1998 ALL MR (Cri) 657
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.V. SAVANT AND T.K. CHANDRASHEKHARA DAS, JJ.

Tilakraj Vazirchand Talwar Vs. State Of Mahararshtra

Criminal Writ Petition No.1200 of 1996

25th March, 1998

Petitioner Counsel: Mr.RAJIV MOHITE with Ms.NISHA VALANI, M/s.MAYUR NARENDRA & CO.
Respondent Counsel: Ms. A.R. KAMAT

Constitution of India, Art.227 - Certiorari - Allegation of forgery of will against - Petitioner who was a tax-consultant - Testator executing two wills and two civil cases pending in respect of execution of wills - Petitioner not a beneficiary under any of the wills and was not even present when second will was executed - Held allowing proceedings to continue against him who was in no way concerned with execution of will would be abuse of process of court - Hence proceedings quashed. (Para 9)

Cases Cited:
AIR 1977 SC 1489 [Para 9]
1992 Supp (1) SCC 35 [Para 10]


JUDGMENT

A.V. SAVANT, J. :- Heard both the learned Counsel; Mr.Mohite for the petitioner and Miss Kamat for the respondent State.

2. This is petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari quashing the proceedings in C.R.No.104/1996 registered with the General Branch, Crime Branch, Mumbai, where it is alleged that four accused viz. Vinod Bajaj, Vijay Bajaj, Sudhir Bajaj and the present petitioner Tilakraj Talwar have committed forgery in respect of a registered will dated 6th February 1990 executed by one Purushottamdas Bajaj. The crime is registered, on the complaint of Girdhar Purushottamdas Bajaj lodged on 2nd October 1996, where the date and occurence of the offence is alleged to be "during the period from 1989 to 21 August 1993, "Girdhar Bajaj had filed Criminal Application No.3235 of 1996 for intervention in the present proceedings. However, the same was rejected on December 20, 1996 with the following order :-

CORAM : A.C. AGARWAL AND

F.I. REBELLO JJ.

"Provisions of section 301(2) of the Cr.P.C. cannot and will not assist the petitioner in claiming intervention in the criminal writ petition. The investigation in the case is being conducted on behalf of the State and hence, private party cannot have a right of audiance by way of right. Rejected ".

20/12/1996

Girdhar Bajaj then filed Criminal Application No.3404 of 1997, which was also rejected on 19th January 1998, with the following order :-

CORAM: A.P. SHAH AND

S.S.PARKAR JJ.

"Heard Mr.Pradhan for the Applicant. He fairly conceded that the petitioner's application for intervention was rejected by this Court. In view of this the present application cannot be entertained and is accordingly dismissed.

Hearing of Criminal Writ Petition No.1200 of 1996 is expedited. The petition is to be posted for hearing in the week commencing from 23-2-1998. To be placed high on board".

19/1/1998

3. A few facts need be stated to appreciate the controversy raised before us. One Purusshottamdas Bajaj had a wife Pushpawati. He has two sons from her viz. complainant Girdhar and Surinder, apart from two daughters. Pushpawati died in the year 1945. Purushottamdas then married Bimlavati in 1946. He has three sons and three daughters from Bimlavati. Three sons Vinod, Vijay and Sudhir are the first three accused in C.R.No.104/1996. The petitioner is admittedly a practising Chartered Accountant and Tax Consultant of the Bajaj family. Purushottamdas Bajaj had executed his first will on 2nd February 1987, which was an unregistered will. The sole executor appointed under the said will was Pannalal Narula, brother of the first wife Pushpawati.

4. It is stated that in July 1989 Purushottamdas Bajaj suffered an attack of paralysis. He has, however, executed a second will, which is a registered document. This will has been executed on the 6th February 1990 and has been registered on the 15th February 1990 with the Sub-Registrar, at Mumbai. Under the second Will, there are two executors; one being Pannalal Narula, brother of the first wife Pushpawati and the second being the petitioner - Chartered Accountant. Admittedly, there is no bequest made to the petitioner under any of the two Wills. However, it is brought to our notice that, whereas, under the first will dated 2nd February 1987 the two sons of the first wife viz. Girdhar and Surinder got a larger share in the property of deceased Purushottamdas Bajaj, under the second will, dated 6th February 1990, the three sons of the second wife get a larger share.

5. Purushottamdas Bajaj died on 21st August, 1993. On the 19th February 1994 Suit No.1277 of 1994 has been instituted on the Original Side of this Court by Girdhar and Surinder, sons of the first wife Pushpawati against their step-mother Bimlavati and other members of the family. Notice of Motion No.1253 of 1994 was taken out in the said suit by the plaintiffs and certain interim order have been passed on 27th August 1997. As stated earlier, the present compliant has been lodged on 02-10-1996 in respect of the offence alleged to have been committed between 1989 and 1993. On 02-11-1996 the first three accused (sons of the second wife ) have instituted Testamentary Petition No.786 of 1996 on the Original Side of this Court for obtaining the letters of administration in respect of the registered will dated 6th February 1990 and certain interim orders have been obtained in the said proceedings in the month of December, 1996. Thus, Suit No.1277 of 1994 filed by the sons of the first wife and Testamentary Petition No.786 of 1996 filed by the sons of the second wife are pending on the Original Side of this Court.

6. Be that as it may. In the present proceedings we are not concerned with the allegations of the complainant Girdhar against his three step-brothers - Vinod, Vijay and Sudhir. We are not concerned with the merits of the pending investigation as far as the allegation against the said three accused are concerned. The petition is by accused No.4 the family's Tax Consultant and having regard to the facts set out above, we will only consider the role attributed to him. In the statement of the complainant, a vague allegation is made against the petitioner that alongwith other three accused they had "decided to go with their plan and conspired to create "2ND will" by forging the signatures of my father late Mr.Purushottamdas Bajaj". There is a further allegation that "Mr.Talwar who is witness in the first "WILL" perhaps has self appointed as a Co-executor in the "2nd WILL", alongwith Mr.Panna Lal". There are further allegations in respect of the second wife Bimlavati being made a partner in the firm and the three accused alongwith the petitioner are supposed to have acted malafide in incorporating a clause in the partnership agreement whereunder on the resignation of Bimlavati and/or demise, her entire share was to pass on to her three sons and not to her step-sons.

7. The investigation made by the police so far reveals startling things. Accused No.3 Sudhir had phoned from Mumbai his step-brother complainant Girdhar, who was in Chicago - U.S.A. in September, 1995. We have perused the transcript of the taperecorded telephonic conversation. It makes interesting reading. It shows that even amongst the three accused, sons of Bimlavati, there was a serious disagreement as to the sharing of the estate of deceased Purushottamdas. It is not as if the dispute was only between the sons of the first wife and those of the second wife. Sudhir has narrated the role played by him in bringing about the second Will and if complainant Girdhar was willing to pay Rs.5 crores to Sudhir, he was willing to join hands with Girdhar as against his real brothers Vinod and Vijay. There is no whisper of any role played by the petitioner in the execution of the second Will in respect of which he is sought to be prosecuted. Sudhir was fed up with the attitude of his two brothers Vinod & Vijay. The talks of settlement between the two branches of Purushottamdas had failed. Complainant Girdhar was in U.S.A. Sudhir wanted to start some business on his own in Mumbai and hence, confessed to Girdhar the role played by him in bringing about the second Will. But still, if Girdhar was willing to pay Rs.5 crores to Sudhir, he was willing to join hands with Girdhar. Excepting a reference to a meeting at the office of the petitioner Tax Consultant where the parties used to meet for finalising the Memorandum of Understanding, no role is attributed to the petitioner whatsoever in bringing about the second Will for forging which he is sought to be presecuted.

8. As stated earlier, the second Will dated 6th February 1990 is a registered document. Certain presumptions will attach to it in accordance with the provisions of section 114 illustration (e) of the Indian Evidence Act. The procedure under the Registration Act of 1908 for registering this Will has, apparently, been followed. Two civil proceedings are pending in this Court, as referred to earlier, where the question of validity of the Will is bound to be an issue between the parties. Though we are not concerned with the merits of either the investigation or the pending civil proceedings, what emerges from the material that is placed before us is as under :-

(i) The first Will dated 2nd February 1997 is an un-registered Will under which the two sons of the first wife got a larger share.

(ii) The second Will dated 6th February, 1990 has been registered on the 15th February 1990 and carried with it certain presumptions in accordance with law. Under this Will, the three sons of the second wife got a larger share.

(iii) The offence of forgery is alleged to be in respect of the second Will dated 6th February 1990 registered on 15th February 1990.

(iv) The petitioner is not even alleged to be present at the time of execution of the second Will.

(v) He is not a beneficiary under any of the two Wills, much less under the second Will.

(vi) He is a Chartered Accountant and Tax Consultant of the Bajaj family.

(vii) Statement of the attesting witness Dr.Parsram Asnani, who has attested the Will of the 6th February 1990 has been recorded.

(viii) Two civil proceedings are pending on the Original Side of this Court between the two branches of the family of Purushottamdas Bajaj viz. O.O.C.J.Suit No.1277 of 1994 filed by Girdhar and Surinder, sons of the first wife on 19th February 1994 and Testamentary Petition No.786 of 1996 filed by the first three accused, sons of the second wife, for obtaining letters of administration in respect of the registered Will dated 6th February 1990.

(ix) Despite the parties being educated, in respect of an offence alleged to have taken place "during the period from 1989 and 21st August 1993", the complaint is filed as late as on 02-10-1996.

(x) No date of knowledge of the commission of the alleged offence is disclosed in the complaint.

(xi) The telephonic conversation between Sudhir and Girdhar unmistakably shows that the petitioner was neither present at the time of execution of the second Will, nor is he in any manner concerned with the execution of the second Will which is alleged to have been forged, and

(xii) Accused No.3 Sudhir had admitted the role he had played in bringing about the second Will and was willing to settle the matter with complainant Girdhar if Girdhar paid him Rs.5 crores to enable Sudhir to start some business in Mumbai.

9. We need not express any opinion as to who could be the person interested in obtaining the second Will from the deceased since that is not the scope of this petition. However, in the light of the above glaring facts, in our view, allowing the proceedings to continue against the present petitioner would be an abuse of process of law and ends of justice require that the proceedings ought to be quashed. In such a situation, this Court can interfere in exercise of its powers under Article 226 of the Constitution. In the State of Karnataka v. L. Muniswamy and others A.I.R. 1977 Supreme Court, 1489, the Apex Court was considering the scope of the powers of the High Court under sections 227 and 482 of the Code of Criminal procedure, 1973. It was held that if the Court comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of court, it can interefere even under section 482 of the Code of Criminal Procedure. For the purpose of determining whether there are sufficient grounds for proceeding against the accused, the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which conviction can be said reasonably to be possible. These observations are to be found in para 10 of the Judgment, at pages 1493-1494.

10. In the State of Haryana and others V/s. Bhajan Lal and others 1992 Supp (1) Supreme Court Cases 35, the Apex Court considered certain categories by way of illustrations wherein the extraordinaary power under Article 226 or the inherent powers under section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. Some of the categories are (i) Where the allegations made in the F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. (ii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, or (iii) Where, the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The relevant observations are to be found in para 102 of the Judgment, at pages 378-379 of the Report.

11. Applying the ratio of the above decision to the facts of the present case, we of the view that no case is made out for continuing the investigation against the present petitioner in respect of C.R.No.104/96. Under the circumstances, the petitioner would be entitled to succeed.

12. Rule is accordingly made absolute in terms of prayhere (a).

Petition allowed.