Neeraj Khajuria vs Kuldeep Khajuria

Rajnesh Oswal, J

The present petition has been filed by the petitioner for setting aside the order dated 24.12.2018 passed by the learned Principal Sessions Judge, Udhampur (hereinafter to be referred as the trial court) in challan, titled, State vs. Kuldeep Kumar, whereby respondent has been discharged for commission of offences under sections 420, 467, 468 and 471 RPC arising out of FIR bearing No. 273/2014 registered with Police Station, Udhampur at the instance of the petitioner.

It is stated that the petitioner and the respondent are the real brothers and the respondent hatched a conspiracy and with a fraudulent intention got a forged Will dated 12.06.2010 prepared in the name of their father-Madan Lal Khajuria and as per said forged Will, the whole of the property has been bequeathed to the respondent only. It is further stated that the Will was prepared by the respondent in a deceitful manner on 12.06.2010 and the respondent has managed to append the signatures of one Chet Ram on the said Will dated 12.6.2010 when admittedly, the said Chet Ram passed away on 14.04.2010 i.e. two months before the preparation of the Will.

The petitioner has impugned the order of discharge passed by the learned trial court in favour of the respondent, on the ground that the learned trial court has prejudged the controversy as it is settled law that the trial court, while considering issue of charge/discharge, has limited jurisdiction to sift the evidence and cannot critically appreciate the evidence while considering issue of charge/discharge.

Mr. Rajat Sudan, learned counsel for the petitioner has vehemently argued that the learned trial court had virtually appreciated the evidence while discharging the respondent and in fact the trial court had the limited jurisdiction to sift the evidence and could not have critically appreciated the evidence, that could have been done only at the time of final appreciation of the evidence.

Per contra, Mr. Sachin Sharma, learned counsel for the petitioner has vehemently argued that the petitioner has filed a civil suit against the respondent whereby the petitioner has impugned the validity as well as legality of the Will and further that the State is not a party in the petition, so this petition is required to be dismissed on this score only and the petitioner has no right to file revision.

Heard and perused the scanned record of the trial court.

From the record, it is revealed that the petitioner had filed an application before the Senior Superintendent of Police, Udhampur on 08.07.2014 in which it was stated that the father of the parties, namely, Madan Lal Khajuria besides having two sons i.e. parties herein, also had two daughters namely, Sunita Sharma and Sandhya Sharma, who never laid any claim to the property of the father. It was also stated that father of the parties had given part of his landed property to the petitioner as well as to the respondent. It was alleged that the respondent after hatching conspiracy with the friends prepared a fictitious Will dated 12.06.2010 in the name of his father in which it was stated that his father had desired to give the land mentioned in the Will falling under khasra numbers as detailed in the Will to the respondent exclusively. It was also stated that the signatures of the father on the Will were forged and Chet Ram had expired on 14.04.2010 i.e. two months earlier than the date of the preparation of the said Will.

On the basis of the complaint of the petitioner, FIR for commission of offences under sections 420, 467, 468 and 471 RPC was registered against the respondent. During the course of investigation, the Investigating Officer seized the alleged Will dated 12.06.2010 from the possession of the respondent. The Investigating Officer also obtained admitted handwriting documents of the deceased testator. During the course of the investigation, it was established that Chet Ram had already died on 14.04.2010 whereas the Will in question was allegedly prepared on 12.06.2010. Further another witness Pawan Kumar too had expired on 04.01.2017. The statement of the only witness who was alive namely, Raj Gupta was recorded under section 164-A CrPC and he disclosed that he had put these signatures on the alleged Will at the instance of the respondent who met him in the court where the respondent asked him to sign the document that was in Urdu claiming to be the Will of his father. During the course of investigation, it was established that the alleged Will was a forged document as the alleged signatures of the testator namely, Madan Lal did not match with the admitted signatures on the documents and charge sheet for commission of abovementioned offences was filed against the petitioner.

The learned trial court after hearing the arguments from both the sides, discharged the respondent for commission of offences under sections 420, 467, 468 and 471 RPC on the ground that the Investigating Officer did not obtain the signatures of the respondent and compared the same with the signatures on the Will and further that no effort was made by the respondent to use the said forged Will as the Investigating Officer did not collect any evidence on record to show that the respondent used the Will for the purpose of attestation of mutation and not even a single paper has been procured from the Revenue Department.

From the record, it is evident that the Will is forged in view of the opinion of the FSL dated 21.11.2016 in which it is stated that the signatures of Madan Lal on the Will marked as Q1 does not tally with the admitted signatures stamped and marked as A1 to A7 so from the opinion of the FSL expert, it is evident that the Will did not carry the signatures of the father of the parties. The learned trial court discharged the respondent on the grounds that there is nothing on record to demonstrate that the respondent forged the signatures of his father and that he used the said Will for the purpose of getting any benefit as no evidence was collected from the revenue authorities.

From the above findings, it is evident that the Investigating Officer has failed in his duty to arrive at positive finding as to whether the respondent has forged the Will and has obtained any benefit pursuant to that Will. In fact it was obligatory on the part of the Investigating Officer to have obtained the specimen handwriting of the respondent for the purpose of comparing it with the signatures appended upon the Will and also the Investigating Officer was under obligation to obtain requisite record from the Revenue Department as to whether the respondent had obtained any benefit out of the Will particularly when admittedly the Will was recovered from the possession of the respondent.

In the instant case, in order to ascertain truth it is necessary compare the signatures of the respondent and with the forged signatures and also to find out from the revenue authorities as to whether the forged Will has been used by the respondent or not and the trial court could not have discharged the respondent in view of the positive finding of the Investigating Officer that the Will was forged and the same was recovered from the possession of the respondent. This is a matter that requires to be investigated further and as such the order of discharge passed by the learned trial court is not sustainable.

The contention of Mr. Sachin Sharma that the State now the Union Territory has not been arrayed as party and as the challan has been filed by the then State, so the petitioner has no locus standi to file the present petition. It is true that the petitioner should have arrayed the State/Union Territory as party to the present petition but that is not going to affect the merits of the case. It requires to be noted that the FIR was registered at the behest of the petitioner and it was the petitioner who was the aggrieved party and it is well settled that the complainant can challenge the order of discharge of the accused. So, there is no force in the contentions of the respondent's counsel, the same are rejected.

In view of the aforesaid facts and circumstances, order of discharge dated 24.12.2018 is set aside and the matter is remanded back to the trial court. The Investigating Officer is directed to further investigate the matter in terms of the observations made by this Court hereinabove and file a supplementary report before the learned trial court within a period of three months from the date a copy of this order is made available to the Station House Officer/Investigating Officer.

Copy of this order be sent to SHO Udhampur for compliance.