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Judgment
Vinod Prasad, J.—This is an unfortunate case where three siblings brothers along with their spouses are fighting with each other for the property dispute. Respondent No. 2 Vinod Kumar Verma is a set up ploy for harassment of the family of the rest of the two brothers. Because of the dexterity and vexatious prosecution, a couple sibling Bindu Bihari Verma and his wife and another brother Ram Asray Verma have approached this Court u/s 482 Cr.P.C. through this Criminal Miscellaneous Application with the prayer that the proceedings of Case No. 1403 of 2006, State v. Ram Asray Verma for offences under Sections 419 420 467 and 468 IPC, Police Station Kotwali, District Jaunpur, pending before Chief Judicial Magistrate, Jaunpur along with the impugned order of cognizance and summoning order dated 10.2.2006 be quashed.
Abbreviated facts are that Ram Asray Verma (applicant No. 1), Bindu Bihari Verma (applicant No. 2) and Nanhey Lal Verma are uterine brothers all sons of late Panna Lal. Bindu Devi is the wife of Ram Asray Verma, Lalti Devi is the wife of Nanhey Lal Verma and Urmila Devi is the wife if Bindu Bihari Verma. According to the case of the informant, respondent No. 2 adumbrated in his application u/s 156(3) Cr.P.C, which was registered as an FIR under the orders of the C.J.M., Jaunpur as Crime No. 24 of 2005, under Sections 419 420 467 and 468 I.P.C., Police Station Kotwali, District Jaunpur, vide Annexure No. 5, to the appended affidavit, are that the informant respondent No. 2 Vinod Kumar Verma is the son of Ramjeet Seth and was very well acquainted with the deceased father Panna Lal Verma. Regarding the parental property, family feud started between the three brothers in which a family settlement was executed on 19.8.2003. Respondent No. 2 Vinod Kumar Verma and Narayan Prajapati singed on the said deed as witnesses, and ultimately the said settlement deed was got notarized from Sunil Kumar Asthana Advocate. To this effect Narayan Prajapati even filed an affidavit in the Court of Civil Judge, Senior Division.
According to the prosecution version, the three brothers had purchased two houses, got it demolished and got one big house constructed with basement ground floor and first floor. Basement and ground floor were to be utilized for the commercial purposes by opening of a jewellery shop in the name of Kirti Kunj Jewellers. First floor and second floor were to be utilized for residential purposes by the three sibling brothers. The business was to be carried by Nanhey Lal Verma with Urmila Devi and Lalti Devi as its partners. A dispute arose between brothers regarding the share in the property and therefore, applicant Nos. 2 and 3, namely, Bindu Bihari Verma and Smt. Urmila Devi instituted O.S. No. 589 of 2005 in the Court of Civil Judge, Senior Division, Jaunpur on 8.12.2003 vide Annexure No. 2 to the appended affidavit.
In the said suit the above mentioned family settlement dated 19.8.2003 (Annexure No. 1) was filed. According to the case of the informant respondent No. 2, Vinod Kumar Verma vide his FIR, Annexure No. 5 is that after signing the said family settlement, he went to Bombay in 2003 to be returned on 3.9.2005 to district Jaunpur and on his return he came to know that another affidavit denying his signature on the family settlement has been filed in the original suit by the applicants. It is mentioned in the said affidavit that no family settlement was reached and the signature of the informant and Narayan Prajapati were obtained on blank papers on which the family settlement was scribed. Informant had not given any such affidavit denying signing on the blank paper, which was utilized as family settlement.
According to his version, the three applicants here got his signature on a blank paper on the pretext of mutating their names in the revenue records on the basis of family settlement and on that blank paper then prepared a false affidavit of the informant with contents .denying the said family settlement along his photo. They also got the signature of the informant on a register by deceiving him on the aforementioned pretext. When the informant came to know of it, he moved an application u/s 156(3) Cr.P.C. on 25.9.2003 on the basis of which, FIR Annexure No. 5, was registered at the Police Station Kotwali, District Jaunpur as Crime No. C-24 of 2005 for offences under Sections 419 420 467 and 468 I.P.C. Investigating Officer commenced the investigation and recorded 161 Cr.P.C. statements of informant Narayan Prajapati, Dinesh Kumar (Notary) and Bacchu Lal Gupta, Advocate vide Annexure Nos. 6 to 9 to the affidavit appended along with this application and vide parcha No. 3 came to the conclusion that the informant is an untruthful person.
He, therefore, framed a final report on 7.11.2005 (Annexure No. 11) and submitted it before the Circle Officer concerned. Circle Officer, however, on 20.12.2005 ordered for further investigation vide Annexure No. 12 to the affidavit. The incumbent Investigating Officer again recorded the statements of the informant and Smt. Lalti Devi wife of Nanhey Lal Verma vide Annexure Nos. 13 and 14 to the appended affidavit and then submitted a charge sheet against the applicants on 30.1.2006 vide chargesheet C-1/2006, in the court of CJM, Jaunpur, who took cognizance of the offence on 10.2.2006, registered the Case No. 1403 of 2006 and fixed 24.2.2006 for the appearance of the applicants by issuing summons. Hence, this application u/s 482 Cr.P.C. for quashing of the said proceeding.
I have heard Sri V.P. Srivastava, learned senior counsel in support of this application and Sri G.S. Chaturvedi, learned senior counsel in opposition along with learned AGA. Sri Sikandar B. Kochar and Sri Umesh Vats, Advocates have also been heard in opposition.
It is contended by Sri V.P. Srivastava, learned senior counsel for the applicants that no offence is made out against the applicants.
He further contended that prosecution of the applicants is nothing but malafidy only for the purpose of harrasement and pressure tactics and this is one of such case, which is covered under Clause 1, 8 and 9 of the grounds mentioned in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 SCC 362 for quashing of the prosecution. He submitted that no application u/s 340 Cr.P.C. was filed only for the purposes that the informant knew that he has filed an affidavit before the Civil Judge, Senior Division, denying his signature on the family settlement vide Annexure No. 2 to the affidavit. He further submitted that the affidavit was filed in the original suit pending before Civil Judge, Senior Division and if the affidavit was false then the Civil Judge Senior Division was competent to take action. He further submitted that the affidavit was against the interest of defendants Nanhey Lal Verma, his wife Lalti Devi, Ram Asray Verma (applicant No. 1) and his wife Bindu Devi. Why Ram Asray Verma, applicant No. 1 will get false affidavit prepared against his own interest, remains unexplained and hence informant''s allegations are patently false and absurd.
He further submitted that neither Nanhey Lal Verma nor is wife Lalti Devi moved any application before the Civil Court that the alleged affidavit alleged to have been filed by the applicants is a forged one. Learned counsel contended that the informant admitted that he had filed application u/s 156(3) Cr.P.C. (FIR) at the behest of Nanhey Lal Verma, who was the defendant in the suit instituted by applicants Nos. 2 and 3 as plaintiffs. Learned counsel for the applicants contended that in the chargesheet only the informant and Lalti Devi wife of Nannha Lal are the sole witnesses of fact.
Learned counsel further submitted that Nanhey Lal Verma, the main person who had set up informant as a ploy did not get himself involved in the alleged crime even though he was worst affect person by the alleged forged affidavit. Learned counsel contended that without getting the opinion of the expert regarding the signature made by informant, the second Investigating Officer in connivance with Circle Officer, informant and Nanhey Lal Verma chargesheeted the applicants. Whether the affidavit of informant was genuine or not was a fact, which could have been deciphered only by interrogation of the Public Notary and the Advocate, who got the said affidavit notarized but the same has not been done.
Learned counsel contended that when the family settlement could not be denied by Nanhey Lal Verma and Lalti Devi in the original suit filed by the applicant Nos. 2 and 3, namely, Bindu Bihari Verma and Smt. Urmila Devi then only, as a pressure tactics, he has set up the informant who was his servant for the purposes of harrasement. Learned counsel contended that opinion of the first Investigating Officer that informant is an untruthful person and he could not be relied upon was a correct conclusion.
Learned counsel, therefore, concludingly contended that infact no offence is made out at all and as a pressure tactics the case was instituted against the applicants and without any further investigation and expert opinion regarding the povital of the controversy regarding genuineness of signature that a malicious charge sheet has been submitted. Learned counsel contended that Ipse dixit of the informant was taken to be a gospel truth by the second Investigating Officer when intact it is writ large on the record that he is an untrustworthy and untruthful person who is trying to benefit his master by making a false statement. Learned counsel further contended that the Circle Officer had no authority to withhold the submission of final report submitted by the first Investigating Officer and he was duty bound to forward it to the court in accordance with Section 173(3) Cr.P.C. Learned counsel further submitted that the FR which was initially submitted was detained in the office of the Circle Officer for more than a month because of the connivance of the Circle Officer with Nanhey Lal Verma husband of Lalti Devi.
Learned counsel further submitted that it is case of single testimony of a person who is untrustworthy. He also pointed out that Lalti Devi second Witness of fact is not an eyewitness and her statement u/s 161 Cr.P.C. clearly indicates that her evidence is a here-say evidence. Learned counsel further submitted that the delay in filing the application u/s 156(3)Cr.P.C. is because of the fact that interregnum family settlement and filing of an application u/s 156(3) Cr.P.C, informant had changed the side from one brother to another brother and for ulterior motives he has launched a lame prosecution against the applicants. Concludingly, learned Counsel contended that the prosecution of the applicants to be quashed by allowing this Criminal Miscellaneous Application.
Per contra Sri G.S. Chaturvedi, learned senior counsel for the respondent along with AGA argued that the charge sheet has been submitted and the applicants can claim discharge at the stage of framing of charge and the statement of the informant makes out offence against the applicants for which they have been summoned and therefore, this Criminal Miscellaneous Application be dismissed. Sri Chaturvedi, further submitted that Section 195 Cr.P.C is not a bar in the present case as the document was forged prior to filing of it in the Court.
Sri Chaturvedi further submitted that both civil and criminal proceeding can go simultaneously and it was the option of the informant to opt for the form for the prosecution of the accused. He further submitted that the final report was not submitted in the Court and before its filing if the higher authority (Circle Officer) ordered for further investigation then no exception can be drawn to such an order. He further submitted that at this stage, the ground of malafidy etc. cannot be considered. He also relied upon a judgement of the Apex Court in State of M.P. v. Awadh Kishore Gupta.
I have considered the arguments raised by both the sides and have gone through the affidavit and the Annexures appended along with this Criminal Miscellaneous Application, the counter affidavit filed on behalf of the informant Vinod Kumar Verma and the rejoinder affidavit filed by Sri Umesh Vats.
The undisputed facts of the case are that applicants Nos. 1 and 2, namely, Ram Asray Verma and Bindu Bihari Verma are the real brothers of Nanhey Lal Verma husband of Lalti Devi one of the witnesses. Annexure Nos. 2 clearly indicates that a civil suit was filed by applicants Nos. 2 and 3 in the court of Civil Judge Senior Division. In the said civil suit Lalti Devi, her husband Nanhey Lal Verma, Bindu Devi and applicant No. 1 Ram Asray Verma are the defendants.
It is, therefore, manifestly clear that applicant No. 1 would have been a person aggrieved by the alleged forged affidavit. However, applicant No. 1 Ram Asray Verma did not lodged any complaint regarding filing of the said affidavit. He, on the contrary, has been made an accused by the servant of Lalti Devi wife of Nanhey Lal Verma one the brothers. This admitted fact speaks volume of the malafidy and vexatious prosecution against applicant No. 1. It is an admitted fact that applicant No. 1 Ram Asray Verma was issueless. He has given his property to the son of Lalti Devi and Nanhey Lal Verma. The said fact has not been denied in the counter affidavit filed by the informant servant. It seems that after the property was given by applicant No. 1 to the son of Nanna Lal Verma that a dispute arose between applicants Nos. 2 and 3, namely, Bindu Bihari Verma and Smt. Urmila Devi with rest of the family members of the two brother. Annexure No. 2 plaint of the civil suit, which has also not been denied clearly supports the said conclusion.
It further transpires that during the pendency of the suit the family settlement was reached. The said family settlement created an imbalance regarding the economic benefit and therefore, the civil suit was filed by applicants Nos. 2 and 3 namely, Bindu Bihari Verma and Smt. Urmila Devi for permanent injunction. It is further admitted to the informant that he was a witness in the said family settlement. In such a situation the only person, who could be aggrieved by negation of the family settlement were the plaintiffs. The defendants Nanhey Lal Verma and Lalti Devi were the beneficiaries of the said family settlement. In such a view the negation of the family settlement would have adversely affected Nanhey Lal Verma and Lalti Devi. The aforesaid two persons however, did not lodge any complaint with any of the authorities so much so that Nanhey Lal Verma did not even appeared before the Investigating Officer and is not a witness in the charge sheet. Applicant No. 1, Ram Asray Verma was also adversely affected by negation of the family settlement as he is defendant in the suit instituted by applicants Nos. 2 and 3, namely, Bindu Bihari Verma and Smt. Urmila Devi but even then he took no legal action against the guilty persons.
Thus, what is conspicuously clear is that on the one hand applicant No. 1 is litigating with applicant No. 2 and 3 in the civil suit and on the contrary he has been made an accused by the servant of another brother ostensibly for the reason that the said brother Nanhey Lal Verma wants to grab the whole property. It is also very surreal that no application u/s 340 Cr.P.C. was filed before the Civil Judge Senior Division as he would have been in the best position to inquire whether the affidavit filed before him was genuine or not. This act also smacks of malafidy intention. I am not inclined to accept the contention of Sri Chaturvedi that it is for the aggrieved person to opt for the forum for the prosecution of the accused for the primary reason that any decree in the civil suit would not have affected informant of the present case at all. He would not have been aggrieved person by the decision of the civil court and the aggrieved person Nanhey Lal Verma did not come forward at all.
The two statements of the informant recorded by the first Investigating Officer and the second Investigating Officer appended as Annexure Nos. 6 and 13 clearly indicates that he has instituted the prosecution against the applicants with -alicious intention. Informant himself has admitted in his statement u/s 161 Cr.P.C. that he use to work with Nanhey Lal Verma as his in-laws live in Madhiyaun. He also admitted to have appended his photograph on the alleged forged affidavit and has also admitted not only signing on the blank papers but also on the register and on the photo. He further stated that he has not filed any affidavit on 11.1.2004. The said fact was not at all got verified by the Investigating Officer while submitting chargesheet against the applicants. The first Investigating Officer did inquire into that aspect of the matter by recording the statements of Dinesh Kumar Sharma, Advocate Notary and Bacchu Lal Gupta, who had got prepared the said affidavit. Both the aforesaid witnesses have unerringly stated that they got the said affidavit prepared at the behest of the informant Vinod Kumar Verma.
The Notary Advocate also stated that Vinod Kumar Verma informant was identified by the Advocate and he had inquired from informant Vinod Kumar Verma that whether he is filing the affidavit on his own sweet will or under some pressure, which fact he has denied and he had informed the Notary Advocate that he is filing the affidavit on his own sweet will. Notary Advocate has also denied the fact that he has taken the register to Makdoom Shah Aarahan.
It is recollected here that, according to the informant, he had singed on the register on the blank paper at Makdoom Shah Aarahan. It is also clear from 161 Cr.P.C. statement of the informant that he was working with Nanhey Lal Verma through out and he had not gone to Bombay in January 2004. He also did not reply to the quarry by the I.O. that sometimes he works with one brother and sometimes he works with another. He also did not inform anybody regarding signing on the blank paper at any point of time. His second recorded statement u/s 161 Cr.P.C. also shows that he had signed on the aforesaid papers on his own wish without raising any objection.
In such a view, I am of the opinion that merely on the ipse dixit of a ploy without any other cogent material no offence can be said to have been made out against the applicants. No expert opinion was sought by the second Investigating Officer. He did not interrogate the Advocate Notary as well as Advocate Bacchu Lal Gupta whose statements as is contained in the case diary clearly negates commission of any offence by the applicants.
Concludingly, I am of the opinion that the prosecution of the applicants in Case No. 1403 of 2006 (State v. Ram Asray Verma), under Sections 419, 420, 467 and 468 IPC, Police Station Kotwali, District Jaunpur is nothing but malafidy, vexatious and illegal.
Resultantly, I allow this Criminal Miscellaneous Application and quash the proceedings of Case No. 1403 of 2006 (State v. Ram Asray Verma), under Sections 419, 420, 467 and 468 IPC, Police Station Kotwali, District Jaunpur, pending in the court of Chief Judicial Magistrate, Jaunpur.