Hira Lal & Ors vs State Of U.P. & Ors

Hira Lal & Ors. ... Appellants

Versus

State of U.P. & Ors. ... Respondents

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2

2. Appellants and the respondent No.3 (complainant) are co-sharers.

Raghuvansh Tyagi, father of respondent No.3, and Tika Ram Tyagi, father

of Smt. Suman Devi were co-khatedars in respect of Khasra No.59 having

an area of 2.0920 hectares of land situated in village Bhangel Begampur, PS

Phase II, Noida.

Father of Respondent No.3 and Suman Devi were having 3/16th share

in the aforementioned khasra. According to the complainant, prior to 1997

a mutual agreement was entered into amongst the co-sharers, pursuant

whereto, 2000 sq. yds. of lands was allotted for the purpose of residential

house to each of the co-sharer. The complainant on his allotted land,

allegedly constructed a house and started living there. He also said to have

constructed 10 shops. Tika Ram Tyagi is said to have constructed two

houses on 600 sq. yards of land and his sons also constructed pucca houses

on the remaining 1400 sq. yds. of land in November 2006.

3. Tika Ram Tyagi executed a registered deed of sill on or about

24.2.1997 bequeathing all his moveable and immoveable properties in

favour of his grand sons.

3

Husband of Smt. Suman Devi, Anil Kumar is said to have signed the

said Will as one of the attesting witnesses.

On or about 1.8.2002, however, another Will was executed by Tika

Ram Tyagi who had been suffering from throat cancer in respect of the

same property in favour of Smt. Suman Devi. Appellant No.1 Hira Lal was

a witness to the said Will.

It is stated that Suman Devi later on executed a `Bainama' in favour

of Ashok Kumar Tyagi, younger brother of appellant No.1 on the basis of

the said Will. It stands admitted that in terms thereof Suman Devi got her

name mutated in the Land Revenue Record on or about 26.9.2002. She,

allegedly, sold nine shops in favour of Ashok Kumar Tyagi by reason of a

`Bainama' dated 22.10.2002. Yet again she sold another shop on

23.10.2002 by reason of another `Bainama' in favour of Ashok Kumar

Tyagi.

4. A civil suit was filed by the respondent in the court of Civil Judge,

Senior Division, Gautam Budh Nagar, inter alia, praying for cancellation of

the said Will on the premise that the said Will was a forged one. The said 4

suit was dismissed by an order dated 29.3.2006. An appeal thereagainst is

said to be pending.

Prior thereto, Respondent No.3 filed a complaint petition in the Court

of ACJM, Gautam Budh Nagar which was marked as Complaint Case

No.212 of 2003 under Section 420, 462, 467, 468 and 471 IPC, inter alia,

contending that the Will dated 1.8.2006 purported to have been executed by

Tika Ram Tyagi in favour of his daughter Suman Devi was a forged and

fabricated document. The learned ACJM, Gautam Budh Nagar, however,

dismissed the said complaint petition, stating :

"Case called. Complainant is not present. No record has been submitted in compliance of the earlier order. File be put up at 3 pm for order. Photocopy of the Khatauni has been submitted by the complainant in which the names of Mukesh and other co-shareholders are mentioned in Khata Khatauni No.22, Khet No.59. Only becoming a co-shareholder of the land does not prove a sale deed or Will as fake or sham document. Since Tika Ram's name is also one of the co- shareholders and the alleged sale deed and Will has not been declared to be fake or bogus by any other court, therefore, in the light of the record available in case file and oral evidence, no prima facie case is made out against the accused persons. The complaint under Section 203 is hereby rejected."

5 5. We may place on record that the learned ACJM by an order dated

13.2.2003, inter alia, opined that `no record was available in the file which

could prove that the said Deed of Will are prima facie fake and bogus'. A

revision application was filed thereagainst by respondent No.3 which was

dismissed by an order dated 8.4.2004.

6. Respondent No.3 thereafter filed another application under Section

156(3) of the Code of Criminal Procedure, 1973 (Code) making similar

allegations. However, in the said complaint petition even the execution of

the bienamas was alleged to be fraudulent acts on the part of the accused

respondent, contending :

"That the opponent Suman did not have any right to dispose of the plot with Khasra No.59 and no share of the plot of Khasra No.59 came to the share of Suman.

That opponent Suman played fraud first did Karam Chand and Dayanand and without the permission of Tika Ram got the Will of Tika Ram in her favour with regard to the property in Khasra No.59."

6 Learned First Additional Chief Judicial Magistrate by an order dated

8.7.2008 issued summons which reads as under :

"Because your presence is required to make the reply of the charge under Section 420, 467, 468, 471, 506 IPC, therefore, you are directed to appear either in person or through advocate before the concerned court on 8.7.08. Fail not to do so."

7. Appellants filed an application under Section 482 of the Code which

by reason of the impugned judgment has been dismissed. The High Court

in its impugned judgment refused to go into the merit of the matter that the

defence of the accused cannot be considered at that stage and they can raise

all contentions at the time of framing of the charges.

8. Mr. J.P. Dhandha, learned counsel appearing on behalf of the

appellant, would contend that the High Court committed a serious error

insofar as it failed to take into consideration that the second complaint

petition being not maintainable, the summons issued by the court of ACJM

was wholly illegal and without jurisdiction.

7

9. Mr. Pramod Swarup, learned counsel appearing on behalf of the

State, and Mr. Vishwajit Singh, learned counsel appearing on behalf of

respondent No.3 would, however, support the impugned judgment.

10. The parameters of interference with a criminal proceeding by the

High Court in exercise of its jurisdiction under Section 482 of the Code are

well known. One of the grounds on which such interference is permissible

is that the allegations contained in the complaint petition even if given face

value and taken to be correct in their entirety, commission of an offence is

not disclosed. The High Court may also interfere where the action on the

part of the complainant is mala fide.

11. The dispute between the parties is essentially civil in nature. The

Will in question is a registered Will. Whether it is surrounded by suspicious

circumstances or not is a matter which may appropriately fall for

determination in a testamentary proceeding. Prima facie, a Civil Court has

found the said Will to be genuine. A complaint petition filed by the third

respondent has been rejected. A revision application filed thereaginst has

also been dismissed.

8

In State of Haryana & Ors. v.. Ch. Bhajan Lal & Ors. [1992 Supp (1)

SCC 335], this Court, relying on Pratibha Rani v. Suraj Kumar and Anr.

[(1985) 2 SGC 370], stated that for the purpose of exercising its power

under Section 482 of the Code of Criminal Procedure to quash a FIR or a

complaint, the High Court would have to proceed entirely on the basis of

the allegations made in the complaint or the documents accompanying the

same.

In R. Kalyani v. Janak C. Mehta & Ors. [(2009) 1 SCC 516], this

Court stated the propositions of law, thus :

"(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.

(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.

(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 9

order in favour of the accused to hold absence of any mens rea or actus reus. (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."

It was furthermore observed :

"10. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint."

12. Mr. Singh would argue that Tika Ram Tyagi having executed the Will

in respect of his own share, the appellants could not have transferred the

shops in favour of third party relying on or on the basis thereof. 10

13. The question as to whether the transactions are genuine or not would

fall for consideration before the Civil Court as indisputably the respondent

No.3 has filed a civil suit in the court of Civil Judge, Gautam Budh Nagar

wherein allegedly an interim injunction has been granted. What was the

share of the respective co-sharers is a question which is purely a civil

dispute; a criminal court cannot determine the same.

14. The order of learned ACJM in his order dated 2.4.2003 is not a

cryptic one. Reasons have been assigned in support thereof. In a situation

of this nature, in our opinion, a second complaint petition could not have

been filed.

Strong reliance has been placed by Mr. Singh on a decision of this

Court in Mahesh Chand v. B. Janardhan Reddy & Anr. [(2003) 1 SCC 734],

wherein it was opined that second complaint was not completely barred in

law. This Court, however, in that decision itself held that the second

complaint can lie only on fresh facts and/or if a special case is made out

therefor, stating :

"19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no 11

statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."

15. The second complaint petition filed by the third respondent does not

disclose any such exceptional case. It reiterated the same allegations as

were made in the first complaint petition. No fresh fact was brought to the

notice of the court. The core contention raised in both the complaint

petitions was alleged execution of a forged Will by Tika Ram Tyagi. 12

16. For the reasons aforementioned, we are of the opinion that it was not

a fit case where cognizance of the offence could have been taken or any

summons could have been issued. The impugned judgment, thus, cannot be

upheld. It is set aside accordingly. The appeal is, therefore, allowed.

.....................................J. [S.B. Sinha]

.....................................J. [Dr. Mukundakam Sharma]

New Delhi;

April 8, 2009