ASHOK KUMAR TYAGI Vs. STATE OF U. P.

JUDGEMENT

(1.) This criminal revision has been filed against the order dated 13.01.2014 passed by Additional Chief Judicial Magistrate, Court No.5, Ghaziabad in Criminal Case No.373 of 2010 (Baleshwar Dayal Vs. Ashok and others), under Sections 420, 467, 468, 471 I.P.C., P.S. Kavi Nagar, District Ghaziabad, by which final report no.439 of 2011 dated 29.6.2011 was rejected and the revisionist no.1 Ashok Kumar Tyagi, revisionist no.2 Smt. Reena Tyagi and Ram Nath Tyagi were summoned.

(2.) The brief facts of the case are that the opposite party no.2 Baleshwar Dayal Tyagi is residing in Canada for last 32 years having nationality of Canada. The opposite party no.2 had purchased a plot on 28.6.1991 bearing no.R-9/4 area 1266.66 square yard situated in Raj Nagar Colony, Ghaziabad. Since the opposite party no.2 was residing at Canada, he executed a power of attorney and will deed on 1.1.1991 in favour of revisionist no.1, who is brother-in-law (Sala) of opposite party no.2, to look after his property. Since the revisionist no.1 is close relative of opposite party no.2 as such the opposite party no.2 had full faith on him but in the year 2007 opposite party no.2 knew that revisionist no.1 is going to misappropriate his property and as such he cancelled the power of attorney as well as the will deed on 6.3.2007 which was earlier executed in favour of revisionist no.1. The information regarding cancellation of power of attorney and will deed was sent on 16.3.2007 through U.P.C. as well as by registered post and revisionist no.1 was also informed on telephone by the opposite party no.2. Opposite party no.2 had also informed to the Sub Registrar, Ghaziabad as well as Secretary, Ghaziabad Development Authority on 19.3.2007 to the effect that he had already cancelled the power of attorney which was executed in favour of revisionist no.1 and now revisionist no.1 has no authority to sell out his property through power of attorney. In spite of cancellation of power of attorney the revisionist no.1 executed a sale deed in favour of M/s Karb Constructions Pvt. Ltd. on 20.3.2007 in which Ram Nath Tyagi, father-in-law of revisionist no.1 was the director. The opposite party no.2 had lodged a F.I.R. against revisionist no.1 Ashok Kumar Tyagi as well as against Ram Nath Tyagi (father-in-law of the revisionist no.1) on 31.1.2008 and the case was registered as Case Crime No.96 of 2008, under Sections 467, 468, 471, 420 I.P.C. in P.S. Kavi Nagar, District Ghaziabad.

(3.) During investigation the opposite party no.2 alleged that his bank account was fraudulently re-opened by the revisionist no.2 who is wife of revisionist no.1 and as such the revisionist no.2 was also implicated as accused in the aforesaid case. The Investigating Officer after investigating the matter had submitted the final report on 30.5.2009 which was rejected by the court below on the objections of opposite party no.2 and direction was issued for re-investigation. The Investigating Officer again had submitted the final report on 29.6.2011 on the ground that no offence was found against the accused persons and disputes between the parties are of civil nature and already a civil suit being O.S. No.162 of 2008 is pending between the parties. Aggrieved with the final report dated 29.6.2011 the opposite party no.2 had filed protest petition on 18.1.2012 stating therein that power of attorney was cancelled much prior to execution of sale deed and the accused persons have committed fraud to misappropriate the property of the opposite party no.2. There are ample evidence against the accused persons and they are guilty to commit offence under Sections 467, 468, 471, 420, 465, 466 I.P.C. The learned Magistrate vide order dated 13.1.2014 had accepted the protest petition and the final report no.439 of 2011 dated 29.6.2011 was rejected and had taken cognizance under Section 190(1)(b) of Cr.P.C. and summoned the accused persons Ashok Kumar Tyagi, Ram Nath Tyagi and Smt. Reena Tyagi under Sections 420, 467, 468, 471, 120-B I.P.C. The order of learned Magistrate dated 13.1.2014 is challenged by Ashok Kumar Tyagi and Smt. Reena Tyagi through present criminal revision.