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2013 DIGILAW 1873 (ALL)

ARIDAMAN KUMAR JAIN v. STATE OF U. P.

2013-07-18

ANIL KUMAR SHARMA

body2013
Anil Kumar Sharma, J. Heard parties counsel at length and perused the record. 2. This revision challenges the order dated 22.2.2013 passed by Addl. C.J.M. Court no. 1, Meerut in criminal case no. 369/9 of 2013 State Vs. Shashi Jain and others, whereby cognizance has been taken against the revisionist and three others on police charge-sheet for the offences punishable u/s 420, 467, 468, 471, 120-B, 504 and 506 IPC Crime no. 354/10 P.S. Railway Road, Meerut. 3. It appears that on the application of opposite party no. 2 u/s 156( 3) Cr.P.C. an FIR was registered in P.S. Railway Road, Meerut at Crime no. 354/10 for the offences punishable u/s 420, 467, 468, 471, 120-B, 504 and 506 IPC. After investigation, the police submitted final report. The opposite party no. 2 filed protest petition and after hearing the learned Magistrate through detailed order dated 18.2.2012 directed further investigation in the case and thereafter the investigation culminated into charge-sheet against the revisionist and three others, whereupon the learned Magistrate after perusing the case-diary and the documents has taken cognizance against the accused persons vide order dated 22.2.2013. Out of the four accused, only the revisionist has come up in revision. 4. The opposite party no. 2 contended in his application u/s 156( 3) Cr.P.C. that Jivandhar Jain and Aridaman Kumar Jain were joint owners of House no. 175, Purva Deen Dayal, Tirthankar Mahavir Marg, Meerut City. Pursuant to registered agreement of sale, Jiwandhar Jain executed sale deed of his share in the house in favour of Smt. Krishna Jain ( mother of opposite party no.2). In the sale-deed Smt. Shashi Jain wife of Jiwandhar Jain was one of the attesting witness. Smt. Krishna Jain applied for mutation of her name before Nagar Nigam along with affidavit of Smt. Shashi Jain and her name was duly mutated. However, after death of Jiwandhar Jain on 2.1.2003, Smt. Shashi Jain and her son Mayank Jain and daughter Megha Jain turned dishonest and in conspiracy with Aridaman Kumar Jain applied for mutation of their names in place of late Jiwvandhar Jain. The application for mutation was filed purporting to be pursuant to order of this Court dated 11.4.2005. They succeeded in getting the name of Smt. Krishna Jain expunged and their names were entered in the records of Nagar Nigam, Meerut. The opposite party no. The application for mutation was filed purporting to be pursuant to order of this Court dated 11.4.2005. They succeeded in getting the name of Smt. Krishna Jain expunged and their names were entered in the records of Nagar Nigam, Meerut. The opposite party no. 2 contended that the heirs of Jiwandhar Jain in active connivance and conspiracy of the revisionist applied for mutation concealing all relevant facts i.e. execution of sale deed by Jiwandhar Jain witnessed by his wife Smt. Shashi Jain, her affidavit dated 21.2.2003. The mother of the opposite party no. 2 after getting knowledge about the misdeeds of the accused persons on 17.12.2009 went to accused persons, who misbehaved, abused and gave life threats to them. The police did not lodge report, so on 7.1.2010 an application was submitted to Deputy Inspector General of Police, Meerut but even then no action was taken by the police, so he has filed applied u/s 156( 3) before the Magistrate. 5. It has been argued by the learned counsel for the revisionist that the dispute between the parties is purely of civil nature as suit for cancellation of sale deed executed by Jiwandhar Jain filed by his legal heirs, and one suit for injunction filed by the revisionist against his brother Jiwandhar Jain are pending. The submission is that if all the allegations contained in the FIR are taken to be correct, even then no criminal offence is disclosed against the revisionist as the rights of the parties are to be adjudicated by the civil court. 6. Per contra learned counsel for the opposite party no. 2 drawing attention of the Court to the counter affidavit has contended that the revisionist and Jiwandhar Jain were co-sharers of the dispute house. The revisionist had filed partition suit no. 710 of 1986, which was decreed and both the parties got half share in the house. On 29.8.2000 Jiwandhar Jain had executed agreement for sale of his share for a sum of Rs. 3.0 lacs in favour of Smt. Krishna Jain mother of opposite party no. 2 and after receiving entire sale consideration the sale deed was executed on 25.6.2001. The sale deed was witnessed by Smt. Shashi Jain wife of Jiwandhar Jain and thereafter name of Krishna Jain was mutated on 11.6.2002. 3.0 lacs in favour of Smt. Krishna Jain mother of opposite party no. 2 and after receiving entire sale consideration the sale deed was executed on 25.6.2001. The sale deed was witnessed by Smt. Shashi Jain wife of Jiwandhar Jain and thereafter name of Krishna Jain was mutated on 11.6.2002. Smt. Krishna Jain did not receive any notice and the order dated 20.9.2005 has been passed exparte; that the application for mutation on the alleged basis of order of this Court dated 11.4.2005 had been filed by the revisionist and Shashi Jain while Mayank Jain and Megha Jain are not signatories of the application. The order dated 11.4.2005 had been passed in Civil Misc. Writ Petition no. 21089 of 2003 arising out of suit no. 567 of 2000 filed by the revisionist against Jiwandhar Jain for permanent injunction regarding partition wall. In this suit the revisionist did not get any interim order up to appeal and thereafter he filed writ petition aforesaid and this Court by order dated 16.5.2003 had directed the parties to maintain status quo and not to alienate the suit property and subsequently the petition was finally disposed of in terms of interim order dated 16.5.2003. On 23.2.2013, the Court has clarified that the words 'disputed property' mentioned in the order dated 11.4.2005 will be construed as 'suit property'. It has been specifically averred in the counter-affidavit that filing of application dated 21.9.2005 for mutation by the revisionist along with other co-accused on the basis of Court's order dated 11.4.2005 passed in writ petition arising out of injunction suit pertaining to boundary wall is a criminal conspiracy with dishonest intention to cheat the mother of opposite party no. 2, thus constitute cognizable offence and the revisionist had been rightly summoned by the Court. 7. In rejoinder affidavit, the revisionist reiterating his earlier stand has charged the mother of opposite party no. 2 to have committed forgery and fraud in getting his name expunged/deleted from the record of Nagar Nigam, as he has not executed any sale deed in her favour. In fact when he came to know about deletion of his name, he moved an application for setting aside and the same was rightly undone in 2005 and the name of revisionist was restored. Against this order no appeal or application has been filed by the mother of opposite party no. 2. In fact when he came to know about deletion of his name, he moved an application for setting aside and the same was rightly undone in 2005 and the name of revisionist was restored. Against this order no appeal or application has been filed by the mother of opposite party no. 2. The revisionist has simply stated about the death of his brother and that his wife, daughter and son are his legal heirs and that it was the authority who decided to record their names in place of Jiwandhar Jain, as such the revisionist has not committed any offence. 8. Upon hearing parties' counsel and on perusal of the affidavits along with other documentary evidence on record, it is apparent that the revisionist has joined hands with the legal representatives of his late brother Jiwandhar Jain to get his name mutated also in the record of the Nagar Nigam qua the house in question, as is clear from the mutation application ( Annexure-5), which reads thus: ^^lasok esa] Jheku~ mi&uxj vf/kdkjh] uxj fuxe] esjB jlhn la0 34@1341 fo"k;%& x`g&dj lEcU/kh uke ifjorZu ds fy;s 1- izkFkZuk i= dh rkjh[k 21&9&2005 2- izkFkhZ dk uke] firk dk uke] firk dk uke] tkfr o fuokl LFkku& vfnjeu dqekj tSu] iq= Jh nsosUnz dqekj tSu] Jherh 'k'kh tSu ifRu Jh thou/kj tSuA 3- orZeku Lokeh dk uke & vfjneu dqekj tSu] thou/kj tSuA 4- Hkkoh Lokeh dk uke & vfjneu dqekj tSu] iq= Jh nsosUnz dqekj tSu] Jherh 'k'kh tSu ifRu Jh thou/kj tSu] es?kk tSu iq=h thou/kj tSu] e;ad tSu iq= thou/kj tSuA 5- eqgYys dk uke& iwokZ nhun;kyA 6- x`g la[;k & 75A 7- mi{ks= ¼gYds½ dk uke & 55A 8- lEifRr gLrkUrfjr i= dk ladsr & thou/kj dh e`R;q ds mijkUr mPp U;k;ky; bykgkckn ds fu.kZ; vkns'k 11&4&2005 ds ifjizs{; esaA g0 vfjneu dqekj tSu g0 'kf'k tSuA** 9. This application clearly depicts ill-design, conspiracy and criminal intention of cheating of the revisionist. He very well knew that he is not the legal representative of his brother late Jiwandhar Jain as he was survived by his wife, son and daughter. It is incorrect to say that he simply informed about the death of his brother to Nagar Nigam authorities. This application clearly depicts ill-design, conspiracy and criminal intention of cheating of the revisionist. He very well knew that he is not the legal representative of his brother late Jiwandhar Jain as he was survived by his wife, son and daughter. It is incorrect to say that he simply informed about the death of his brother to Nagar Nigam authorities. He has applied for mutation of his name also along with the legal representatives of Jiwan Dhar Jain and signed the application along with Smt. Shashi Jain w/o Jiwan Dhar Jain. It is pertinent to note that the name of mother of opposite party no. 2 was mutated in the record of Nagar Nigam in place of late Jiwandhar Jain along with the revisionist and not as exclusive owner of the entire house, as is clear from Annexure-3. This Court vide order 11.4.2005 simply directed the parties to maintain status quo and not to alienate the suit property. These acts and actions of the revisionist do not affect the pendency of other civil suits for criminal prosecution of the revisionist. 10. At the stage of taking cognizance the Court is required to consider the averments made in the charge-sheet or the complaint, as the case may be, and the evidence ( oral or documentary) collected by the investigating officer during investigation. He is not supposed to sift or appreciate the evidence meticulously. The disputed defence of the accused cannot be considered by the revisional Court as well. At this stage, the Magistrate has to apply his judicial mind to the material placed before him to find out whether any prima facie case is made out for proceeding further in the matter. Whether the evidence is adequate or sufficient for supporting the conviction of the accused can be determined only at the stage of trial and not at the stage of issuing process against the accused. He is also not required to record reasons for doing so. 11. In the case of Kishun Singh Vs. State of Bihar ( 1993) 2 SCC 16 , the Apex Court has observed that in legal parlance, the act of taking cognizance is with reference to the offences and not with reference to the offenders. He is also not required to record reasons for doing so. 11. In the case of Kishun Singh Vs. State of Bihar ( 1993) 2 SCC 16 , the Apex Court has observed that in legal parlance, the act of taking cognizance is with reference to the offences and not with reference to the offenders. As such, while taking cognizance the Magistrate must be deemed to have taken cognizance of the entirety of the case in respect of all offences disclosed by the materials collected in the shape of statements recorded under Section 161 Cr.P.C. and of the documents enclosed along with the report filed by the police. 12. In view of the above discussion, it is found that the learned Magistrate has not committed illegality or material irregularity or jurisdictional error in taking cognizance of the case against the revisionist. The revision lacks merit and is accordingly dismissed.