherulal in the court of Civil Judge, Kota in the year 1984(Annexure R-1) and the opinion of the handwriting and fingerprint expert dated June 16, 2010. It was stated that the signatures made on alleged will are forged and in order to arrive at a just and proper conclusion, it is expedient in the interest of justice that the original document i.e. alleged will may be sent for opinion of the handwriting expert of Forensic Science Laboratory Jaipur. It was also prayed that the interim order may be vacated. On May 20, 2011 the petitioners filed reply to the misc. application filed by the respondent No.2 Devendra Kumar for vacation of stay dated 7.4.2011. Along with the application the petitioners filed copy of the power of attorney, will and the opinion of Forensic Expert dated 11.4.2011. On March 1, 2012 the petitioners filed application for amending the misc. petition. THEreafter the petitioners filed application under section 482 Cr.P.C. for taking on record the documents filed by Harish Kumar s/o Gorelal @ Gorilal in Civil Suit No. 3/10 pending before the Additional District Judge No.4 Kota. THE respondent No.2 filed reply to the application filed by the petitioners for amending the misc. petition. THE petitioners thereafter on May 15, 2012 filed further application for taking documents on record. The learned counsel for the petitioners submits that the filing of FIR is simply an abuse of the process of court and will result in the serious miscarriage of justice to the petitioners. It has been argued that once the document is filed in the court the same became the document of the court and any pursuing fabrication or mis-statement is found then only court can file the FIR. It is not open to the defendant and in the court is not open to the respondent complaint who is defendant in the civil suit to file a complaint of pursuing for the document of the court. The filing of the complaint converted into FIR is nothing but tactics to bring pressure on the petitioners and to all of them, if investigation is allowed on the basis of the FIR. It is also submitted that the document clearly borns out that it is purely civil dispute which is being given colour of criminal by using the criminal law. No FIR was lodged directly and a complaint was filed in which it was prayed that matter may be referred to police for inquiry. There is no averment in the complaint that police is not registering the FIR. The Cr.P.C. has provided the measures to be taken even if the SHO of the police station concerned refuses or neglect to register the FIR. No such effort has been made by the respondent complainant and as such a complaint itself was not entertainable by the court. The ingredients of the offence are not made out. The petitioner No.2 inherited the property in pursuance to the will of which the public notice was also given by way of publication in the newspaper. The FIR is not worth registration and investigation thereon. Lastly it was prayed that the FIR may be quashed to prevent the abuse of the process of the court. Mr. A.K. Gupta, learned counsel for the petitioners placed reliance on various decisions of the Apex Court Ram Chandra and another vs. State of U.P. (AIR 1957 SC 381) The State ( Delhi Administration vs. Pall Ram ( AIR 1979 SC 14 ), Ishwari Prasad Misra vs. Mohammad Isa ( AIR 1963 SC 1728), the State of Gujrat vs. Vinaya Chandra Chhota Lal Pathi (AIR 1967 SC 778) on the points of Hand writing Expert. On the point of forgery questioning FIR G. Sagar Suri and another vs. State of U.P. ( AIR 2000 SC 754 Zandu Pharmaceutical Works Ltd. and ors. vs. Md. Sharaful Haque and others (2005) 1 SCC 122, Inder Mohan Goswami and anr., vs. State of Uttaranchal and others (JT 2007 (11) SC 499 (AIR 2008 SC 251), Joseph Salvaraj A. vs. State of Gujrat and others (2011 ) 7 SCC 59, M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd. and others (AIR 2006 SC 2780 (1), and State of Haryana and others vs. Ch. Bhajan Lal and others (AIR 1992 SC 604, and on the unimpeachable document reliance has been placed on State of Orissa vs. Devendra Nath Padhi (2005) 1 SCC 568, Suryalakshmi Cotton Mills Ltd. vs. Rajvir Industries Ltd. and others (AIR 2008 SC 1683), Anita Malhotra vs. Apparel Export Promotion Council and anr. (2012) 1 SCC 520, Pashaura Singh vs. State of Punjab and another (2009 AIR SCW 7226). On the other hand Mr. Anurag Sharma, learend counsel appearing for the complainant and Mr. Peeyush, Public Prtosecutor appearing for the State have argued that it is not the stage of quashing the FIR registered at the Police Station Nayapura Kota on the complaint sent by the concerned court under section 156 (3) Cr.P.C. for investigation. The nature of the dispute whether it is civil or criminal can only be decided during investigation by the police and it is an admitted fact that the document sent to the FSL for examination of the signatures of the deceased four persons to whom the accused petitioners is claiming that they have given the land in question to him on a will. Forgery appears to have been done as the signatures on the will are not of the deceased persons. They have further argued that the cases cited by the learned counsel for the petitioners in this case are not applicable to the facts of this case. They have placed reliance on Narender G. Goel vs. State of Maharashtra and another (2009 ) 6 SCC 65. I have heard the learned counsel for the parties. Before proceeding further it would be necessary to have a look at the rulings cited by the learned counsel for the parties. The Apex Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, held as under : 21. It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under Section 482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction under Section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge. 29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case 1992 Supp (1) SCC 335. The Apex Court in Bhajan Lal's case (AIR 1992 SC 604) enunciated the following principles, which are as under : " (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." The Apex Court in Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited, (2008) 13 SCC 678, held as under : "20. We may also place on record that criminal proceedings should not be encouraged when it is found to be mala fide or otherwise abuse of process of court. 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable." The Apex court in Anita Malhotra v. Apparel Export Promotion Council,(2012) 1 SCC 520, held as under : "22. This Court has repeatedly held that in case of a Director, the complaint should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused company for conduct of its business and mere bald statement that he or she was in charge of and was responsible to the company for conduct of its business is not sufficient. (Vide National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal7.) In the case on hand, particularly, in Para 4 of the complaint, except the mere bald and cursory statement with regard to the appellant, the complainant has not specified her role in the day-to-day affairs of the Company. We have verified the averments as regards to the same and we agree with the contention of Mr Akhil Sibal that except reproduction of the statutory requirements the complainant has not specified or elaborated the role of the appellant in the day-to-day affairs of the Company. On this ground also, the appellant is entitled to succeed. 23. In the light of the above discussion and of the fact that the appellant has established that she had resigned from the Company as a Director in 1998, well before the relevant date, namely, in the year 2004, when the cheques were issued, the High Court, in the light of the acceptable materials such as the certified copy of the annual return dated 30-9-1999 and Form 32 ought to have exercised its jurisdiction under Section 482 and quashed the criminal proceedings. We are unable to accept the reasoning of the High Court and we are satisfied that the appellant has made out a case for quashing the criminal proceedings. Consequently, Criminal Complaint No. 993/1 of 2005 on the file of ACMM, New Delhi, insofar as the appellant herein (A-3) is concerned, is quashed and the appeal is allowed.
(3.) THE Apex Court in Pashaura Singh v. State of Punjab, (2010) 11 SCC 749 held as under : "7. Having heard the learned counsel for the parties and upon careful perusal of the materials placed before us, in our judgment, the order of the High Court cannot be sustained for more than one reason. In the first place, the High Court gravely erred in observing that Pashaura Singh married second time on 2-1-2002 while he was already married with Kamaljeet Kaur and the aforesaid marriage has not been dissolved." The certificate of divorce dated 26-2-2001 issued by the New Westminster Registry, the Supreme Court of British Columbia shows that the marriage of Pashaura Singh and Kamaljeet Kaur stood dissolved on 8-2-2001. As a matter of fact, this fact is noticed in the order dated 29-4-2004 whereby the High Court quashed FIR No. 9 and the subsequent criminal proceedings against the family members of Pashaura Singh. In the affidavit filed by Gurmail Singh, Deputy Superintendent of Police in response to the petition filed by the appellant under Section 482 before the High Court, it has been admitted that during investigation on 14-3-2002 Hakam Singh had produced photocopy of divorce certificate purporting to have been issued by the Supreme Court of British Columbia. The observation of the High Court, thus, that Pashaura Singh married second time, although his marriage has not been dissolved, is ex facie contrary to record. ;