Maneesh Moudgil & Anr. vs The State N.C.T. Of Delhi & Anr.

This Court is called upon to adjudicate the present petition under Section 482 of the Code of Criminal Procedure, 1973^{11.Hereinafter “CrPC”}, wherein the petitioners are seeking quashing of FIR No.266/2021 dated 03.12.2021, registered at PS.: Vasant Vihar, New Delhi under Sections 420/406/467/471/120-B of the Indian Penal Code, 1860^{22.Hereinafter “IPC”} and all consequential proceedings arising therefrom.

As per FIR, the parents of the respondent no.2/ complainant^{33.Hereinafter “complainant”} and petitioner no.1 were residing at house No.33, Block-B, Surya Enclave, New Multan Nagar, Rohtak Road, New Delhi-110 056^{44.Hereinafter “Multan Nagar property”}, which consisted of ground floor and first floor built up on a plot measuring 225.94 sqm. The said property was purchased from the funds/ monies received from sale of ancestral property and combined savings of their parents. The complainant resided therein until her marriage in the year 1998, whereafter though the mother of the complainant and petitioner no.1 passed away on 20.01.2009, however, in the years that followed, the petitioner no.1 got himself allotted an official accommodation in Delhi and relocated his father Dr. Dev Kumar therein on medical grounds. Soon thereafter, Dr. Dev Kumar suffered a massive stroke, first in a long series of health setbacks that would eventually include catheterization surgeries, chronic hyponatremia, and prolonged dependence on medication. Taking advantage of his father’s deteriorating health, the petitioner no.1 took control of his bank accounts and financial affairs and persuaded him to sell Multan Nagar property on 20.11.2017 for a sale consideration of Rs.14 crores. Since the proceeds thereof were handed over to the petitioner no.1, he proposed to reinvest it into another property, a proposal which was acceptable to both Dr. Dev Kumar as also the complainant, however, on the condition that the new property be registered either solely in their father’s name or jointly among all three of them.

Thereafter, the petitioner no.1 identified a property being Ground Floor and Basement of House no.53, Paschimi Marg, Vasant Vihar, New Delhi-110 057^{55.Hereinafter “Vasant Vihar property”} and on 17.10.2018 got registered the Ground Floor therein (registration no.5177, Book No.1, Volume No.830, pages 127-143) from M/s. Heritage Holiday Private Limited, jointly in the names of Dr. Dev Kumar, petitioner no.2 (wife of petitioner no.1) and himself thereby substituting the complainant’s name with that of the petitioner no.2.

Further, on 26.03.2019, petitioner no.1 got executed an Agreement to Sell for the Basement of the Vasant Vihar property from M/s. Heritage Holiday Private Limited, once again in the joint names of Dr. Dev Kumar, petitioner no.2 and himself as also got a General Power of Attorney executed in favour of the petitioner no.2 alone on 12.04.2019 from M/s. Heritage Holiday Private Limited. Execution of both the aforesaid documents is alleged to have been concealed not only from the complainant but also from Dr. Dev Kumar.

Also, Dr. Dev Kumar’s health continued to decline sharply through 2018 and into 2019, when he underwent a rectal examination and further surgery for chronic constipation. By April-May 2019, his condition had become severe with episodes of memory loss, disorientation, hallucinations, and volatile mood swings. As such, the petitioner no.1 urged the complainant to stop taking her father’s calls, even as he tried to reach out to her as often as fifteen to thirty times a day.

Thereafter, on 30.10.2019, Dr. Dev Kumar was admitted to Hospital, but despite diagnosis of PS-4 (Stage IV) cancer and his fragile condition, the petitioner no.1 got him discharged from the Hospital in the evening of 03.11.2019 and took him to the office of the Sub-Registrar on 05.11.2019 at approximately 01:09 PM, and dishonestly and fraudulently got registered a Will in his name. At that time, and given his medication and diminished mental capacity, the said Dr. Dev Kumar was in no mental or physical state to understand/ comprehend the details.

Soon thereafter, owing to his deteriorating medical condition Dr. Dev Kumar passed away on 13.12.2019. During the subsequent months, the complainant noticed the petitioners gradually withdrawing from her as also from family gatherings. Eventually, the complainant heard rumours from her relatives that the petitioners were describing themselves as the sole heirs to Dr. Dev Kumar’s estate and as per the forged Will claimed that 1/3^rd share of Dr. Dev Kumar in the Vasant Vihar property had passed onto the petitioner no.1 and the petitioner no.2 also separately held 1/3^rd share of her own.

As such, the complainant issued a public cautionary notice in a newspaper on 21.07.2020 asserting her rights in the property and warning the public against any dealings qua the said property as also filed corresponding objections with the Sub-Registrar. On 18.08.2020, she also sent a Legal Notice to the petitioners. In response thereto, vide their reply dated 03.09.2020, though the petitioners acknowledged that the Ground Floor and Basement of the Vasant Vihar property had been purchased jointly by Dr. Dev Kumar and both the petitioners against loan, however, made no mention at all of the Agreement to Sell and/ or General Power of Attorney concerning the Basement thereof.

The aforesaid led the complainant to file a written complaint with the SHO of PS.: Vasant Vihar on 17.01.2021, however, since no FIR was registered earlier, it was only registered after she filed an application under Section 156(3) of the CrPC before the learned Chief Metropolitan Magistrate on 27.11.2021.

The petitioners filed the present petition on 17.01.2022. The learned senior counsel for petitioners submitted that the present FIR is liable to be quashed at the very outset on the following grounds:-

Per contra, learned senior counsel for the complainant made the following submissions:-

Learned APP supporting the case of the complainant submitted that since the present matter involves disputed questions of facts requiring proper appreciation of evidence and since they are beyond the scope of adjudication in the present petition, the present petition is liable to be dismissed.

This Court has heard learned senior counsels for the petitioners and complainant as also the learned APP and gone through the materials placed on record as also the judgments cited at Bar.

Interestingly, at the outset, it is to be noted that the petitioners have approached this Court by way of the present petition barely within 45 days of registration of the present FIR. As such, the grounds raised by the petitioners in the present petition are primarily pertaining to contents thereof. It is also relevant to note that the chargesheet has also been filed before the learned Trial Court thereafter during the pendency of the present petition.

It is trite that while dealing with a petition like the present one wherein someone like the petitioners herein seek quashing of an FIR and the investigation pending therein, this Court has to be mindful of the fact that the inherent jurisdiction under Section 482 of the CrPC is to be exercised sparingly, with considerable circumspection, caution and care, and is not to be invoked as a matter of course. Recourse thereto by someone like the petitioners herein can only be taken where continuation of the criminal proceedings would itself amount to an abuse of the process of law, or where the allegations contained in the FIR, even if accepted in their entirety, do not prima facie disclose commission of a cognizable offence.

It is also trite that while dealing with such a petition wherein someone like the petitioners herein seek quashing of the FIR and other subsequent proceedings arising therefrom, this Court is not to conduct a mini-trial by appreciating the evidence, assessing probabilities, and/ or weighing the credibility of witnesses and documents nor to venture into examination of the disputed questions of fact as such an exercise squarely falls within the domain of the learned trial Court.

This Court, finds able support in the celebrated judgment passed by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal^{1414.1992 Supp (1) SCC 335}, wherein the governing principles applicable to quashing of an FIR has been specified after analysing the same in detail, which, for ease of reference are reproduced as under:-

[Emphasis Supplied]

In fact, thereafter also the Hon’ble Supreme Court in Rajiv Thapar vs. Madan Lal Kapoor^{1515.(2013) 3 SCC 330} has, once again, while dealing with the very same issue of quashing of an FIR, emphasized and laid down certain additional steps for a High Court to consider in determining the veracity of a prayer for quashing of proceedings. These steps rest on the understanding that a High Court is not barred from looking at material produced by the accused, provided it is of sterling and impeccable quality to persuade a reasonable person to reject, dismiss and condemn the allegations levelled as false. It is only then that the High Court’s judicial conscience would be persuaded to use its inherent powers under Section 482 of the CrPC to quash the proceedings, preventing abuse of the process and securing the ends of justice. The relevant extracts thereof are reproduced as under:-

[Emphasis Supplied]

Also, in continuance thereof, this Court finds that the Hon’ble Supreme Court has thence in a recent decision in CBI vs Aryan Singh and Ors.^{1616.(2023) 18 SCC 399}, observed that at the stage of exercising inherent powers under Section 482 of the CrPC, the Court is not required to conduct a mini-trial as it is only required to ascertain if there exists a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. The relevant extract thereof is reproduced as under:-

[Emphasis Supplied]

Taking the aforesaid settled position of law, the moot issue arising herein for determination is “Whether the factual matrix involved, coupled with the case set up by the petitioners are themselves sufficient for this Court to proceed with quashing of the FIR and investigation pending therein?”

Adverting to the facts involved herein, it is an admitted fact that much water has flown since filing of the present petition, more so, as not only the charges have been framed but also prosecution evidence is being led therein before the learned Trial Court after conclusion of investigation.

Be that as it may, in a nutshell, the case herein as reflected from a bare perusal of the FIR is that the deceased: one Dr. Dev Kumar, who is survived by his son: the petitioner no.1, his daughter-in-law: the petitioner no.2 and his married daughter: the complainant, was allegedly not in the best of his physical and medical condition since long, and had also been diagnosed with Stage PS-IV Cancer in the year 2019, and it was on and around the same period that various documents like the Sale Deed dated 17.10.2018, the Agreement to Sell dated 26.03.2019, the General Power of Attorney dated 12.04.2019 and also his Will dated 05.11.2019 were, allegedly, executed.

In essence, the FIR raises concerns over the allegations of alleged cheating, forgery, misrepresentation and criminal breach of trust against the petitioners, which, is taken on their face value and accepted in the said form as they are, are in itself sufficient for this Court to hold that there is indeed a probability of constitution of the said offences as alleged, particularly, since they are neither absurd nor inherently improbable. As such, it cannot be said that there are no grounds for proceeding against the petitioners in the present FIR.

Even otherwise, the contents thereof have been followed up by investigations, the statements of the numerous witnesses, and the filing of the charge sheet, to which the petitioners have not made any assertions and/ or raised any grounds in challenge thereto, and what has been addressed are lengthy final arguments and written synopsis therewith. In any event, this Court is proceeding to consider the oral assertions based on the voluminous documents filed, albeit within the scope of Section 482 CrPC.

The dispute sought to be raised by the petitioners on the basis of the assertions made and the grounds raised herein, coupled with the arguments addressed by learned senior counsel for the petitioners in support thereof, are all primarily based on documentary evidence, and whence there is a prima facie basis for proceeding, the same has little significance. Even otherwise, the documents sought to be relied upon by the petitioners are yet to face the test of trial and going by their very nature, they can only be proven through an expert opinion of qualified professionals, largely Doctors.

As a matter of fact, learned senior counsel for the parties have extensively placed reliance upon plethora of documents pertaining to the medical reports(s)/ reply(ies)/ opinion(s) of and qua Dr. Dev Kumar health issued by Dr. Kaushal Kalra; Dr./ Prof. Anup Kumar; Dr. Manushree Gupta; Dr. Neera Chaudhary; Medical Superintendent Fortis Hospital; Brigadier In-Charge Administration R & R Hospital; medical history of Dr. Dev Kumar; Dr. Kaushal Kalra; and Dr. Puneet Dwivedi, to name a few. All these documents, admittedly, have been filed only before this Court subsequently, and from time to time during the pendency of the present petition, and which are, no doubt, yet to stand the test of trial.

Similarly, learned senior counsel for the parties have also extensively placed reliance upon another set of documents being the correspondences exchanges during the said time, including various e-mails exchanged from time to time between the family members of the petitioners and the complainant; WhatsApp Message(s) dated 17.10.2018 sent by the Petitioner No.2 to the Complainant; dated 24.02.2019 sent by Petitioner No.2 to the Complainant; dated 06.03.2019 sent by Complainant to Petitioner No.2; dated 15.04.2019 sent by Complainant to Petitioner No.2, to name a few. Once again, all these documents, admittedly, have only been filed before this Court subsequently, and from time to time during the pendency of the present petition, and which are, no doubt, yet to stand the test of trial.

Even otherwise, the petitioners have not been able to prima facie show any material(s) which is/ are of such sterling and impeccable quality that would lead this Court to a conclusion that continuation of the present criminal proceedings would be an abuse of the process of law. In fact, the rival versions put forth by learned senior counsel for both the sides, wherein disputed questions of facts have been raised involving allegations of cheating, forgery, misrepresentation and criminal breach of trust, are cognizable offences, the present is a fit case for proceeding with the trial.

Lastly, though the present FIR is arising out a family discord inter se the two siblings about the estate left behind by their late father, however, as held by the Hon’ble Supreme Court in Amit Kapoor vs. Ramesh Chander^{1717.(2012) 9 SCC 460} that where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. Therefore, there is no absolute bar on filing of a criminal complaint and/ or proceeding with registration of the FIR by the complainant against the petitioners.

In light of the aforesaid factors, in the considered opinion of this Court, based on the factual matrix involved, as also what has followed thereon, and based on the aforesaid findings and analysis, the petitioners have not been able to make out a case for quashing of the present FIR and the investigation pending thereunder.

Accordingly, the present petition, alongwith the pending applications, is dismissed, with no order as to costs.

Needless to say, observations, if any, on the merits of the matter are for the limited purpose of adjudication of the present petition and shall have no bearing on the overall proceedings involved.

A copy of this judgment be sent to the concerned Trial Court for information.