ANIL KUMAR JAIN Vs. PARITOSH JAIN

JUDGEMENT

(1.) PRESENT petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. has been preferred by the petitioners to set aside a order dated 10.09.2012 of learned Metropolitan Magistrate whereby they were summoned to face proceedings for commission of offence punishable under Section 448 IPC. I have heard the learned counsel for the parties and have examined the record. The petitioners and respondent No.1 are brothers. Property bearing No. A-60, Gulmohar Park, New Delhi belonged to their father ­ Paras Dass Jain who expired on 30.09.2007. The brothers are claiming share in the said property. Petitioners' case is that Paras Dass Jain executed a Will dated 24.07.2006 in their favour and respondent No.1 was disinherited from the property due to his conduct and behavior. The respondent No.1 who was earlier in possession of the second floor of the property in question had left to stay in C-77, Lajpat Nagar, New Delhi. He intended to forcibly take possession of the second floor after the death of their father and the petitioners filed a suit for Permanent Injunction which is pending before the Civil Court. Section 441 IPC is not attracted as the petitioners were owner of the property. Respondent's claim is that second floor of the property in question was in his exclusive possession and the petitioners took its possession forcibly and set up a forged Will.

(2.) RECORD reveals that complaint case under Section 420/468/471/448/506/380/120 B IPC read with Section 156(3) and 190 Cr.P.C. was lodged by respondent No.1 against the petitioners, L.L.Acha & Surender Kumar Jain. On receiving the complaint, the Metropolitan Magistrate decided to hold an enquiry into the complaint himself and recorded evidence. After hearing arguments and considering the evidence, he by his order dated 10.09.2012 directed process to be issued only against the present petitioners for committing offence under Section 448 IPC. The Metropolitan Magistrate gave cogent reasons for holding that there were sufficient grounds for proceeding against the petitioners. He took into consideration various documents i.e. Ex.CW-1/E (letter written to National Stock Exchange by Paras Dass Jain confirming his possession); Ex.CW-1/F (copy of ICICI Bank letter along with copy of cheque at the address of premises at Gulmohar Park); Ex.CW-1/G (certified copy of membership of Sports Community Center); Ex.CW-1/I (Jain Co-operative Bank confirming the address) besides complaint Ex.CW-1/B lodged by his deceased father. The petitioners have not challenged the genuineness and authenticity of the said documents. The Trial Court also took into consideration the report of the Local Commissioner in Civil Suit filed by the petitioners. The petitioners are not categorical as to on which specific date the respondent No.1 vacated the second floor which was earlier in his exclusive possession. The impugned order issuing process against the petitioners is a very well reasoned one which took into consideration the allegations in the complaint as also the evidence adduced in support of it. The Metropolitan Magistrate clearly applied his mind and analyzed the evidence minutely. It is not a case where he had passed an order issuing process in a mechanical manner or just by way of routine. The fact that the petitioners were not summoned for committing offence under Section 468/471/506 IPC and no process was ordered to be issued against L.L.Acha and Surender Kumarn Jain reflects that there was application of mind.

(3.) IN the light of above discussion, the petition is unmerited and is dismissed. It is however made clear that observations in the impugned order and this order shall have no impact on the merits of the case. Pending application also stands disposed of being infructuous.