SOHRAT Vs. STATE OF U.P.

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed with a prayer to issue a writ, order or direction in the nature of certiorari quashing the order dated 2.9.2005 passed by the Ist Addl. Civil Judge (Junior Division), Basti in criminal complaint case no. 297 of 2004 (Ram Samujh v. Sohrat & others), under Sections 419, 420, 467, 468 IPC and judgment and order dated 2.8.2008 passed by the Sessions Judge, Basti in Criminal Revision No. 746 of 2005 (Sohrat & others v. State of U.P. & others).

(2.) The facts are that respondent no. 2 filed a criminal complaint in the court of J.M. Sadar against the petitioner and co-accused Ajmat Ali, Ram Kewal, Hari Prasad and Ram Sagar alleging therein that he had executed a gift deed in favour of his nephew Ram Bariksha son of Paras Nath on 1.11.2003 and had also executed will in favour of Ram Bariksha, respondent no. 3. His action was not liked by his brothers Chaitu and Sohrat, and they, with intention to grab the property of the complainant, prepared a forged ante-dated document of 15.7.1999, which was not actually executed by the complainant, nor bears his thumb impression, nor the complainant borrow any money from Sohrat and Cahitu and did not deliver the possession of the property in their favour. This document was prepared with the help of Ajmat Ali, Ram Kewal, Hari Prasad and Ram Sagar. This forged document came to knowledge of the complainant on being filed in the civil suit. The complainant examined himself under Section 200 Cr.P.C. and also examined Paras Nath, Ram Bilas and Ajmat Ali under Section 202 Cr.P.C. Learned Addl. Civil Judge (J.D.)/Judicial Magistrate, Basti vide order dated 2.9.2005 summoned the accused Sohrat, Ram Kewal and Hari Prasad to face trial under Sections 419, 420, 467, 468 IPC. Feeling aggrieved, the accused persons including the petitioner filed criminal revision no. 746 of 2005, which was dismissed vide judgment and order dated 2.8.2008 passed by the Sessions Judge, Basti. Subsequently, after creation of district- Sant Kabir Nagar, the case was transferred and is now pending in the Court of C.J.M., Sant Kabir Nagar and has been registered as criminal case no. 1090 of 2004. Both the aforesaid orders are under challenge in this writ petition.

(3.) Learned counsel for the petitioner submits that petitioner, respondent no. 2 and Chaitu are brothers. Respondent no. 2 took a loan of Rs. 20,000/- from the petitioner and late Chaitu and in lieu thereof mortgaged his bhumidhari land in favour of the petitioner and Chaitu and handed over possession of the same. For this purpose, respondent no. 2 also executed a written document (mortgage deed) on 15.7.1999 (Annexure no. 1). Surprisingly, respondent no. 2 executed a gift deed in favour of respondent no. 3 regarding the same land. Coming to know about the gift deed, the petitioner and his brother late Chaitu filed civil suit no. 164 of 2004 in the court of Civil Judge (J.D.), Khalilabad, Basti for cancellation of gift deed as well as for permanent injunction and as a counter blast, this complaint has been filed by respondent no. 2. It is further submitted that learned Magistrate passed the impugned summoning order without applying his judicial mind. Neither the trial court, nor the revisional court considered the fact that a civil suit is pending in respect of the land in question and the respondents had full opportunity to put his case before the Civil Court and no criminal offence is made out. It was contended that dispute is of a civil nature and no criminal offence is made out.