Karamjit Singh vs Kaushalya Devi

S. K. Jain, J.

One Balwant Singh, who owned, land in villages Ahrwan and. Ratia, district Hissar, died 56 years back leaving behind Smt. Kaushalaya Devi his widow (second wife), and his son Karamjit Singh and daughter Amrit Kaur (from his previous wife). All three of them inherited the estate of Balwant Singh in equal shares. Karamjit Singh in conspiracy with Teja Sing Lambardar of village Ahrwan, since deceased, and Malkiat Singh lodged Report No. 45 dated 6101979 with Patwari Halqa Ahrwan to the effect that Smt. Kaushalya Devi had died. On the basis of the said Report, Mutation of inheritance of Smt. Kaushalya Devi bearing No. 497 was entered by the village Patwari in favour of Karamjt Singh on 8101979. The said mutation was sanctioned by the Assistant Collector IInd Grade in presence of said Karamjot Singh, who was identified by Teja Singh Lambardar, on 18101979. On the strength of the said mutation, Karamjot Singh sold the land of the share of Smt. Kaushalya Devi which was owned and possessed by her at village Ahrwan vide sale deed No. 3393, executed and registered on 13111979 in favour of Malkiat Singh even though Karamjt Singh as well as Malkiat Singh very well knew that she was very much alive.

Again, Karamjot Singh in conspiracy with his wife Smt. Kasturi Devi, Sadhu Singh Lambardar of village Ratia, Dhanwant Singh and Karam Narain etc., residents of Ratia, fraudulently and mala fide, without the knowledge and consent of the complainant Smt. Kaushalya Devi, got sale deed dated 3.11.1982, executed in respect of the land of Smt. Kaushalya Devi at village Ratia, in favour of his wife Smt. Kasturi Devi, by producing a lady other than Smt. Kaushalya Devi, who represented herself to be Kaushalya Devi.

Having come to know of the fictitious sale of her land at village Ratia, Smt Kaushalya Devi filed Civil Suit No. 226 of 1983, titled Smt. Kaushalya Devi v. Kasturi Devi, for possession of the said land. It was decreed by the civil Court on 21111985. Appeal filed by Smt. Kasturi Devi against the said judgment was dismissed by District Judge, Hissar. Regular Second Appeal was also dismissed by the High Court. The complainant reserved her right to criminally prosecute the accused in that regard after the expiry of the period of limitation for filing appeal in the Supreme Court against the judgment of the High Court.

About four months prior to the filing of the complaint, when Mahabir Singh had gone to Patwari Halqa to obtain Fard of the land of Smt. Kaushalya Devi at village Ahrwan, he came to know that in respect of the said land mutation of inheritance had already been sanctioned in favour of Karamjot Singh and that he had sold it to Malkiat Singh & Mahabir Singh informed Smt. Kaushalya Devi accordingly.

On the above allegations, Smt. Kaushalya Devi had filed a complaint bearing No. 2591 of 2441989 in the Court of Judicial Magistrate Ist Class, Fatehabad, against Karamjot Singh and Malkiat Singh under sections 420/466/467/468/471/120B of the Indian Penal Code. The learned Magistrate, after examining preliminary evidence of the complainant came to the conclusion that a prima facie case for summoning the accused under sections 418/466/467 and 471, Indian Penal Code, was made out and, therefore, vide his order of May 10, 1990, summoned them.

Through this petition under section 482 of the Code of Criminal Procedure, Karamjot Singh has sought the quashment of the complaint dated 2441989 (Annexure L) and the order of May 10, 1990 (Annexure P2) on the grounds

i) that the liability, if any, arising out of the allegations made in the complaint was of civil nature and, therefore, the learned judicial Magistrate had legally erred in summoning the accused;

ii) that the accusations made in the complaint, even if accepted to be true on their face value, do not constitute any offence nor there is any legal evidence on the record on the basis whereof the Judicial Magistrate could summon the accused :

iii) that the preliminary evidence relied upon by the learned Judicial Magistrate in summoning the accused did not constitute evidence, much less legal evidence, warranting the issuance (summoning) of the accused;

iv) that the allegations made in the complaint are absolutely false and intended not only to denegrade the image and reputation of the accused but, also to cause harassment, expense and agony of a trial initiated by the complainant and was calculated to be used as an instrument of pressure on the petitioner to give up his right in the property; and

v) that the complaint had been filed with mala fide intention and the order (Annexure P2) and all the subsequent proceedings tantamount to an abuse of the process of the Court.

On being served, the respondent contested the petition. Reply has, been filed.

I have, heard the learned counsel for the parties.

Mr. Mehta, the learned counsel for the petitioner, has argued that the dispute between the parties was of a civil nature that this fact is evident from the copy of the Civil Suit (Annexure P) vide which the complaint had sought a decree for possession on the basis of title and further a declaration that Report No. 45 of 6101979 in the Roznamcha Waqiati Mutation No. 497 sanctioned on 18.10.1979, and the entries in the Jamabandi and other relevant record on the basis of the said mutation were wrong, baseless and had been made as a result of fraud and misrepresentation with a view to cause loss to her and to benefit the defendants and the same were not binding on her. The learned counsel has further submitted that on the same allegations the complaint (Annexure P1) has been filed The decision of the civil court being binding on criminal Court the said complaint was liable to be quashed as the criminal proceedings are abuse of the process of the Court.

In reply, the learned counsel for the respondent has submitted that the complaint (Annexure P) was instituted on 2441989 and vide order dated 10.5.1990 (Annexure P2), the petitioner and his coaccused were summoned for 1461990; that the petitioner did not choose to get the said complaint and the summoning order quashed by this Court till 12121991, when the present petition was instituted; that it was only after the institution of the civil suit (Annexure P3) that he filed the present petition u/s. 482 of the Code of Criminal Procedure; and that the criminal, complaint and the civil suit could proceed side by side. Therefore, this petition deserves dismissal.

It is evident that the present petition was filed more than 21/2 years after the institution of the complaint (Annexure P1) and after two years of the passing of the summoning order (Annexure P2). I have carefully examined the judgment re : Tek Chand and others v, State of Haryana and others, 1991 (1) Chandigarh Law Reporter 38(SE), cited at the bar by the learned counsel for the petitioner in support of his argument, but it is of no help to him. From a reading of the whole of the judgment it is clear that the accused had been summoned and served in the complaint case prior to the institution of the suit and charge had been framed four years after the institution of the complaint, but, in the case in hand, the petitioner was summoned in the criminal complaint 21/2 years prior to the institution of the suit. The second judgment re : M/s Karamchand Ganga Pershad and another v. Union of Indian and others, AIR 1971 SC 1244, relied upon by the learned counsel for the petitioner is also of no avail to him. In that case maize was exported by the dealers from one State to another. The case property was forfeited on the ground the export was banned by order issued under the Essential Commodities Act Criminal prosecution of the dealers was also launched. The dealers filed writ petition challenging the forfeiture on the ground that the ban was lifted at the time of export. The High Court dismissed the petition in view of the pendency of criminal proceedings. Under those peculiar circumstances the Supreme Court had held that the High Court after entertaining the writ petition and hearing arguments on the merit of the cast should not have dismissed the petition merely because certain consequential proceedings had been taken on the basis that the exports in question, were illegal. For the decision of the controversy between the parties to the writ petition neither the presence of the State of Best Bengal nor the authorities who took penal action was necessary. The validity of the steps taken by them was held to be dependent upon the validity or otherwise of the export in question. So, the circumstances of the said Supreme Court case are tangent apart from those involved in the case in hand.

Still another authority relied upon by the learned counsel for the petitioner, re : Sardool Singh and another v. Smt. Nasib Kaur, 1987(2) Punjab Legal Reports and Statutes 633, has also been examined by me. In the abovesaid case, a civil suit between the parties was pending wherein the contention of the respondent was that no Will was executed where as the contention of the appellants was that a Will had been executed by the testator. The case for grant of probate was also pending in the Court on the question as regards the validity of the Will. The matter was sub judice in the aforesaid two cases. In civil Courts. Under these circumstances, it has held that the respondent could not, therefore, be permitted to institute criminal proceedings on the allegation that the Will was forged one. But in the case in hand, the complaint (Annexure P1) was instituted and order (Annexure P2) had already been passed. Admittedly, the civil suit (Annexure P3) was not pending at both the points of time and, therefore, the abovesaid judgment does not in any manner help the petitioner.

I have also examined the judgment of the Calcutta High Court, tendered in Rajendra Kumari Ruia v. State of West Bengal, 1969 Crl. L.J. 243, on which great reliance has been placed by the learned counsel for the petitioner in support of his submission. This judgment again is of no avail to him. In this case, it was held that where an accused is charged with criminal breach of trust with regard to certain items and the question of civil liability with respect to those items has been determined by a competent Court, the judgment of that Court would be the best evidence of the civil rights of the party and as such the complaint ought not to be proceeded with during the pendency of the civil proceedings by way of appeal. If the civil proceedings had terminated determining the civil rights in favour of the accused, the criminal proceedings must be dropped since its continuation will be an abuse of the process of the Court. There can possibly be no quarrel with the proposition of law laid down in the abovesaid judgment because there during the pendency of the criminal proceedings the civil Court had already decided the civil rights in favour of the accused and appeal from the said decree was pending. Under those circumstances, it has held that the criminal proceeding must be dropped. But herein, as mentioned earlier, the petitioner" was summoned in the criminal proceedings 21/2 years prior, to the institution of the civil suit. Therefore, the abovesaid ratio cannot be granted on the facts of this case.

In Major Singh and others v. The State of Punjab, 1985(2) P.L.R. 428, this Court had held that on the points which were subjectmatter of the chargesheet in the criminal case having already been decided by the civil court, the decision of the civil court being binding on the criminal court, criminal proceedings were liable to be quashed. Therefore, this judgment also does not help the petitioner

Learned counsel for the complainantrespondent, on the other hand, contended that where criminal offence as well as civil wrong is constituted by the same set of facts, then there is no legal impediment in continuance of parallel proceeding''s for the same.

There is no dispute regarding the legal position that both civil as well as criminal proceedings can continue side by side for the same set of facts giving rise to cause of action under the civil law as also under the criminal law. There is also no dispute that the judgment of the civil Court between the parties on the same controversy is binding on the criminal Court. Admittedly, the decision of the civil Court which might be given in the civil suit (Annexure P3) shall directly involve the determination of the controversy whether Report Roznamcha Waqiati No. 45, dated 6.10.1979, Mutation No. 497 sanctioned on 18.10.1979 and the Jamabandi entries on the basis of the said mutation, were legally made or were the result of misrepresentation'' and fraud played by Karamjot Singh in conspiracy with Malkiat Singh and the deceased Lambardar. The gravamen of the charge of the offence under sections 420/466/467/468/471 and 120B, Indian Penal Code on the criminal side is based on the misrepresentation and fraud on the part of the petitioner. Yet, all the same, quashing of the criminal proceedings in the above referred offences is not called for as the complainant may decide to withdraw the civil suit at some point of time from the civil Court.

Tin holding the above view, I am fortified by the ratio laid down in Vijay Kumar and anr. v. State of Punjab and Ors., 1991(2) Recent Criminal Reports 220.

It is also evident that as per the allegations in the complaint the above referred offences are ex facie made out if the Report Roznamcha Waqiati, the Mutation and the Jamabandi entries are proved to have been procured as a result of fraud and misrepresentation. Thus, the said fraud and misrepresentation is a matter of evidence to be gone into by the trial Court. However, keeping in view that the judgment of the civil Court is binding on the criminal Court on these points, it is directed that the final order by the trial Court in the complaint case shall either be passed simultaneously with the civil Court or after the decision of the civil Court in the civil suit (Annexure P3). It is also directed that the complaint case as well as the civil suit be tried by the same Judge exercising civil and criminal powers.

For the reasons recorded, except for the above referred directions, there is no merit in this petition which is ordered to be disposed of accordingly.