Rakesh Sabharwal and Anr. v. State and Anr.

1. By way of present petition, the petitioners seek quashing of the order dated 28.03.2023 passed by learned ASJ, Rohini Courts, Delhi in Cr. Rev. No. 371/2022 titled ‘Rakesh Sabharwal v. State & Others’, whereby the learned ASJ has upheld the order of the learned CJM dated 11.11.2022 allowing respondent No.2’s application under Section 156(3) Cr.P.C.

2. Briefly stated, respondent No.2 filed a complaint case against the petitioners under Section 200 Cr.P.C. alongwith an application under Section 156(3) Cr.P.C., as per which, Late Sh. Khirati Lal Sabharwal, father of the petitioners herein, executed a Will dated 17.03.1994 bequeathing second floor of the property bearing No.B-3/8, Ashok Vihar, Phase-2 (hereinafter, ‘subject property’) in favour of respondent No.2, son of Late Sh. Khirati Lal Sabharwal’s brother. As per the case of respondent No.2, the said Will was executed in continuation of a handwritten note dated 26.01.1990, which was also signed by the petitioners. However, the petitioners have contested the same by stating that Late Sh. Khirati Lal Sabharwal had executed his last and final Will dated 22.02.2010 in the presence of father of respondent No.2 and one Karan Sabharwal, by way of which he bequeathed the subject property exclusively in favour of his three sons, i.e., Rakesh Sabharwal, Anil Sabharwal (the petitioners herein) as well as Arun Sabharwal (now expired). After the death of Late Sh. Khirati Lal Sabharwal on 30.09.2010, the petitioners got the subject property mutated in their names vide Mutation Letter No. Tax/RZ/PP/2011/3783 dated 22.12.2011. Subsequently, the petitioners were also granted Letter of Administration (hereinafter, ‘LOA’) vide order/judgment dated 10.03.2015. Respondent No.2 has alleged that the Will dated 22.02.2010 is forged. To substantiate his claim, he has relied on expert opinion obtained from Truth Labs, Delhi, that the signatures on the said Will did not match with the admitted signatures of Late Sh. Khirati Lal Sabharwal. When the complaint case came up for consideration before the learned CJM, an ATR report was called for, and after considering the totality of the facts, learned CJM allowed respondent No.2’s application under Section 156(3) Cr.P.C.

3. Learned counsel for the petitioners submits that the present case is purely a civil dispute in the garb of a complaint case and that learned ASJ erroneously and wrongly concluded that there is no infirmity in the findings of learned CJM allowing respondent No.2’s application under Section 156(3) Cr.P.C. It is contended that the petitioners being the biological sons of Late Sh. Khirati Lal Sabharwal were the natural successors to his estate. In regard to the disputed Will, it is submitted that Late Sh. Khirati Lal Sabharwal executed his last and final Will on 22.02.2010 in the presence of father of respondent No.2/Late Sh. Prem Nath Sabharwal and Karan Sabharwal (son of Arun Sabharwal), bequeathing the subject property exclusively and solely in favour of his three sons. It is further submitted that after the death of Late Sh. Khirati Lal Sabharwal, the petitioners had applied for mutation of the subject property, granted to them vide Mutation Letter No. Tax/RZ/PP/2011/3783 dated 22.12.2011. Thereafter, upon receiving the original Will dated 22.02.2010 from Late Sh. Prem Nath Sabharwal (father of respondent No.2), who had duly witnessed and attested his signatures on it, the petitioners filed PC No.45/2013 seeking LOA. It is pointed out that during the course of the aforesaid proceedings, Late Sh. Prem Nath Sabharwal had filed his sworn affidavit dated 31.08.2013 stating on oath that Late Sh. Khirati Lal Sabharwal signed the Will dated 22.02.2010 in the presence of himself and Karan Sabharwal, and that at the time of execution of this Will, Late Sh. Khirati Lal Sabharwal was in good health and sound state of mind. It is the case of the petitioners that despite all documentation and evidence in support of the petitioners, respondent No.2 is mischievously and frivolously claiming unauthorised share in the subject property and has filed a frivolous application dated 14.11.2018 for cancellation of mutation as well as CP No. 138/241/242/ND/2019 before NCLT. Moreover, respondent No.2 even went to the extent of filing a false complaint against the petitioners on behalf of his mother, which led to the registration of FIR No.725/2022 under Section 354 IPC at P.S. Ashok Vihar, Delhi. Furthermore, in March 2022, respondent No.2 also filed an application under Section 263 of the Indian Succession Act 1925, praying for revocation/annulment of the LOA granted to the petitioners vide order/judgment dated 10.03.2015. Learned counsel submits that the same came to be dismissed by the concerned Court on 14.08.2023 on the ground of limitation, it being filed 7 years after the conclusion of the proceedings. Even otherwise, reference is made to Sections 41-43 of the Indian Evidence Act, 1872 to submit that the order/judgment dated 10.03.2015 passed in favour of the petitioners is conclusive proof of conferring legal character in favour of the petitioners, thus, being a judgment in rem against respondent No.2. Lastly, it is submitted that the learned CJM gave undue importance to the report of a private laboratory used to raise doubt as to the signature attested on the contested Will, and failed to appreciate that the two signatures in question, i.e., on the Will dated 17.03.1994 and 22.10.2010, respectively, were two decades apart and could not be reasonably compared to allege forgery.

4. On the other hand, the petition is resisted on behalf of respondent NO. 2. Learned Senior Counsel for respondent No.2 submits that Late Sh. Khirati Lal Sabharwal had executed a registered Will dated 17.03.1994 by way of which second floor of the subject property was bequeathed to respondent No.2. In fact, the said Will was in continuation of a handwritten note dated 26.01.1990, which is in the nature of a family settlement, not only substantially narrating the contents of the said Will, but is also signed by the petitioners. It is further contended that the contested Will dated 22.02.2010 is forged by the petitioners inasmuch as firstly, at the time of filing an application for mutation of the subject property, it was admitted by the petitioners that their father/Late Sh. Khirati Lal Sabharwal had expired without a Will. Secondly, it is conceded that the contested will is unregistered as opposed to the Will dated 17.03.1994, which was duly registered. Thirdly, reliance is placed on expert opinion obtained from Truth Labs, Delhi, wherein it was opined that the signatures of Late Sh. Khirati Lal Sabharwal on the Will dated 22.02.2010 did not match with his admitted signatures. It is also pointed out that the same was, in fact, duly considered by the learned CJM while allowing respondent No.2’s application under Section 156(3) Cr.P.C. Lastly, it is submitted that as regards the petitioners’ contentions as to the witnesses of the Will dated 22.02.2010, while the first witness, Late Prem Nath Sabharwal had expired in October 2014 before he could be examined on oath, the second witness, Karan Sabharwal, stated in his affidavit that he had witnessed the execution of the said Will on 22.02.2010, however, it is pointed out that he was not in India at the relevant time and only came back on 23.02.2010. It is further contended that forgery of the contested Will is a criminal offence which must be investigated. It is pointed out that the very fact that the petitioners did not produce the Will dated 20.02.2010 when they applied for mutation of the subject property, which only surfaced in 2011, goes to show malice on part of the petitioners. It is stated that the Will dated 20.02.2010 was forged by the petitioners only with the intention of defeating the rights of respondent No.2 which were bequeathed on him by virtue of the registered Will dated 17.03.1994. Lastly, it is submitted that in the present case, investigation is necessary to establish the forgery through an authentic forensic laboratory and to obtain the specimen handwriting and signatures of the petitioners to ascertain as to who had committed the forgery and who all were involved in the conspiracy. It is stated that cognizable offences were disclosed in the complaint and therefore, learned CJM’s order directing the registration of FIR against the accused persons is good in law.

5. I have heard learned counsels for the parties and perused the material on record.

6. A perusal of the complaint as well as the impugned order would show that the issue in the present case pertains to allegations of forgery of the Will dated 22.02.2010. As per the findings in the order of the Trial Court, the signatures on the said Will are prima facie different than the admitted signatures of Late Sh. Khirati Lal Sabharwal, when compared with the signatures on the Will dated 17.03.1994 as well as the Conveyance Deed of the subject property issued by DDA. Moreover, while the Will dated 17.03.1994 is admittedly registered, the Will dated 22.02.2010 remained unregistered. Furthermore, while there is an affidavit on record of one of the witnesses to the Will dated 22.02.2010, namely Karan Sabharwal, filed before the Probate Court, wherein he has stated that the said Will was signed in his presence, however, during the course of arguments, it was conceded that the aforesaid witness was not in India on the day of the alleged execution of the Will and he only returned on 23.02.2010 i.e., a day after. It is also noted that the Trial Court had duly considered the ATR filed on behalf of the police as well as the aforesaid affidavits before allowing respondent No.2’s application filed under Section 156(3) Cr.P.C.

7. In light of the above-noted facts and circumstances, this Court finds no grounds to interfere with the impugned order. Accordingly, the present petition is dismissed alongwith pending applications.

MANOJ KUMAR OHRI (JUDGE) DECEMBER 06, 2024