JAGMAL SINGHS Vs. KAL DEVI

JUDGEMENT

(1.) THIS is Crl. Misc. petition filed under Section 482 Cr.P.C. by Jagmal Singh and Bhim Singh sons of Devatia and their father Devatia whereby they have prayed for the quashing of complaint Annexure P 1 instituted by respondent Smt. Kela Devi daughter of Sunhera against them under sections 120 -B, 420, 406, 468 IPC. They have also prayed that the order Annexure P2 summoning them be quashed.

(2.) BEFORE coming to the merits of this prayer, it would be useful to notice the facts set up in complaint Annexure P1. Kela Devi and Bhim Singh and Jagmal Singh are first cousins. Kela Devi is the daughter of Sunhera son of Hari Chand. Bhim Singh and Jagmal Singh are the sons of Devatia son of Hari Chand. Sunhere was recorded as owner in joint possession of share of land measuring 51 Kanal 12 marla situated in village Garhi Birbal. He had 1/2 share in residential house also. Sunhera was sonless. Kela Devi and Gurmejo are his daughters. In civil suit No. 187/83 filed by Sunhera, he suffered decree in favour of his daughters Kela Devi and Gurmejo which was passed by Shri B.L. Singhal, Sub Judge Ist Class, Karnal on 17.5.1983. According to Smt. Kela Devi, the sisters thus became owners in joint possession of the property belonging to Sunhera. According to her, Sunhera had full faith in Bhim Singh as he was his nephew and was cultivating his land on his behalf while they were putting up with their respective in -laws and were not in a position to cultivate the land of their father situated in village Garhi Birbal. Bhim Singh committed the breach of that faith which Sunhera had in him. For some time payment of their share of the produce was made to them by Bhim Singh. Payment of their share of the produce was stopped some time back. On account of the non payment of their share of the produce, they intended to go in for partition of the land and have their share separated. So that they were able to file an application for partition, they approached the Patwari in November 1993 for obtaining necessary jamabandi etc. Patwari told them that the land had been transferred in the name of Bhim Singh by some civil court decree. On further enquiry, it transpired that Bhim Singh had got ex parte civil decree in his favour against them i.e. Kela Devi, Gurmeja and their father Sunhera through practicing fraud upon them. From the perusal of the plaint filed by Bhim Singh against them and their father Sunhera and the other documents filed thereto, it emerged that the basis of claim of Bhim Singh was that he was the adopted son of said Sunehra and the ceremony of adoption had taken place in the year 1978 and that Sunhera had no right, title or interest to suffer decree qua the ancestoral/coparcenary property. It was also alleged by Bhim Singh that he was the real, lawful owner of the said land." In fact Sunhera had never adopted Bhim Singh and no adoption ceremony ever took place in the presence of any relation or member of the family. After obtaining the necessary copies of documents, they i.e. Kela Devi etc. filed civil suit in the court of Sub Judge, Karnal challenging that ex parte decree. According to Kela Devi, the said ex parte decree was illegal, null and void and passed without jurisdiction and was ineffective and inoperative and not binding on them because the claim of Bhim Singh was based on fraud inasmuch as he had falsely pleaded there that he was the adopted son of Sunhera and the ceremony of adoption had taken place in the presence of the members of the family and relatives. Ex parte decree was got passed fraudulently and dishonestly. Sunhera never appeared in that suit titled Bhim Singh Versus Gurmejo etc. He never filed any written statement. He was never examined by the court. He never thumb marked the written statement. He never executed any power of attorney. If the alleged thumb marked anywhere his thumb impressions that was an act of fraud committed upon him. No summons were issued to them i.e. Kela Devi etc. in that suit at their proper address. They were issued at wrong addresses. Reports that they had refused to accept service were manipulated by Bhim Singh, and his brother Jagmal Singh who is Clerk to an Advocate practising at District Courts, Karnal. They produced false evidence regarding the ceremony of adoption. Kela Devi instituted complaint under Sections 120 -B, 420, 406, 467, 468 IPC. Annexure P1. against Bhim Singh, Jagmal Singh sons of Devatia and Devatia son of Hari Chand. Jagmal Singh etc. seek the quashing of complaint Annexure P1 and the order Annexure P2 whereby they have been summoned by the Magistrate to face trial. It is averred that Sunhera was sonless. He had only two daughters namely Kela Devi and Gurmejo. He adopted Bhim Singh who is his real nephew on 4.6.1978. Deed of adoption was executed. Kela Devi and Gurmejo were married about 25 years ago. They managed to obtain by fraud decree dated 17.5.83 respecting the property of Sunhera. Bhim Singh challenged the decree dated 17.8.88 which was set aside by Shri R.N. Bharti, Sub Judge 3rd Class Karnal on 2.6.1990 in civil suit No. 18 of 1990 and Bhim Singh was declared to be owner in possession of the property of Sunhera. Sunehra died on 6.5.1993. Mutation was sanctioned in favour of Bhim Singh. Kela Devi and Gurmejo filed suit on 14.12.1993 challenging the ex parte decree dated 2.6.1990 passed by Shri R.N. Bharti, Sub Judge III Class, Karnal and that suit is pending at Karnal. On 16.3.94, Kela Devi instituted complaint Annexure P1 against Bhim Singh, Jagmal Singh and Devetia. In which they have been summoned vide order Annexure P2. Institution of the complaint is abuse of the process of law as the civil court is seized of determining the fact since December 1993 whether the decree obtained by Bhim Singh on 2.6.90 from the court of Shri R.N. Bharti, Sub Judge III Class, Karnal was a genuine decree or had been obtained fraudulently. This question will also be confronting the civil court in that suit whether Sunhera had appeared in that suit and put in written statement and made statement before the court admitting the claim of Bhim Singh or Sunhera had not appeared in the court at all and some one was put in court by Bhim Singh who filed written statement and also made statement before the court admitting the claim of Bhim Singh. This question will also be confronting the civil court whether Bhim Singh was the adopted son of Sunehra and whether ceremony of adoption had taken place and whether adoption deed had been executed. Similarly this question will also be confronting the civil court whether Kela Devi and Gurmejo had been justifiably ordered to be proceeded against ex parte or that summons had been sent on wrong address and the reports as to refusal were got manipulated. Furthermore, Sunhera had died on 2.6.90. Kela Devi and Gurmejo did not challenge the ex parte decree during the life time of their father which shows that they knew that their father had suffered ex parte decree of his free will and volition and that they had allowed proceedings to be determined exparte against them intentionally.

(3.) COMPLAINT is not maintainable at the instance of Kela Devi as forgery/fraud, if any, took place in court and it is that court in which the forgery took place which is to file complaint as is the scheme of Section 195 of the Cr. P.C. or the complaint can be instituted by that court where the civil suit is pending challenging that ex parte decree if that court finds that the ex parte decree had been obtained by Bhim Singh by fraud and by putting -forth someone else in place of Sunhera before the court.