1. The present petition has been filed by the petitioners under Section 482 of Cr.P.C. for quashing of proceedings of Sessions Trial No. 259/13 pending
trial against them and also for quashing of order dated 07.12.2013 passed by the 5th Additional Sessions Judge, Indore whereby the learned Judge
dismissed their application filed under Section 227 of Cr.P.C. for discharging them in the same Sessions Trial.
2. Sans unnecessary details, relevant facts leading to the present petition are that one Jagjit Singh Anand (hereinafter referred as to the
“Testatorâ€) died on 23.04.2008 leaving behind his wife Ms. Gajinder Pal Kaur, elder son Rupinder Singh Anand (Respondent no.2), Ms. Manmeet
Kaur (Wife of pre deceased younger son Jasprit Singh), daughter Gaman Bhasin and adopted son of pre deceased son Jasprit Singh, Master Angad
Singh. In his life time, the 'Testator' entered into an agreement with his elder son Rupinder Singh on 01.06.1991 (Annexure P/2) and apportioned his
interest in business and property of the Testator and handed it over to Rupinder Singh. Rest of the properties, which undisputedly were self acquired,
remained in the exclusive ownership and possession of the Testator. Rupinder relinquished all his rights towards this remaining property. After almost
12 years of this partition/relinquishment, the Testator executed a Will dated 28.06.2003 and bequeathed substantial part of his movable/immovable
properties to his wife and after her demise, to grandson Angad. Further, by this Will, the Testator bequeathed two lacs shares each in favour of
Rupinder Singh and his both sons Ishdeep and Jashdeep. Later, on 04.01.2008, the Testator amended his Will but most of the property again
bequeathed almost on the same terms. This Will (Annexure P/4 dated 04.01.2008) was made part of the “original Will†dated 28.06.2003
(Annexure P/3). The testator died on 23.04.2008.
3. In 2008, Respondent no.2 filed a Civil Suit no. 2-A/2008 (Annexure P/5) in the Court of District Judge, Indore for partition and declaration claiming
that his father died intestate and Wills dated 28.06.2003 & 04.01.2008 are forged and fabricated documents and be declared null and void. In reply,
besides his mother, sister, sister-in-law (wife of predeceased younger brother) and nephew (Defendants No.1, 2, 3 & 4 in that Civil Suit), his own wife
and sons (Defendants No.7, 8 & 9) refuted his claim by filing written statement (Annexure P/6,7 & 8) and admitted that the both Wills are true and
genuine. In this civil suit, defendants/petitioner filed original Will. This suit is still pending.
4. Later, Respondent no.2 withdrew his allegation regarding genuineness of the amended Will dated 04.01.2008 by filing amendment application
(Annexure P/11) before the Court, which was allowed vide order dated 01.09.2010 and para containing such allegations was deleted from the plaint
(Annexure P/12). After such deletion, challenge to genuineness of the amended Will no longer remained fact-in-issue in the Civil Suit and only the
question of validity of the Will or the question as to whether the Testator was fit physically and mentally to executed the Will and as to whether
without obtaining Probate or Letter of Administration, Will can be given effect to, remained before the trial Court.
5. In the year 2011, Respondent no.2 filed a private complaint under Sections 406, 420, 467, 468, 471/34 r/w Section 120-B of IPC against six persons
including the petitioners alleging that copy of the Wills kept in the office of the Registrar had fake signatures and thumb impressions of the Testator
and that with intent to deprive him from his lawful shares in the property of his late father, the accused persons in collusion with each other had
fabricated those signature/thumb impression. After recording statements under Section 200 of Cr.P.C., the Judicial Magistrate First Class, Indore
registered the case under Section 467 and 468 of IPC and did not take cognizance U/S 406, 420,471 of the IPC and committed the case to the Court
of Sessions.
6. The petitioners filed application under Section 227 of Cr.P.C. (Annexure P/16) for discharge, which was dismissed vide order dated 07.12.2013 and
the court framed the charges u/s 467 & 468 r/w 120B of the IPC.
7. The petitioners have filed the present petition on the grounds that the entire case of forgery of the Wills is based on the opinions of the Handwriting
and Finger Print experts, which itself are based on the photocopies of the original Wills. Opinion of handwriting expert is based on certified photocopy
of Will dated 04.01.2008 and opinion of thumb impression is based on coloured photocopy of both Wills dated 28.06.2003 & 04.01.2008. Admitted
signature of the testator are also taken from photocopies of three cheques dated 29.10.2007.
8. There was no motive behind the petitioners fabricating the Will as they are not the beneficiaries of the Will. Petitioner no.2 and 3 are witnesses of
the alleged Wills and Petitioner no.1, who is an advocate, has drafted both the Wills in furtherance of his profession and thus, in the eyes of law,
charges under Sections 467 and 468 of IPC were not sustainable against them.
9. The learned trial Court failed to appreciate that wife and sons of the complainant have accepted the Wills as genuine and by filing joint written
statement in the civil suit; they have accepted the legacy devolving upon them and have prayed to dismiss the suit filed by the complainant.
10.Wife and sons of Respondent No. 2 are among beneficiaries of the Will but they are not arrayed as accused and under these circumstances, the
act of the complainant “pick and choose†clearly reveals the malafide in filing the said case.
11.Respondent no.2/complainant had no grievance as he had waived his rights in the property of his father way back in the year 1991 after executing
agreement dated 01.06.1991. He has filed the complaint with malafide intention to grab property of his father as he was left out of the property by his
father.
12.It is also submitted that the application filed by Respondent no.2 for verification of the signatures and thumb impression by the CFSL is still pending
before the learned trial Court, therefore, initiation of criminal case against the petitioners on the basis of alleged expert opinion based on the
photocopies is a gross miscarriage of justice. Therefore, the petitioners have prayed for quashing of the proceedings of Sessions Trial No.259/13
pending against them and also quashing of order dated 07.12.2013 passed by the Vth Additional Sessions Judge, Indore.
13.In support of his submission, Learned counsel for the petitioner, has placed reliance on the case of Satish Mehra Vs State of N.C.T of Delhi and
Another reported in AIR 2013 SC 506, Paramjeet Batra Vs State of Uttarakhand and Others reported in 2013(11) SCC 673, Mohan Goswami and
Another Vs State of Uttaranchal and others reported in (2007) 12 SCC, Mohan Prasad Dubey Vs State of M.P reported in 2016 (1) M.P.L.J (Cri)
569, Afasr Mohd. Vs State of M.P reported in 2013 (3) b MPWN 60 and Asharfi Devi Vs Hari Prasad reported in 2011(3) MPJR SN 7.
14.Learned counsel for the respondents have supported the order of the learned trial Court stating that the petitioners, after conspiring together
prepared a forged and fabricated Will dated 04.01.2008 of late Jagjit Singh Anand. Petitioner no.2 and 3 are witnesses of the alleged Wills and both
the Wills were prepared by Petitioner no.1. It is also submitted that on the basis of careful and thorough examination, Ms. Yogita Singh, document
examiner has reached on the conclusion that Shri Jagjeet Singh Anand who has signed the admitted signatures had not signed the Will and as per
report dated 18.05.2010, by Director, Finger Print Bureau, SCRB, Police Headquarters, Bhopal, thumb impression on the alleged Will dated
04.01.2008 was not identical with the thumb impression of Jagjeet Singh Anand on the Will dated 28.06.2003. Further, it is also submitted that vide
report of Document Examiner dated 15.02.2012 it was found that the execution of the signatures is totally different in some of the signatures in the
amended Will dated 04.01.2008. Therefore, the allegations against the petitioner were found prima facie proved by the learned trial Court. It is also
submitted that before filing complaint before the Court, the complainant had made a written complaint on 15.01.2011 to the higher police authorities as
well as to the District Registrar Indore for taking action in the matter. The learned trial Court after examining the complainant and other seven
witnesses has framed the charges against the petitioners. It is also argued that the trial is at advance stage and at that stage proceedings cannot be
quashed. Therefore, the petition under Section 482 of Cr.P.C., by the petitioners deserves to be dismissed.
15.In support of his submission, learned counsel for the respondent has placed reliance on the case of C.B.I Vs K.M Sharan reported in 2008(4) SCC
471, Mahesh Choudhary Vs State of Rajasthan reported in 2009(4) SCC 439, M. Naryandas Vs State of Karanataka reported in 2003(11) SCC 251,
Rumi Dhar Vs State of West Bengal reported in 2009(6) SCC 364, Rashida Kamaluddin Syed Vs Shaikh Saheblal Mardan reported in 2007(3) SCC
548, V.C. Raam Sukaesh Vs State of M.P reported in 2008(3) JLJ 101, Shivjee Singh Vs Nagendra Tiwarey reported in 2010(7) SCC 578, Goyal
M.G Gases PVT LTD Vs Kamaljeet Singh Bhatia reported in 2007(4) M.P.L.J 80, Maratt Rubber LTD VS J.K Marattukalam reported in 2000 (9)
SCC 547, S.M Chincholkar Vs State of M.P reported in 2018(2) MPWN 46, Vinod Raghuvanshi Vs Ajay Arora reported in 2014 (1) JLJ 404,
Vijayander Kumarb Vs State of Rajasthan reported in 2014(3) SCC 389, Bhaskar Lal Sharma Vs Monica and others reported in 2014(3) SCC 383
and Vikram Vs State Of Rajasthan reported in 2015 CRLJ 2447.
16.I have heard rival contentions of the parties and have gone though the record.
17.Before appreciating the facts, it would be trite to observe the legal position with regard to exercise of jurisdiction by the High Court for quashing
the First Information Report and other consequential proceedings.
18.The power under Section 482 of Cr.P.C. is extra ordinary in nature and it is settled proposition of law that this power has to be exercised sparingly
and with great care and caution only to give effect to an order under the Code or to prevent abuse of process of the Court or to otherwise secure the
ends of justice and only in the cases where attaining facts and circumstances satisfy that possibilities of miscarriage of justice Will arise in case of
non-use of power. In quashing the proceeding, the High Court has to see whether the allegations made in the complaint, if proved, make out a prima
facie offence. In that case only the Court should be permitted to proceed with the trial to establish the liability. At this stage sifting or weighing of the
evidence is neither permitted nor expected. While considering the petition under Section 482 of Cr.P.C., the Courts have to be strictly confined to the
scope and ambit of the provision.
19.A question as to whether quashing of the FIR filed against the respondent - Bhajan Lal for the offences under Sections 161 and 165, IPC and
Section 5(2) of the Prevention of Corruption Act was proper and legal, came up for consideration before the Hon’ble Supreme Court in State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 (1992 AIR SCW 237 : AIR 1992 SC 604). Reversing the order passed by the High Court, the Apex
Court explained the circumstances under which such power could be exercised. it was explained that such power could be exercised 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. It is observed in para 102 as under:
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could
be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information report 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) 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.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) 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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
20.This propositions of law has later been reiterated in Mahesh Chaudhary v. State of Rajasthan (2009) 4 SCC 443), Shakson Belthissor v. State of
Kerala and Anr, AIR 2010 SC (Supp) 864 and Mosiruddin Munshi v. Md. Siraj AIR 2014 SC 3352 and in many other cases.
21.It is held in Krishnanan Vs. Krishnaveni (1997 AIR SCW 950 : AIR 1997 SC 987) that when the High Court on examination of the record finds
that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is
failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is the duty of the High Court to have it corrected at the
inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High
Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power. It may be exercised
sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.
22.In Inder Mohan Goswami And Another Vs State of Uttaranchal and others (2007) 12 SCC 1 Hon'ble the Apex Court observed:
27.The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution
in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not
be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts
are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual
or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be
laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
23.Similar view has been taken in Paramjeet Batra Vs State of uttarakhand and others (2013) 11 SCC 673. Relevant para of this judgement reads
thus:
7. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the
purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or
not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High
Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially
of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this
case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.
24.Judgements cited by the Respondents passed in C.B.I Vs K.M Sharan reported in 2008(4) SCC 471 & in Mahesh Choudhary Vs State of
Rajasthan reported in 2009(4) SCC 439 also talks about the principles and scope of the inherent power under Section 482 Cr.P.C. to quash charge-
sheet and held that the High Court is not supposed to “embark upon the inquiry whether the allegations in FIR and the charge-sheet were reliable
or not and thereupon to render definite finding about truthfulness or veracity of the allegations†High Court should have limited its considerations to
“... Whether allegations made in the FIR and the charge-sheet taken on their face value and accepted in their entirely would prima facie constitute
an offense for making out a case against the accusedâ€
25.Judgement cited by the respondents passed in Vijayander Kumarb Vs State of Rajasthan reported in 2014(3) SCC 389 also
reiterated the same principles. Para 8 of the judgement is as follows
8. On behalf of the appellants reliance has been placed upon judgments of this Court in the case of Thermax Limited and Others Vs. K.M.Johny and
Others[1] and in case of Dalip Kaur and Others vs. Jagnar Singh and another[2]. There can be no dispute with the legal proposition laid down in the
case of Anil Mahajan vs. Bhor Industries Limited[3] which has been discussed in paragraph 31 in the case of Thermox Limited (supra) that if the
complaint discloses only a simple case of civil dispute between the parties and there is an absolute absence of requisite averment to make out a case
of cheating, the criminal proceeding can be quashed. Similar is the law noticed in the case of Dalip Kaur (supra). In this case the matter was
remanded back to the High Court because of non-consideration of relevant issues as noticed in paragraph 10, but the law was further clarified in
paragraph 11 by placing reliance upon judgment of this Court in R.Kalyani vs. Janak C.Mehta[4]. It is relevant to extract paragraph 11 of the
judgment which runs as follows:
“11.There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of
law, as laid down in R. Kalyani v. Janak C. Mehta is attracted, which are as under:
“(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report
unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go
beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be ground to hold that the criminal proceedings should not be allowed to
continue.â€
26.Keeping in mind these principles, now, in view of the preliminary objection, I will consider as to when powers under Section 482 Cr.P.C. can be
used by the Courts. Bench comprising Hon'ble Justice P. Sathasivam and Hon'ble Justice Ranjan Gogoi has made it clear in the case of Sathish
Mehra Vs. State of N. C. T. of Delhi AIR 2013 SC 506 that powers under section 482 of the Cr.P.C. is exercisable at threshold as well as at
advanced stage of trial. Para 15 of the judgement reads thus:
15. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle
that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence there can be reason as
to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound
to become lame or a sham ought to interdicted in the interest of justice as continuance thereof Will amount to an abuse of the process of the law. This
is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The
power, though available, being extra-ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the
narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so
warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage
thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be
somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked
into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if
accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.
27.This petition is pending since 2014 without any fault attributed to the petitioners. It would be unfair, unjust and improper to throw out the petition
into the bin on the ground that the trial has attained an advance stage during pendency of this petition before this Court as this Court could not decide it
earlier for one reason or the other. Therefore, preliminary objection of Respondent No.2 is not acceptable.
28.It is not in dispute that in the present case both the experts have taken photographs of disputed signatures/thumb impression from the photocopy of
the Will. Photocopy of document itself is neither primary nor secondary evidence. It is not advisable for experts to take photograph of photocopies and
base their opinion on such photocopies. Expert should always base his opinion on original documents. When an expert forms his opinion on the basis of
photocopies, I feel that the expert has committed mistake and such report cannot be relied upon in absence of any corroborative evidence, which is not
available at all in this case.
29.The expert should form opinion on the basis of study of original document. The reason being that the pressure points are analyzed by the hand
writing expert for which original are required. In the absence of original documents, the analysis of a questioned document is limited to the features
that survive the copying process. This is like to identify a person behind a cloudy window; the basics are there, but details are missing. What we call
the “three-dimensionality†of the original document is lost. Not to mention that if the copy is a copy of a copy, the details become increasingly
difficult to verify.
30.We can highlight some reasons here as to why the level of certainty of an expert opinion is affected by having only copies to analyze.
Loss of detail â€" intricate pen direction
31.Pen direction is a very critical factor in the evaluation of handwriting. Copies make it difficult and sometimes impossible to follow intricate writing
movements essential for reaching accurate conclusions. Not only is direction important, but also the pressure of the writing instrument can tell us more
about the condition of the writer and the writing surface.
Overall loss of detail â€" beginning and ending strokes
32.Natural writing is frequently demonstrated by the tapered beginning and ending strokes. The copying process can eliminate these tapered
strokes and make them appear as blunt or chopped off in an otherwise naturally executed signature. Sometimes, blunt ending and beginning strokes
are characteristics of “signatures†produced through simulation (emulation) or tracing process.
Loss of detail â€" evaluation of line quality
33.A photocopy of a genuine signature may show “lumpiness†or lack of smooth, clear-cut strokes, resulting in poor line quality (record of the
strokes), when in reality the original document may contain good line quality upon examination. Unexpected visual results
34.If a genuine signature is written under uncommon circumstances, the copying process may make it appear as containing the “tremor of fraud,â€
giving the appearance of poor line quality. With the examination of the original questioned document, it may be possible to determine that there is an
explanation for what appeared to be poor line quality in the copy.
Hesitations
35.Hesitations, a pause in the writing line, generally cannot be detected in copies. Hesitations are common artifacts of “forged†signatures or can
be a habit of the true writer. With only copies for evidence, this significant characteristic cannot be determined.
Patching
36.Patching is the careful retouching sometimes seen in “forged†signatures as a result of the “forger’s†perception that the simulation or
tracing needs some mending to pass it off as genuine. It is also seen in some people’s natural writing but generally cannot be detected and
evaluated in copies.
Fraudulent manipulations
37.Evidence of cut-and-paste of a genuine signature from a genuine document onto the questioned document cannot always be detected, especially if
the genuine signature was added by using computer software.
Tracings
38.Traced signature “guidelines†consisting of pencil, carbon or indentations produced with a stylus which correspond with the outline of the
genuine signature cannot be conclusively established via the examination of a copy.
Writing Instrument
39.While sometimes it is possible with photocopies to make a preliminary determination as to the type of writing instrument used, a definitive
determination cannot be made without the original document.
Paper
40.Paper can sometime be dated as to its first date of availability through use of watermarks, but obviously this determination cannot be made based
on photocopies. Neither can the document be compared as to any other physical characteristics such as the thickness or colour value of the paper.
Indentations
41.Occasionally, “indented writings†can be detected with oblique/side lighting or by using a laboratory device on original documents, revealing
key information that could resolve some critical issue. While this technique can be applied to photocopies for other purposes, it will not reveal the
indentations that are present in the original document.
Measurements
42.Accurate measurements cannot be made on photocopies. As a rule, photocopiers do not precisely reproduce the document being copied. Copies
impede the reliability of tests that include measuring lines and spaces to determine alterations or insertions in a document.
Three-dimensional vs. two-dimensional images
43.Photocopies are two-dimensional representations of original documents, which are three-dimensional. Originals disclose all of the physical and
optical features of the printing processes and handwriting features. On the other hand, photocopies are high contrast images which leave out all of the
mid-tones present in the original images.
44.Originals are always the best evidence. For a more productive result, both questioned and admitted documents should be in original.
45.While considering the question as to whether hand writing expert can give opinion on the basis of photocopy, the Hon'ble High Court of Andhra
Pradesh replied in Bheri Nageswara Rao v. Mavuri Veerabhadra Rao and Ors AIR 2006 AP 314 that:
5. The opinion of a hand writing expert involves the analysis of the slant, which a person uses in the matter of putting his signature, and in some cases,
the point of time, at which it may have been subscribed. These analyses would become possible only vis-a-vis an original signature; and the signature
mark on a xerox copy of a document can never constitute the basis.
46.In the case of Paramesh Chandra Sen (Deceased) and Anr. Vs. Sanjukta Mukherjee AIR 2017 Cal 254 the Calcutta High Court has taken the
same view.
47.Even otherwise opinion of handwriting or finger print expert is a weak type of evidence. Hon'ble the Supreme Court had an occasion to consider
the probative value of opinion of the hand writing expert and as to what weightage should be given to it, the Hon'ble Supreme Court opined in S.P.S.
Rathore v. C.B.I. and Anr. reported in AIR 2016 SC 4486 that evidence of handwriting expert is only opinion evidence and not conclusive. It cannot
be relied upon, unless corroborated by clear direct evidence or by circumstantial evidence. It is thus clear that uncorroborated evidence of a hand
writing expert is an extremely weak type of evidence and the same should not be relied upon either for conviction or for acquittal. The courts, should,
therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before
acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.
48.Thus, the law is clear that the opinion of handwriting expert is relevant but not conclusive. It is a fragile type of evidence. It is only corroborative
evidence. It's probative value is that only on the basis of expert opinion no conclusion can be drawn if there is no other supportive evidence. It is to be
accepted with good amount of circumspection.
49.It is also clear that it cannot be ascertained as to whether the testator signed the Will or not only on the basis of expert opinion based on
photocopies of the Will and if it cannot be established, there is no reason to prosecute the accused persons.
50.Learned counsel for the respondent has placed reliance on the judgement passed by co-ordinate Bench of this court in the case of Narayandas vs.
Smt. Sushiladevi and others passed in MCRC No.8080/2014. In this case the learned Court has framed the question for consideration that ""whether
the handwriting expert's report based on photocopy of the disputed document cannot be considered as an evidence?"" In this case reliance has been
placed on the judgment passed in Bheri Nageswara Rao (supra) in which it is held that report of expert based on photocopy of document cannot be
relied upon; therefore, this judgement is of no assistance for the Respondents.
51.In the case in hand, the handwriting or the finger print experts have not made any efforts to get the photographs from the original Will even when
the same was easily available in the civil suit filed by Respondent No.2 himself, therefore, the comparative signatures on the photocopy of a document,
does not become a reliable source of comparison with the disputed signature or thumb impression. The opinion of the experts based on examination on
photocopy is not in accordance with the science of handwriting examination. Therefore, in my opinion, the reports and expert opinions cannot be given
weightage and are liable to be rejected on this point itself. Conviction cannot be made solely on the basis of such reports. Further, no other
corroboration of these reports is available in the record and in that situation no other result but the acquittal can be recorded. Therefore, prosecution of
the petitioners on such basis is nothing but an abuse of process of law.
52.In the present case, one more fact is very important to observe that the source of procuring documents on which the reports of the expertsÂ
are based is not beyond doubts. I have an opportunity to see the Court statements of both the experts, relying on whose reports,
the learned Judicial Magistrate had taken cognizance and the trial Court has framed the charges and is proceeding with the trial. Both these experts
could not reveal as to how they obtained the documents upon which their reports are based, rather it is very much doubtful as to whether they have
procured these documents through any valid and legally recognised source. In Jagmal Singh Yadav v. Aimaduddin Ahmed Khan,
1994 Supp (2) SCC 308, at page 314 the Hon'ble Supreme Court refused to hold the charge proved against the appellant on the testimony of the
handwriting expert when the source from which the document produced found to be highly tainted and doubtful. This ambiguity, in the backdrop of
unchallenged allegations of the petitioners that the wife and sons of the complainant himself has accepted genuineness and authenticity of the Will and
that he (the complainant/ Respondent No.2) has filed the complaint without impleading them while they are also the beneficiaries of the Will, further
strengthen the doubts regarding intention of the Respondent No.2 behind filing of the criminal proceedings.
53.Admittedly, Petitioner No. 1 has drafted the Will in the course of his profession as he is an advocate and Petitioners No. 2 & 3 are attesting
witnesses of the same. They all are not beneficiaries of the Will. There was no motive for them to fabricate the Will. Respondent no.2/complainant
had waived his rights in the property of his father way back in the year 1991 after executing agreement dated 01.06.1991. The application filed by him
(Respondent no.2) for verification of the signatures and thumb impression by the CFSL is pending in the civil suit. All these facts also show that the
complaint is biased and is filed with malafide intention.
54.The fact is not disputed that the complainant himself has withdrawn his allegations of forgery in the Will made in the civil suit pending between the
parties.
55.This is also important that the complainant instead of waiting for decision on the application pending for examination of the Will by the CFSL opted
for filing of complaint on the basis of reports of experts engaged by him, who never bothered to examined the original documents.
56.Perusal of both the Wills apparently shows and the Respondents have also not disputed that there was no substantial change in the subsequent Will
in devolution of the legacy of the Testator except some changes necessary owing to passage of time and due to change in some circumstances and
the one favourable to the complainant as against the first Wills, where the complainant granted nothing, through this second Will the Testator has
bequeathed a substantial amount to the complainant and his wife and sons. Thus, there was no need for anyone particularly for the petitioners to forge
or fabricate a fake Will that too only for the benefit of the complainant/ Respondent No.2. This itself is sufficient to show that allegations made in the
complaint do not disclose commission of offense even if on face value they are taken to be correct in their entirety. When considered in its entirety,
the nature of dispute between the parties appears to be of civil, which is given colour of criminality.
57.The learned counsel representing Respondent No.2 has argued that mere pendency of civil suit cannot be a ground for quashing the proceedings
pending against the petitioner. He placed reliance on Rashida Kamaluddin Syed Vs Shaikh Saheblal Mardan reported in 2007(3) SCC 548, V.C. Raam
Sukaesh Vs State of M.P reported in 2008(3) JLJ 101, Vikram Vs State of Rajasthan reported in 2015 CRLJ 2447 and Maratt Rubber LTD VS J.K
Marattukalam reported in (2000) 9 SCC 547 where it is held that only due to pendency of civil suit or that civil remedy is available to the complainant,
criminal proceedings initiated against accused-appellants on complaint alleging offenses under Sec 406 and 420 IPC cannot be quashed. But as this is
not the ground for considering the quashment, these pronouncements are not applicable in the present case.
58.The Respondents have further placed reliance on Shivjee Singh Vs Nagendra Tiwarey reported in 2010(7) SCC 578 where it is held that
“Sufficient ground†to initiate the criminal proceedings means satisfaction that a Prima facie case is made out against the accused and not
sufficient ground for securing his conviction.
59.In Goyal M.G Gases PVT LTD Vs Kamaljeet Singh Bhatia reported in 2007(4) M.P.L.J 80 the Court held that while considering the question as to
whether Prima facie case had been made out, it is not necessary to consider the defense of the accused.
60.In S.M Chincholkar Vs State of M.P reported in 2018(2) MPWN 46 it is held that while considering the petition for quashing FIR and Criminal
Proceedings pending before trial court at stage of framing charges, Court required to consider only material placed by prosecution. Material produced
by defense cannot be considered.
61.In Vinod Raghuvanshi Vs Ajay Arora reported in 2014 (1) JLJ 404 the Court stated that Prima Facie satisfaction of court to proceed against
accused is sufficient for taking cognizance in complaint case. Court should not quash criminal proceedings at threshold unless compelling
circumstances to do so exist.
62.In Bhaskar Lal Sharma Vs Monica and others reported in (2014) 3 SCC 383 the Hon'ble Apex Court again guided that the core test that has to be
applied before summoning the accused is that the facts stated against accused have to be accepted as they appear on the vary face of it.
Appreciation, even in a summary manner, of averments made in a complaint petition or FIR is not permissible at the stage of quashment of criminal
proceeding. Facts, as alleged, will have to be proved which can only be done in the course of a regular trial.
63.While keeping in mind all these deciding factors or principles for quashing the criminal proceeding, when we consider the allegations made or the
evidence produced to establish them, without any ambiguity or doubt it appears that in the present case, the criminal proceeding cannot be allowed to
be continued. In this case, the sole ground or base of the criminal complaint against the petitioners is the reports of hand writing and finger print
experts, which itself are based on photocopies of admitted as well as questioned documents and are neither admissible nor reliable and if we keep
them out of consideration, nothing remains on the record to show even prima facie that the signature or thumb impression of the Testator on the Will
are fake or forged. This state of affairs coupled with the fact that attesting witnesses of the impugned Will are proving the Will as genuine, wife and
sons of the complainant have admitted it's genuineness, the complainant himself has withdrawn his allegations of forgery in the Will made in the civil
suit pending between the parties, the petitioners were not going to get any benefits from the alleged forgery as they are not beneficiaries of the Will,
the complainant had already parted his way in the year 1991 by executing the deed, the complainant instead of waiting for decision on the application
pending for examination of the Will by the CFSL opted for filing of complaint on the basis of reports of experts engaged by him, who never bothered
to examined the original documents and most importantly there was no substantial change in the subsequent Will in devolution of the legacy of the
Testator except the one favourable to the complainant clearly shows that allegations made in the complaint do not disclose commission of offence
even if on face value they are taken to be correct in their entirety. When considered in its entirety, the nature of dispute between the parties appears
to be of civil, which is given colour of criminality.
64.Thus, for all forgoing reasons, in the eyes of law, charges under Sections 467 and 468 of IPC are not sustainable against the petitioners.
Continuance of the proceedings in this case would cause gross miscarriage of justice. Therefore, the petition is allowed. The proceedings of Sessions
Trial No.259/13 pending against the petitioners before the Vth Additional Sessions Judge, Indore are hereby quashed qua the petitioners with all
necessary repercussions.
