A Person is said to have made a `false document’, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. WRIT PETITION No. – 17783 of 2010
Petitioner :- Rajesh Gandhi And Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Santosh Srivastava, Karuna Srivastava Counsel for Respondent :- Govt. Advocate, Devendra Saini
Hon’ble Suneet Kumar,J.
Heard Mrs. Swati Agrawal, learned counsel for the petitioner, Mrs. Archana Tyagi, learned counsel for the second respondent and learned Additional Government Advocate.
The complainant is brother of applicant no. 1, whereas, applicant no. 2 is mother and applicant no. 3, 4, 5 and 6 are sisters of applicant no. 1 and complainant. The dispute, inter se, parties pertains to family settlement pertaining to the disputed property. The applicants are assailing the order dated 6 September 2010 passed by the revisional court/Additional Sessions Judge Court No. 3, Saharanpur in Criminal Revision No. 309 of 2010 (Rajesh Gandhi and other vs. State of U.P. and others) affirming the order passed by the Chief Judicial Magistrate, Saharanpur, in Complaint Case no. 589 of 2010 ( Rohit Gandhi vs. Rajesh Gandhi), whereby, the applicants have been summoned in a complaint case for offence under
Section 468, 506 IPC.
The complainant/opposite party no. 2, filed an application under Section 156(3) Cr.P.C. for offence under Sections 420, 467, 468, 471, 506 IPC which, the learned Magistrate treated as a complaint; upon recording statements under Section 200 Cr.P.C. and examining witnesses underSection 202, Magistrate summoned the petitioners herein, for offence under Section 468 and506. In revision, the order of the Magistrate has been affirmed.
The allegations against the petitioners is that on the strength of a registered power of attorney executed by the mother and her daughters (petitioners no. 2 to 6) in favour of her son/brother (petitioner no. 1) in respect of a property being plot no. 2 situated at Jai Prabha Nagar, Village Manakmau, Saharanpur, was being attempted to be sold, despite the petitioners having knowledge that the complainant is a co-owner. It is alleged that father of complainant died in 2003, the property in dispute being ancestral property, not yet partioned, therefore, the complainant is having a share, which fact is in the knowledge of the other petitioners.
The complainant-opposite party no. 2 would not dispute that a suit being Suit No. 145 of 2010 (Rohit Gandhi vs. Smt. Ram Pyari and others) was instituted by him before the Civil Judge (Senior Division), Saharanpur seeking permanent injunction restraining the defendant/petitioners from interfering in the peaceful possession of the disputed property, further, restraining the petitioners herein, from selling the disputed plot on the strength of the power of attorney. It is averred that complainant/plaintiff has 1/7 share in the property. The suit was contested by the petitioner/defendants by filing written statement alleging that their father was the owner of the property, but, during his life time by an oral family settlement partioned/settled the properties amongst his legal heirs. The complainant is having no share in the disputed property, and since partition he is residing separately.
In lieu of settlement their father transferred, by a registered sale-deed, a house, duly recorded in municipal records being house no. 2/896, in favour of the complainant, therefore, in view of the settlement effected by their father complainant would have no right or title or share in the disputed property.
The facts, inter se, parties are not in dispute, the learned counsel for the opposite party would not dispute that the complainant has already instituted a suit in respect of the property in dispute; that a power of attorney was executed by other co-owners in favour of the petitioner no. 1. The power of attorney would, however, not disclose that the complainant though being a legal heir is having no share in the property. The absence of such an assertion, according to the complainant would amount to forgery.
It is in this backdrop, the learned counsel for the petitioner would submit (i) the dispute is purely civil in nature, (ii) the ingredients of offence under Section 468, 506 is not made out on the face value of the complaint, (iii) criminal proceedings cannot become a mode for executing a decree which is yet to see the light of the day, therefore, the criminal complaint being malicious, vexatious, to bring about a settlement in respect of a property.
The learned counsel for opposite party no. 2/complainant would submit (i) the power of attorney executed by the petitioners no. 2 to 6 in favour of the petitioner no. 1 ousted the complainant, who is legal heir and a co-sharer of the property, (ii) the power of attorney has been executed with an intention to transfer the property to a third party, thus would cause loss to the complainant being a co-sharer of 1/7 share in the property, (iii) by excluding the name of the applicant being legal heir and co-owner of the property would show the criminal intent on the part of the petitioners to deprive the complainant of his share.
Rival submissions fall for consideration.
The question for determination is as to whether the allegations in the complaint constitute an offence under Section 468 and 506 IPC or in the alternative is the dispute, inter se, parties primarily civil in nature.
The complainant alleged in his application that his father Hansh Raj Gandhi died seven years ago, he is youngest amongst his siblings, father during his life time had not partioned the property, the complainant is residing separately, further, it is alleged that in an attempt to deprive the complainant of his right and share in the property, the petitioners conspired, thereby executing a power of attorney in favour of the petitioner no. 1 to deal with the property. Petitioner no. 1 intends to sell the property to a third party, whereas, the petitioners are aware and having knowledge that the complainant has a share in the property.
The application under Section 156(3) Cr.P.C. was filed on 18 January 2010 and immediately thereafter on 20 January 2010, complainant instituted a suit before the competent civil court on the same allegations, seeking decree for permanent injunction against the petitioners herein.
Jurisdiction under Section 482 Cr.P.C. has to be exercised with great care, while exercising jurisdiction, the court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, whether has been given a cloak of criminal offence. The criminal proceedings are not a shortcut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution, for the accused which is a serious matter. The jurisdiction under this section has to be exercised to prevent abuse of the process of the court or otherwise to secure ends of justice. (Vide: