IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION Nos.53414-416/2017 (GM-RES) BETWEEN:
1. SRI DHIRENDRA KUMAR R MEHTA S/O LATE RAMNIKLAL M MEHTA AGED ABOUT 55 YEARS 2. SMT MADHUBALA R MEHATA W/O LATE RAJEDNRA J JOSHI AGED ABOUT 60 YEARS, BOTH ARE R/AT NO.2869, 5TH MAIN, V.V. MOHALLA, MYSURU-570 002 ... PETITIONERS (By Sri. D R RAVISHANKAR, ADV.) AND:
1. NARENDRA P SHAH S/O LATE PASVIR LALCHAND SHAH AGED ABOUT 74 YEARS, R/AT NO.590, 4TH MAIN 3RD STAGE GOKULAM MYSURU-570 002 2. THE STATE BY SPP, BANGALORE. ... RESPONDENTS (By Sri.SANTHOSH NARAYAN AND Sri. M.N. NEHRU, ADVS. FOR R1 Sri. VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DTD.14.9.206 IN PCR.NO.2559/2015 LATER CONVERTED AS C.C.NO.2303/2016 ON THE FILE OF THE IV ADDL. I CIVIL JDUGE AND JMFC, MYSURU IN SO FAR AS THE PETITIONERS ARE CONCERNED VIDE ANNEX-J.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These three petitions are filed by the accused Nos.2 and 3 challenging the summons issued by the learned Magistrate directing them to face trial for the alleged offences punishable under Sections 120, 420, 463, 464 read with Section 34 of IPC.
2. The outline facts of the case are as follows:
One Taramati R Mehta was holding 25% share in the partnership Firm by name ‘The Star Aluminium Works’. During her life time, she is said to have executed a Will dated 30.01.2008. She died on 29.08.2009. Based on the above Will and Testament, the Firm was reconstituted and the grand son of the deceased Taramati R Mehta, Kalpesh V. Mehta was inducted as partner. A dispute having arisen between the partners, the same was referred for resolution by the Arbitrator and it is stated that an Arbitration Suit in A.S.No.126/2016 is pending. In the meanwhile, respondent No.1 herein filed a private complaint against the petitioners herein and one Kalpesh V Mehta (Accused No.1) alleging that the Will dated 30.01.2008 purported to have been executed by Taramati R Mehta was forged and concocted. On recording sworn statement of the complainant, the learned Magistrate issued summons to the petitioners as well as to accused No.1.
3. The learned counsel appearing for the petitioners has raised three fold contentions.
(i) Respondent has no locus standi to initiate criminal action against the petitioners based on the Will executed by late Taramati R Mehta. The complainant is neither a beneficiary nor an executor under the said Will. The beneficiaries and the legal heirs of the deceased executant have not disputed the genuineness of the Will. Respondent has no covetable interest in the bequests made therein. Even otherwise, the dispute raised by the respondent is a civil dispute which could be adjudicated only by a Civil Court and not by Criminal Court and therefore the prosecution of proceedings being illegal and opposed to law, are liable to be quashed.
(ii) The learned Magistrate has proceeded to issue summons to the petitioners without taking cognizance of the offence, contrary to Section 200 of Cr.P.C. In view of the specific mandate contained in the said Section, the learned Magistrate could not have proceeded to record the sworn statement and issue summons to the petitioners. This illegality has vitiated the entire proceedings.
(iii) Further, it is contended that the allegations made in the complaint do not prima facie disclose the ingredients of the offences punishable under Sections 120, 420, 463, 464 read with Section 34 of IPC. The only allegation made in the complaint is that the alleged forgery has taken place on account of the conspiracy hatched between the petitioners and other accused. There are no allegations that the petitioners herein had any criminal intent to forge the aforesaid document. They have not derived any benefit under the said document, nor is there any allegation that these petitioners had any criminal intention to cause loss to the complainant. The legal heir of the deceased testator has not challenged the bequests made under the said Will. In the said circumstance, the essential ingredients of the offence having not been made out, the issuance of summons to the petitioners is bad in law.
4. In support of the above submissions, learned counsel has placed reliance on the decisions of the Hon'ble Supreme Court in the case of Devendra and others Vs. State of Uttar Pradesh and another reported in (2009)7 SCC 495 and Sri.H.N.Ramegowda Vs. Nagegowda & others reported in 2016 SCC Online Kar 515.
5. Refuting the submissions, the learned counsel for the respondent argued that the allegations made against the petitioners in the private complaint squarely fall within the ambit of Sections 120, 420, 463, 464 read with Section 34 of IPC. There being prima facie material to show that the Will in question was forged and concocted, the learned Magistrate has rightly taken cognizance of the offence, as such, there is no ground to interfere with the impugned order. Insofar as the locus standi of the complainant to maintain the complaint is concerned, learned counsel placed reliance on the decision of the Hon’ble Supreme Court in the case of Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another reported in AIR 2005 S.C.2119.
6. Considered the submissions and perused the records.
7. In view of the second contention urged by the learned counsel for the petitioners that summons have been issued by the learned Magistrate without taking cognizance of the offence, I have carefully scrutinized the order sheet produced along with the petition. It reveals that the private complaint was filed on 06.02.2015 and on that day the same was put up before the learned Magistrate and the learned Magistrate passed an order directing the Office to check and put up the papers on 06.03.2015. On 06.03.2015 the Presiding Officer was on leave and on the subsequent date viz., 11.06.2015, when the matter was called, learned Magistrate passed the following order:
“For Sworn statement, call on 03.07.2015”.
Sworn statement appears to have been recorded on 03.07.2015 and by order dated 14.09.2016, the learned Magistrate issued summons to the petitioners. There is nothing in the order sheet to indicate that before recording the Sworn statement, the learned Magistrate has taken cognizance of the alleged offence. In this context, it may be relevant to refer to Section 200 of Cr.P.C. which reads as under:
200. Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.”
8. Reading of the above Section makes it evident that only upon taking cognizance of the alleged offence, the learned Magistrate could proceed to record the Sworn statement. Since the learned Magistrate has proceeded in the matter without taking cognizance, the proceedings conducted by the learned Magistrate are without jurisdiction and consequently, summons issued by the learned Magistrate being bad in law is liable to be quashed.
9. Coming to the 1st contention urged by the learned counsel for the petitioners that the respondent has no locus standi to initiate the criminal action against the petitioners based on the allegations of forgery and falsification of the alleged Will, it is relevant to note that the said Will is said to have been executed by one Taramati R Mehta. Under the said Will the grand son of the testatrix has been bequeathed with the share in the partnership assets. Neither the legal heirs of the testatrix nor any other person who are entitled in the assets of the testatrix have challenged the said Will till date. The complainant is not related to the petitioners. Even in the absence of the Will, he does not get any right or share in the properties and assets of the testatrix. In other words, he has no caveatable interest in the bequests made in the Will. In the said circumstance, the validity of the said Will could not have been challenged by the respondent even before the Civil Court for want of caveatable interest.
10. In that view of the matter, the dispute raised between the parties being purely civil in nature, can be adjudicated only by the Civil Court. The assumption of jurisdiction by the learned Magistrate, in the circumstances of the case is without jurisdiction and cannot be sustained. Consequently, the impugned order passed by the learned Magistrate and the summons issued to the petitioners are liable to be quashed.
Accordingly, the petitions are allowed. The summons issued to the petitioners in C.C.No.2303/2016 and all consequent proceedings arising therefrom on the file of IV Addl. 1st Civil Judge & JMFC, Mysuru, are quashed.
Sd/- JUDGE Dvr: