1. Heard Mr. M.D. Singh 'Shekhar' learned senior counsel assisted by Mr. R.D. Tiwari for the petitioners, Mr. Rohitashav Chakraborty for the respondent no. 1 and learned AGA for the respondent no.1 and perused the record.
2. This is a petition under section 482 CrPC for quashing the proceedings of complaint case no. 22151 of 2010 (Km. Sunanda Ghosh vs. Debobroto Dutta & others), pending under sections 420, 467, 468 and 471 IPC in the court of Chief Judicial Magistrate, Allahabad.
3. Mr. M.D. Singh 'Shekhar' submitted that according to the averments made in the complaint,the dispute was of civil in nature, therefore, criminal proceedings against the petitioners was not maintainable. Learned counsel further submitted that no doubt in the original suit no. 747/2001, Smt. Madhuri Ghosh and another vs. Debobroto Dutta and another, the disputed will had been quashed but the appeal against the judgment of the lower court is still pending, therefore the judgment of the civil court had no relevance for passing the summoning order in favour of the respondent no.1. Mr. M.D. Singh 'Shekhar' next submitted that so long the civil suit was not decided finally, the initiation of criminal proceeding was not permissible in law. Mr. Shekhar lastly submitted that according to the facts and circumstances of the case the dispute was of civil in nature.
4. Learned AGA, on the other hand, submitted that no doubt there was a civil litigation to question the validity of the disputed will and the matter is still pending before the appellate court but this much fact was not sufficient to quash the proceedings of the criminal case. The facts stated in the complaint, prima facie, disclose criminal charges of forgery and cheating against the petitioners, therefore, learned Chief Judicial Magistrate was fully justified in passing the summoning order against the petitioners.
5. The following cases seem to be relevant for considering the controversy involved in the matter :
1.Syed Askari Hadi Ali Augustine Imam vs. State (Delhi Admn.), (2009) 5 Supreme Court Cases 528;
2.M/s Indian Oil Corporation vs. M/s NEPC India Ltd., & Ors. (2006) 6 SCC 736;
3.M.S. Sheriff & another vs. State of Madras & others, AIR 1954 SC 307.
6. In the case of Syed Askari Hadi Ali (supra), the Apex Court has held that 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. ................It is 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 ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. If primacy is to be given to a criminal proceeding, the civil suit must be determined on its own merit, keeping in view the evidence brought on record therein and not in terms of the evidence brought in the criminal proceeding.
7. In the case of M/s Indian Oil Corporation (supra), the Apex Court reiterated the aforesaid principles and held as follows:
"(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
8. In the case of M.S. Sheriff (supra), the Constitution Bench of the Apex Court held that the criminal matters should be given precedence. The Constitution Bench further observed that there is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. It was also held by the Apex Court that another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure, that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things glide till memories have grown too dim to trust.
9. The aforesaid decisions have settled the legal position that if the facts and circumstances of the case make out both criminal and civil liability, the civil proceeding as also the criminal proceeding can go on simultaneously and in that eventuality the criminal proceeding should be given primacy and, therefore, the criminal proceeding can not be quashed or dropped on account of pendency of the civil case.
10. The present case needs to be examined in the aforesaid legal background.
11. The relevant facts allegedly constituting criminal charges against the petitioners have inter alia, been specified in para 6 of the complaint, which is reproduced as follows:
"6. That the accused Nos. 1, 2 and 3 colluded with each other and dishonestly with intention to grab the said house, they prepared and manufactured the forged unregistered will in the name of late Ajit Kumsar Ghosh. The alleged WILL manufactured and prepared by the accused No.1 and 2 which is dated 4-6-20001 and which is unregistered and which has been prepared after the death of deceased Ajit Kumar Ghosh. The alleged will dated 4-6-2001 is a result of fraud and forgery played by the accused No.1 and 2 in collusion with accused No.3, the accused No.3 is witness in the said alleged forged Will. The alleged forged Will was manufactured by the accused Nos. 1, 2 and 3 with intention to get illegal gain after the death of deceased Ajit Kumar Ghosh."
12. It is therefore abundantly clear that allegations of preparing a forged Will for grabbing the property of Mr. Ajit Kumar Ghosh have been made in the complaint which prima facie disclose criminal charges against the petitioners. The offences under sections 467, 468 and 471 IPC pertain to forgery as defined in section 463 IPC, according to which, whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with any property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits "forgery". Section 464 IPC defines false document, according to which, a person is said to make a false document or false electronic record,-
firstly, who dishonestly or fraudulently, (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record, (c) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.......; or Thirdly, ?....... ."
13. Section 467 IPC provides for the punishment of the offence regarding forgery of the security, will etc., section 468 IPC deals with the punishment for committing forgery for the purpose of cheating and section 471 IPC provides for punishment regarding use of forged document or electronic record as genuine.
14. The contents of the complaint, if tested on the aforesaid touchstone, it can not be contended that the dispute is purely of civil in nature rather the complaint discloses criminal charges also against the petitioners.
15. The petition has no merit and is dismissed. However, keeping in view the nature of dispute and other facts and circumstances of the case it is provided that if petitioners Debobroto Dutta, Debo Priyo Dutta and Hari Mohan Srivastava appear before the Magistrate concerned within one month from today and apply for bail in the aforesaid case, their bail prayers shall be considered and disposed of by the courts below expeditiously, if possible on the same day in the light of the principles laid down by the Seven Judge Bench of this Court in Amrawati and another vs. State of U.P., 2004 (57) ALR 290, as affirmed by the apex court in Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (2) Crime 4 (SC).
Order Date :- 15.9.2011 RKSh