RAMESH CHANDRA BHATIA Vs. STATE OF U P

JUDGEMENT

(1.) Applicant Ramesh Chandra Bhatia has approached this court u/s 482 Cr. P. C., praying for quashing of the impugned order dated 6.11.2009, by which his prayer for discharge from offence u/s 420 IPC passed in Complaint Case No. 2872 of 03, Rajesh Bhatia Vs. Ramesh Chandra Bhatia and another, has been rejected by Vth Metropolitan Magistrate, Kanpur Nagar. Ancillary interim prayer is for stay of trial court's proceedings till the final decision of this Application.

(2.) Before delving upon applicants submissions and negation thereof by the rival sides, a brief narration of input facts indicate that Complaint Case No. 2872 of 2003, Rajesh Bhatia versus Ramesh Chandra Bhatia and another was instituted by complainant respondent no. 2 in the court of CMM, Kanpur Nagar on 5.7.2003 against accused applicant Ramesh Chandra Bhatia and one Rajesh Agrawal, Territory Manager, Bharat Petroleum Corporation, u/s 406, 420, 409, 120 B IPC, P.S. Nazirabad, district Kanpur Nagar, alleging therein that complaint's father Late Prakash Lal Bhatia was the joint owner of 1/5th share of plot No. 111A/10, Ashok Nagar, area 1803.14 square yards regarding which O.S. No. 1577of 95, was pending before Civil Judge, Senior Division. Aforesaid Original suit was decreed on 3.11.1996, on the basis of a compromise between plaintiff and defendants, dated 5.2.1996.Complainant's father Late Prakash Lal Bhatia was declared to be joint owner of said property along with Ram Swaroop Bhatia, Subhash Bhatia, Amar Nath Bhatia and Ramesh Chandra Bhatia and 1/5th share of it was bestowed on him. It seems that compromise decree was executed and it attained finality as none of the contesting sides in this application mentioned that it was challenged in any higher forum. It is alleged that subsequent to the said decree, applicant, by projecting himself as the sole owner of the entire property, inked a lease deed on 23.7.2002, for thirty years, in favour of Bharat Petroleum Corporation, at the lease rent of Rs. 21000/- per month, and on behalf of Corporation it was signed by co accused Rajesh Agrawal. This lease deed, was presented on 24.7.2002, which is the date of it's execution. Prior to it's execution said lease agreement was unbeknown to the complainant and when he gained it's knowledge, he brought the said fact in the knowledge of Bharat Petroleum Corporation but with no result. Inspite all possible efforts neither one fifth share of the lease rent was given to the complainant nor any action was taken by the Corporation against the applicant and therefore complainant became convinced that in conspiracy with each other lease deed with feign contents was executed to deprive and cheat the complainant of his legal entitlement of lease rent and therefore, both the Corporation and the applicant had committed offence u/s 420 IPC. Through Sri Rajeev Sachdeva advocate, a registered notice was given by the complainant, respondent no.2, to the applicant and other accused on 3.3.2003 which was followed by another notice dated 6.5.2003, through Sri Rakesh Srivastava, Advocate, demanding one fifth share of the lease rent and also demanding that shares of other shareholders of lease rent be also parted with but inspite of receiving both the notices, demand made thereunder went unheeded and no action was taken by the Corporation, and therefore, left with no option, respondent no. 2 lodged a complaint, annexure no.1, on 5.7.2003 against the two accused including the applicant before Additional Chief Metropolitan Magistrate.

(3.) Following procedure of complaint case,1st ACMM Kanpur Nagar, recorded statement of the complainant u/s 200 Cr.P.C. vide annexure no. 2 in which complainant reiterated his complain allegations and stated that his entitlement of lease amount was not given to him. Manmohan Bhatia was examined by the complainant as his witness u/s 202 Cr.P.C. Looking into the complaint allegations and statements of witnesses during inquiry, 1st ACMM, Kanpur Nagar summoned the applicant and Rajesh Agrawal only for the offence u/s 420 IPC and fixed 30.9.2003 for their appearance, vide order dated 20/21.8.2003.