SARASWATI CHATTERJEE Vs. STATE

JUDGEMENT

(1.) This is an application under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'CrPC') requesting the court to initiate an inquiry into the forgery of an alleged will dated 13.09.1987 alleged to have been executed by the Testator (Late Lt. General Sailendra Nath Chatterjee). This will was produced by the petitioner (Saraswati Chatterjee) in the probate proceedings. It is also prayed by way of this application that a direction be issued authorising the filing of a criminal complaint under Section 195 (b) (ii) of the CrPC read with Sections 463 and 467 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') for the prosecution of Mrs Saraswati Chatterjee, Mr Solil Chatterjee and Mr Komoneya Chatterjee. This court had directed issuance of notice on this application only to Mrs Saraswati Chatterjee and Mr Solil Chatterjee. No notice was issued to Mr Komoneya Chatterjee.

(2.) It is the contention of the learned counsel for the applicant that the alleged will that was set up in the probate case (Test Cas 35/1995) was a forged one and, therefore, Section 195 (1) (b) (ii) was attracted and, accordingly, this court could issue directions for filing of a complaint in terms of the provisions of Section 340 of the CrPC. On the one hand, Mr Makhija appearing for Mr Solil Chatterjee and Mr Luthra appearing for Mrs Saraswati Chatterjee, took up a common contention that the application under Section 340 would not be maintainable in view of the Constitution Bench decision of the Supreme Court in the case of Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another: 2005 (4) SCC 370.

(3.) Before the rival contentions of the parties are taken up for consideration, it would be necessary to give a brief resume of facts. There is no dispute that Late Lt. Gen. Sailendra Nath Chatterjee died on 18.11.1991. There is also no dispute that his wife had pre-deceased him and that he left behind only two sons as his legal heirs, namely, Solil Chatterjee and Sanjoy Chatterjee. There is also no dispute that sometime in 1993, Solil Chatterjee filed a partition suit being Suit No.334/1993 in this very court claiming partition of the property left behind by Late Lt. General Sailendra Nath Chatterjee. In the partition suit, it was clearly and categorically stated that Late Lt. General Sailendra Chatterjee died intestate. On 04.03.1994, it appears that a preliminary decree was passed in that partition suit wherein the shares of the two sons, i.e., Solil Chatterjee and Sanjoy Chatterjee were recognised as being 50% and 50%. Thereafter, sometime in 1995, during the pendency of the proceedings in the said suit No.334/1993, a will said to have been left by Late Lt. General Sailendra Chatterjee and purportedly executed on 13.09.1987 was produced by the petitioner (Mrs Saraswati Chatterjee) in the present probate proceedings. In terms of the purported will, the property was to devolve differently. Solil Chatterjee and Sanjoy Chatterjee each were to get 1/3 share in the property, whereas the balance 1/3rd of the property was to be left to one Basudev Chatterjee, who was the Late Lt. General's brother's son. It was recorded in the purported will that as Basudev Chatterjee was not enjoying good health, therefore, in the event of his death, his share would devolve upon his wife (Smt Saraswati Chatterjee). It is an admitted position that Basudev Chatterjee died on 10.10.1987 shortly after the purported will is said to have been executed as a result of which Smt Saraswati Chatterjee also became a claimant to 1/3rd of the property left by Late Lt. General Sailendra Nath Chatterjee. It is in the context of this purported will that she was impleaded as a party defendant in the said partition suit. Thereafter, the proceedings in the partition suit came to be stalled inasmuch as a view was taken that the probate matter be decided first before deciding the partition suit. In the partition suit, however, on interim application, the court had passed an injunction against Sanjoy Chatterjee from entering the property, namely, D-8/5, Vasant Vihar, New Delhi or from alienating his share therein during the pendency of the proceedings. Subsequently, an application was filed on behalf of Sanjoy Chatterjee against this interim order. This court declined to interfere with the interim order already passed by it. Being aggrieved, the said Sanjoy Chatterjee filed an appeal therefrom before a Division Bench of this court. During the pendency of proceedings before the Division Bench, it was contended by the parties that the matter could be disposed of by inter se bidding between Solil Chatterjee and Sanjoy Chatterjee insofar as the said property, namely, D- 8/5, Vasant Vihar, New Delhi was concerned. It is to be noted that the probate proceedings had been filed in 1995 and continued till 2005. At the stage when the matter came up before the Division Bench, as noted above, it was decided that the matter could be disposed of by inter se bidding. Thereafter, an application was moved in the probate proceedings by the said Mrs Saraswati Chatterjee for withdrawal of the same. It was a non-speaking application and it was disposed of by an order dated 16.05.2005, whereby the probate case was dismissed as withdrawn. It is pertinent to note that before the probate proceedings were dismissed as withdrawn, the entire evidence had been recorded. What is noteworthy here is that the statements of the parties were also recorded and also that of a handwriting expert.