VIRENDRA KUMAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The present case depicts a very sad story. It shows how the local police joined hands with respondent No. 3, a man with money-power and Sub-Divisional, Magistrate, Nagina District Bijnor, respondent No. 2 fell in their trap. The learned Magistrate accepted the case of respondent No. 3 and the police report as true and in exercise of power conferred by law initiated proceeding under Section 145, Cr.P.C. attached and appointed receiver in respect of a shop in question and consequently dispossessed the petitioner from his rightful possession.

(2.) The facts of the case emerging from the materials on record may be stated thus:

(3.) The case of respondent No. 3 in his counter-affidavit is that, since there was talk of compromise between him and the petitioner, the tenant, he withdrew the suit and agreed to accept the rent deposited by the petitioner. Finally compromise was effected and the shop in question being very old and dilapidated and not fit for carrying out any business, the petitioner vacated the premises on accepting a sum of Rs. 50,000.00 and executed a memorandum of transfer of possession in presence of two witnesses. But later on, he developed ill motive to grab the property and threatened to take forcible possession for which he had no other alternative but to approach the Magistrate for initiating a proceeding under Section 145, Cr.P.C. In the rejoinder affidavit, the petitioner has refuted the assertion of respondent No. 3. Challenging the genuineness of the memorandum of transfer of possession which respondent No. 3 has sought to use as a trump card in support of his possession, he has urged that in the petition filed for initiating proceeding under Section 145, Cr.P.C. no mention was made about existence of the aforesaid document and also the compromise to have been effected out of Court. Till passing of the preliminary order under Section 145(1) and order of attachment under Section 146, Cr.P.C. the aforestated document was not brought on record nor any reference thereof was made by the learned Magistrate in his orders. He has emphatically urged that the document in question was fabricated in collusion with and S.H.O. Nagina P.S. to concoct the present case. He denied to have entered into compromise out of Court and vacated the house in question where had his running business. He asserted that unable to evict him through legal process, respondent No. 3 cooked up this case in collusion with the Sub-Divisional Magistrate, Nagina and the local police and got him illegally evicted from the shop.