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2013 DIGILAW 972 (PAT)

Amit Kumar Roy v. State Of Bihar

2013-08-08

SHIVAJI PANDEY

body2013
ORAL ORDER 1. Heard learned counsel for the petitioner, for the O.P.No.2 and the State. In this case, petitioner is challenging the order dated 10th October 2012 passed in Complaint Case No. 2405C of 2012 by the Judicial Magistrate, Patna whereby and whereunder the court has taken cognizance u/s 467, 468, 471, 120B IPC. 2. Binod Kumar Roy and Hari Krishna Roy @ Harry Krishna Roy are brothers of Ram Krishna Roy are emigrants to USA and residing there, whereas accused No.4 is sister in-law of the complainant. In the complaint petition, it has been alleged that father of Ram Gopal Roy died in the year 2004, left his last will executed in the year 2000 showing shares of his sons and Usha Roy in the property which was known to all the accused persons. Allegation has been made Usha Roy, widow of Ram Niranjan Roy disposed of maximum property of her share and accused nos.5 and 6 have also disposed of some portion of property of their share where Usha Rai is one of witnesses. In order to disturb the complainant, on 18th May 2012 accused persons hatched conspiracy and got executed power of attorney by accused Nos. 4, 5 and 6 in favour of accused Nos. 1, 2 and 3 and the petitioner is one of the power of attorney holder and as per the power of attorney, they are required to look after the Raiyati land situated in Mauza Bhusala Danapur, Mohammadpur Kurji and Saidpur respectively. In the said power of attorney, it has wrongly been mentioned that no partition had taken place amongst the brothers. In Para-8 of complaint petition it has been specifically stated that power of attorney dated 18th May 2012 has been notarized on 25th May 2012 before the Notary Public Sri A.N.Ambashtha, when they were not staying in India. 3. It has been alleged that notarization of power of attorney has been done when those persons were outside India and accused nos.1, 2 and 3 have wrongly been using the power of attorney for ulterior purposes. In support of contention, the complainant appeared, made statement his on S.A. and supported by other witnesses. The court has taken cognizance of the offences as aforesaid. In support of contention, the complainant appeared, made statement his on S.A. and supported by other witnesses. The court has taken cognizance of the offences as aforesaid. Counsel for the petitioner submitted that power of attorney does not give any right to transfer or sell the property rather it gives right to do the management of the property. Learned counsel for the petitioner submits that power of attorney does not bear date 25th May 2012 whereas counsel for the other side submits that the O.P.Nos. 5 and 6 who were signatory to the power of attorney were not in India but the said power of attorney has been notarized in their absence as on that they were outside India. According to Para-8 and 11 of complaint petition, accused Nos. 4, 5 and 6 were not in India and left for U.S. on 19th May 2012 in the morning and also submitted that the informatory petition bears forged and fabricated signature of all the three accused persons which can be verified by the Vakalatnama attached. 4. This Court is not in a position to find out actual state of affair and does not feel swayed away with the argument of the petitioner that it requires interference by this Court and, as such, this Court refuses to interfere in the matter. The court below while conducting trial, will call the record maintained by Advocate, who has notarized the power of attorney and after proper examination of the same and taking evidence during the court will pass order in accordance with law. The file which has been called for by this Court is remitted back to the same court along with original power of attorney which has been filed before this Court by the petitioner and also the true copy of power of attorney filed before this Court and the petitioner will have liberty to also file the certified copy of power of attorney which has been filed before this Court by way of Annexure-B to the counter affidavit and the court will examine each power of attorney and the record as mentioned above. The power of attorney which is being remitted by this Court will be treated to be part of the court record of the court below and the parties will have liberty to prove contents of the documents in accordance with law through the proper witnesses. The power of attorney which is being remitted by this Court will be treated to be part of the court record of the court below and the parties will have liberty to prove contents of the documents in accordance with law through the proper witnesses. With this observation, this petition is dismissed.