J. Jawahar Suryakumar and R. Kannan vs State

V. Periya Karuppiah, J.—This petition has been filed by the Petitioners/A1 and A2 seeking for the quashment of the F.I.R. registered in crime No. 29 of 2008 on the file of the 1st Respondent police.

Heard Mr. V. Kathirvelu, learned senior counsel appearing for the Petitioners and Mr. L. Murugan, learned Government Advocate (criminal side) appearing for the 1st Respondent and Ms. Saravana Porchelvi, learned Counsel appearing for the 2nd Respondent.

The learned senior counsel appearing for the Petitioner would submit in his argument that the Petitioners are ranked as A1 and A2 in a complaint filed by the 2nd Respondent/defacto complainant in crime No. 29 of 2008 for the offences under Sections 468, 471, 420 I.P.C. along with 2 other accused on a complaint presented before the learned Judicial Magistrate, Shengottah in Crl.M.P. No. 2587 of 2008, which vas forwarded u/s 156(3) Code of Criminal Procedure.

He would further submit in his argument that the 1st Petitioner is a practicing Advocate and he has falsely said to have created a forged will of his junior paternal uncle viz., Mr. M. Arunachalam, who had passed away on 21.01.2004. He would further submit in his argument that the said junior paternal uncle of the 1st Petitioner had got a special affection over the Petitioner since the 1st Petitioner''s father died early and the 1st Petitioner was brought up only by the said deceased Arunachalam. He would further submit in his argument that the said Arunachalam had helped the 1st Petitioner and had executed a will on 05.11.2003 with regard to the agricultural lands.

He would further submit that after the death of the said Arunachalam, he had taken steps to change the patta by applying before the Tahsildar, Shengottah and the said Tahsildar had rejected his prayer, for which he has filed a civil Suit in O.S. No. 33 of 2008 before the District Munsif, Shengottah and it pending. He would further submit in his argument that the 2nd Respondent had very much aware of the execution of the will and the devolution of the property in favour of the 1st Petitioner but had subsequently come forward with the complaint in order to get at the property.

He would further submit in his argument that the 2nd Respondent/defacto complainant and others have been impleaded in the suit in O.S. No. 33 of 2008 and the said civil case is pending, which would decide the genuineness of the will and in the meanwhile, the 2nd Respondent had given a false complaint and it has been registered and investigation is being carried on.

He would further submit in his argument that when the case is pending before the civil forum, the Respondent police ought not to have proceeded with the investigation of the case and. they have to await the verdict of the civil forum to pursue further action. He would further submit that the witnesses signed in the will are very much apprehensive of a criminal case filed against the Petitioners and in the circumstances, the criminal complaint registered against the Petitioners have to be stalled and since, it has no legs to stand, it has to be quashed against the Petitioners.

He would cite a judgment reported in (2007) 1 MLJ 207 in between M. Ravi and Ors. v. Elumalai Chettiar for the proposition that no Court shall take cognizance of an offence described u/s 463 I.P.C., when such offence is alleged to have committed in respect of a document produced in a proceedings before any Court except on a complaint in writing. He would therefore, request the Court that the complaint given by the 2nd Respondent/defacto complainant is not sustainable in law and has no legs to stand.

The learned Government Advocate (criminal side) would submit in his argument that the complaint was given by the 2nd Respondent/defacto complainant to the learned Judicial Magistrate, Shengottah and it was referred to the 1st Respondent police for registering the case and do the investigation and submit the report u/s 156(3) Code of Criminal Procedure and therefore, the 1st Respondent has registered the complaint and no doubt, this Court has withheld the investigation and 1st Respondent is awaiting the orders of the Court and the 1st Respondent will obey the decision of this Court as to the continuance of investigation or to close the same, if the proceedings is quashed.

The learned Counsel appearing for the 2nd Respondent would submit in her argument that the 1st Petitioner was no doubt the elder brother of late Mr. Arunachalam, who functioned as Central Government Minister for sometime and the said Arunachalam has purchased a property of his own and during his life time, he has executed a consent letter in favour of the Indira Gandhi Educational Youth and Rural Development Trust, which is being managed by the 2nd Respondent and it is being run by the 2nd Respondent accordingly and the 2nd Respondent is visiting the said property, now and then and she is in absolute possession end enjoyment of the same as the owner of the above mentioned property.

She would further submit in her argument that late Mr. M. Arunachalam, during his life time has borrowed money from the State Bank of India for buying tractor by depositing the title deeds including the present property with a condition to repay the said amount on 17-1/2 yearly installments for a sum of Rs. 16,650/- and after his death, the loan has been rephrased by the bank and the 2nd Respondent herein required to pay a sum of Rs. 7,250/- for 84 months commencing from 28.03.2007. She would further submit that when the said loan was subsisting and the title deeds have been deposited by Mr. M. Arunachalam with the bank as stated above, it is curious to see that an unregistered will has been executed by Mr. M. Arunachalam in favour of the 1st Petitioner leaving his heirs including the 2nd Respondent and their children.

She would further submit in her argument that the said circumstances would go to show that the 1st Petitioner has created and fabricated the will with the active collusion of other persons and there have been a conspiracy in between the 2nd Petitioner /2nd accused and other accused viz., A3 and A4 to the effect that the property to be separated away from the 2nd Respondent by hook or crook and therefore, the 1st Petitioner has attempted to get patta from the Tahsildar and he failed in it, however, he had executed a registered mortgage in favour of the 2nd accused, who also very much knew about the defeat of title of the 1st Petitioner and got it executed.

She would further submit in her argument that apart from that, the 3rd accused had also entered into a mortgage on the same property and had created false document so as to enter in encumbrances list. It is also further submitted by the learned Counsel appearing for the 2nd Respondent that the 1st Petitioner has not stopped with them, but he had sold the property to the 4th accused for shame and nominal in order to deceive and cheat the 2nd Respondent/defacto complainant and the other legal heirs of the deceased M. Arunachalam.

She would also further submit that the 2nd Respondent having smelt the evil design of the 1st Petitioner, had published in various papers about her right over the property and warned the public not to indulge in any encumbrances over the said property and however the 1st Petitioner had mortgaged the property and sold the property without any title. She would also submit that the said further action on the part of the 1st Petitioner would go to show that he has got an intention to cheat and commit fraud against the 2nd Respondent by taking away the property from the legal heirs of the deceased Mr. Arunachalam and therefore, he had fabricated and created the will as if the late M. Arunachalam has executed the will in his favour.

She would further submit in his argument that the suit in O.S. No. 33 of 2008 pending on the file of the District Munsif, Shengottah is not for the declaration of his title, but with the prayer to direct the Tahsildar of Shengotta, to issue patta in his name. But, in the said suit, the 2nd Respondent and other legal heirs of late M. Arunachalam were not originally impleaded as parties and now only, the legal heirs of Late Mr. M. Arunachalam are sought to be impleaded and mere implication in the said suit will not decide the title of the said property in the said suit. Even otherwise the pendency of the said suit will not in any way conceal the offence committed by the 1st Petitioner and other accused against the defacto complaint and other legal heirs.

She would further submit in her argument that the existence of ''Indira Gandhi Education Youth and Rural Development Trust'' located at the disputed property would go to show that the falsity of the case of the 1st Petitioner that he was said to be in possession and enjoyment of the property as mentioned in an application seeking for patta in the mortgage deeds and the fraudulent sale deed executed clandestinely by him to the other accused.

She would further submit that mere pendency of any civil Suit will not eclipse the offence committed in the same cause of Action. It is the dictum laid down by Hon''ble Apex Court in various judgments. She would cite a judgment of Hon''ble Apex Court reported in (2008) 1 MLJ 235 (SC) in between Pratiba v. Rameshwari Devi for the said proposition of law. He would further submit in his argument that the investigation is offing, but for the stay granted by this Court and unless the investigation is being carried on and the charge sheet is filed on the basis of the investigation, the Petitioner and others will be emboldened and would cause further encumbrances over the said property so as to defeat the rights of the 2nd Respondent and other legal representatives,

She would further submit that the forgery of the will has been committed outside the Court and produced before the Court with an intention to wrongfully gain to his advantage and to cause wrongful loss to the 2nd Respondent. He would also submit that there is no necessity for the civil Court to make a complaint with regard to the forgery since the forgery was committed outside of the Court and the forged document was produced for supporting the claim of the 1st Petitioner for transfer of patta.

She would further submit that the pending civil Suit is no way can be an impediment to the criminal proceedings initiated by the private complaint and therefore, the decision of this Court as cited by the learned senior counsel appearing for the Petitioner would not be applicable to facts of the present case. The facts and circumstances as alleged in the complaint if unopposed would go to show that the Petitioners as well as the other accused have committed the offence and therefore, it cannot be stated that the Petitioners are not guilty of the offence as the civil Court alone is competent to decide the matter. Therefore, he would request the Court to dismiss the petition.

I have given anxious thoughts to the arguments advanced on either side.

The indisputable facts are that the property in dispute was originally belonged to one late Mr. M. Arunachalam, who was a former Union Minister of the Central Government. The property belonged to him by virtue of the sale executed in his favour on 15.11.2001 through the document No. 1147 of 2000 the Sub Registrar''s Office by Sivaraman and 7 others. The said late Mr. M. Arunachalam, Union Minister died on 21.01.2004 after a brief illness.

The 2nd Respondent is the defacto complainant and she is the wife of the deceased Mr. M. Arunachalam, The 1st Petitioner is none other that the elder brother''s son of Mr. M. Arunachalam. The said M. Arunachalam on his death left the 2nd Respondent wife and their children as legal heirs. However, the 1st Petitioner has claimed that the property was bequeathed in his favour by late M. Arunachalam on 05.11.2003 through an unregistered will and therefore, he claims that he is the owner of the said property by virtue of the said will.

The 1st Petitioner had applied for patta from the Tahsildar, Shengottah and he refused the transfer of patta and therefore, the 1st Petitioner has filed a suit in O.S. No. 33 of 2009 before the District Munsif, Shengottah seeking for directions against Tahsildar. The claim of the 2nd Respondent was that there was no necessity for executing any will by late M. Arunachalam in favour of the 1st Petitioner when the 2nd Respondent and their children are alive as legal heirs of late Mr. M. Arunachalam. It is also put forth that the late M. Arunachalam has given a consent letter to the 2nd Respondent to conduct Indira Gandhi Education Youth Rural Development Trust and the 2nd Respondent as Trustee is conducting the Trust in the said property. Similarly, there was a tractor loan obtained by late Mr. Arunachalam from State Bank of India by depositing the title deeds including this property and it is still subsisting.

The question posed by the 2nd Respondent in her complaint would be that if really the late Mr. Arunachalam has executed the will in favour of the 1st Petitioner, all these instances over the said property would have been disclosed in the unregistered will, but, since it was not aware by the 1st Petitioner, he could not refer the same in the will, because he has fabricated the said document. Yet another circumstance was pointed by the 2nd Respondent/defacto complainant was that it was an unregistered will and it could be created at any time with the help of his henchmen.

It is further contended by the 2nd Respondent/defacto complainant in her complaint that even after publishing that the defacto complainant and others have alone got right in the property and nobody should encumber the said property, the 1st Petitioner was indulging in creating encumbrances with 2nd Petitioner/2nd accused and 3rd and 4th accused. Therefore, the intention of the 1st Petitioner would be very clear that he intends to create encumbrances over the said property so as to get away the property from the hands of the 2nd Respondent and their children by means of fraud and deceitful means.

Having known the fact that there is a dispute in the said property, the other accused had contracted with the 1st Petitioner and have colluded together and there was a conspiracy in between the 1st and other accused. The case of the 2nd Respondent which has been explained and detailed in the complaint would go to show that there is s serious complaint comprising the offences committed by the Petitioners 1 and 2 along with other accused 3 and 4 to be probed further, if they are assumed unopposed.

It is the dictum of the Hon''ble Apex Court by way of various judgments that the face value of the complaint, if unopposed, should have been taken into consideration as to the maintainability of the complaint and if those allegations made therein are sustaining, then the offences are investigatable and to be proceeded by the police and the Court need not quash the complaint or F.I.R. as the case may be.

As far as this case is concerned, we have already seen that if the complaint as a whole is considered unopposed, would show the offences committed by the Petitioners as well as other accused. However, it has been argued that the civil Court concerned can give a complaint in respect of the offences committed u/s 463 I.P.C. And the judgment of this Court reported in 2001(1) MLJ 207 in between M. Ravi and Ors. v. Elumalai Chettiar, was relied upon. The relevant passage would run as follows:

Para 7. As per Section 195(b) (ii) of Criminal Procedure Code, no Court shall take cognizance of any offence described in Section 463 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court except on the complaint in writing of that Court. As rightly argued by the learned Counsel for the Petitioners, admittedly, the first Petitioner is the Managing Partner and the Petitioners 2 to 13 are merely partners in the company and complaint in C.C. No. 128 of 2001 also filed in respect of the dishonored cheque for Rs. 5,64,000/- by the first Petitioner alone against the Respondent wherein the said cheque has been filled.

The civil dispute pending before the District Munsif, Shengottah, in O.S. No. 33 of 2008 is in respect of grant of patta wherein the impugned will cannot be a subject matter to be decided in the said suit. Therefore, the aforesaid judgment of this Court is not applicable to the present case. However, the judgment of the Hon''ble Apex Court reported in 2008(1) MLJ 935 SC in between Pratiba v. Rameshvari Devi, the dictum has been laid down as follows:

Para 8... That apart, in our view, filing of a divorce petition in a Civil Court cannot be a ground to quash criminal proceedings u/s 482 of the Code as it is well settled that criminal and civil proceedings u/s 482 of the Code as it is well settled that criminal and civil proceedings are separate and independent and the pendency of a civil proceeding cannot bring to an end a criminal proceeding even if they arise out of the same set of facts. Such being the position, we are, therefore, of the view that the High Court while exercising its powers u/s 482 of the Code has done beyond the allegations made in the FIR and has acted in excess of its jurisdiction and, therefore the High Court was not justified in quashing the FIR by going beyond the allegations made in the FIR or by relying on extraneous considerations.

Para 9... For the reasons aforesaid, we are inclined to interfere with the order of the High Court and hold that the High Court in quashing the F.I.R. in the exercise of its inherent powers u/s 482 of the Code by relying on the investigation report and the findings made therein has acted beyond its jurisdiction. For the purpose of finding out the commission of a cognizable offence, the High Court was only required to look into the allegations made in the complaint or the FIT and to conclude whether a prima facie offence had been made out by the complaint in the FIR or the complaint or not.

Before parting with this judgment, we may also remind ourselves that the power u/s 482 of the Code has to be exercised sparingly and in the rarest of rare cases....

In the wake of the judgment of Hon''ble apex Court, I could see that the forgery, fabrication or creation of the will and the subsequent encumbrances said to have been clandestinely effected through a mortgage deed or sale deed with other accused have taken place outside the Court and therefore, the judgment of this Court that the Court alone is the competent person to give the complaint is not applicable to the present case.

The judgment of the Hon''ble Apex would go to show that the face value of the complaint alone to be seen for coming to a conclusion of deciding maintainability of the complaint. Moreover, the advice of the Hon''ble Supreme Court was to the effect that the power vested u/s 482 Code of Criminal Procedure Should have been exercised only in rare and rarest cases.

Therefore, the F.I.R. registered on the complaint given by the 2nd Respondent for the offences under Sections 468, 471 and 420 I.P.C. is not liable to be quashed. It is for the 1st Respondent police to proceed with the investigation and find the truth on the gathering of evidence and to file an appropriate final report.

For the foregoing discussions, I am of the considered view that the request of the Petitioners to quash the F.I.R. filed against them cannot be ordered. The investigation was stalled for sometime due to the orders of this Court. Therefore, it has become necessary for this Court to direct the 1st Respondent police to expedite the investigation and to file the final report on the basis of the investigation.

With the aforesaid observation, the petition filed by the Petitioners seeking for quashment of the F.I.R. in crime No. 29 of 2008 on the file of the 1st Respondent police is dismissed. Consequently, connected miscellaneous petition is also dismissed.