High Court
Case Details
Court No. - 84 Judgment reserved on 24.11.2022 Judgment delivered on 09.12.2022 Case :- APPLICATION U/S 482 No. - 11693 of 2015 Applicant :- Shiv Kumar And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Shukla Counsel for Opposite Party :- Govt. Advocate,Akash Mishra Hon'ble Saurabh Shyam Shamshery,J. 1. In present case, there is a dispute in regard to two wills, first dated 26.06.1969 which was registered on 27.06.1969 in favour of complaint (adopted son) of one late Sri Kunwar Bahadur and second an unregistered will in favour of applicants
Legal Reasoning
prima facie made out. Relying on the facts as discussed in 3 of 4 previous paragraphs, clearly no cogent case regarding a criminal breach of trust or cheating is made out.” 10. The Supreme Court has expressed its disapproval for imparting criminal colour to a civil dispute for purpose merely to take advantage of a relatively quick relief granted in a criminal case in contrast of a civil suit and held such exercise to be an abuse of process of law. 11. As discussed above, on basis of complaint, statement recorded before Magistrate as well as a civil suit is still pending wherein genuineness of will is under consideration, therefore, formation of opinion that there are sufficient grounds to proceed against applicants appear to be wrong and the criminal proceedings initiated against applicants are only for purpose of giving criminal colour to a civil dispute, therefore, it is nothing but an abuse of process of law. Material was collected during investigation, whereby, ingredients of offence of cheating i.e. intention to deceive as well as ingredients of forgery i.e. forging a will may be prima facie made out. 12. Accordingly, proceedings of Complaint Case No. 656 of 2005 (Basant Kumar vs. Shiv Kumar and others) under Sections 420, 467, 468 I.P.C., Police Station- Ikdil, District- Etawah, pending before Additional Chief Judicial Magistrate-I, Etawah, District- Etawah are hereby quashed. 13. Application stands allowed. Order Date :- December 9, 2022 Nirmal Sinha [Saurabh Shyam Shamshery, J.] 4 of 4 Digitally signed by NIRMAL SINHA Date: 2022.12.09 13:55:01 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
dated 25.12.2002 executed before Sri Kunwar Bahadur died on 29.12.2002. Civil suit is pending between applicants and opposite party No.2 on basis of will executed later on. 2. In these circumstances, complainant filed a criminal complaint against present applicants that subsequent unregistered will was a forged document, whereon investigation was conducted and charge sheet was filed against applicants, on which Magistrate took cognizance of offence and summons were issued against applicants under Sections 420, 467, 468 I.P.C. 3. Sri Anurag Shukla, learned counsel for applicants has submitted that since dispute is pending before a civil suit wherein genuineness of wills will be ascertained, therefore, criminal proceedings initiated against applicants by way of a criminal complaint are malicious and it was only in order to give criminal colour to a civil dispute. 4. Learned counsel submitted that impugned summoning order passed under Section 204 Cr.P.C. whereby applicants were summoned for allegedly committing offence under Sections 420, 467, 468 I.P.C. on ground that subsequent will was an unregistered will as well as it has no reference of earlier alleged will as well as the description of property also differs. Though it was brought on record that a civil suit is pending between parties, however, it was not considered. 5. The above submissions are opposed by Sri Akash Mishra, learned counsel for opposite party No.2 that second will was executed just few days before death of its executor who was not well at relevant time as well as he was not in a position to take a reasoned opinion about the will as well as it has no reference of earlier will and as such it was a forged document and Magistrate has rightly summoned the applicants. 6. In above background on facts as well as law and that both parties have placed reliance on a judgment passed by Supreme Court in Mitesh Kumar J. Sha vs. State of Karnataka and others, 2021 SCC Online SC 976 that there is no bar that on same occurrence, civil as well as criminal proceedings can be instituted. However, it has to be considered that whether a civil dispute has been given a cloak of criminal offence as well as whether ingredients of cheating and forgery are made out or not. 2 of 4 7. The complainant has set up a case before learned Magistrate that he was adopted son of late Sri Kunwar Bahadur and way back in the year 1969, a registered will was executed in his favour, however, adoption deed was not placed either before Magistrate or before this Court as well as that latter will was executed few dates before death of executor at the time when he was not in fit position further that it has no reference of earlier will. 8. It is not in dispute that presently parties have already relegated themselves to Civil Court where genuineness of subsequent will as well as first will are under question and since parties have already before Civil Court and genuineness of two wills is still be testified, therefore, basic ingredients of Section 415 Cr.P.C. that there must be a dishonest intention as well as offence of forgery in regard to will would be based on outcome of civil suit. Learned trial Court has not taken note of any evidence that subsequent will was signed by executor or not. 9. In Mitesh Kumar (supra) it was held that “Although, there is perhaps not even an iota of doubt that a singular factual premise can give rise to a dispute which is both, of a civil as well as criminal nature, each of which could be pursued regardless of the other. In the instant case, the actual question which requires consideration is not whether a criminal case could be pursued in the presence of a civil suit, but whether the relevant ingredients for a criminal case are even