SUBHANK PRAKASH Vs. STATE OF U P

JUDGEMENT

(1.) This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire criminal proceedings of criminal case No. 2542 of 2008 arising out of crime No. 218 of 2008 under Sections 209, 420, 467, 468, 471, 120B and 506 IPC, P.S. Milak, District Rampur (State v. Subhank Prakash and others) pending in the Court of A.C.J.M.-I, Rampur.

(2.) Sri Viresh Misra, learned senior advocate submitted on behalf of the applicants that Smt. Neerja Gangwar was not the sole heir of Digvijay Pal Singh. Digvijay Pal Singh left his mother Resham Pyari @ Resham Devi and his young wife Smt. Neerja Gangwar at the time of his death. In the year 2002, Digvijay Pal Singh executed a Will in favour of the applicants as well as his wife Smt. Neerja Gangwar. He was suffering from lever cancer. It was mentioned in the Will that he was being looked after by his wife, sister-in-law (applicant No. 2) and nephew (applicant No. 1). There was a provision in the Will that after his death, if Smt. Neerja Gangwar decided to remarry, she would be given a sum of Rs. 5 lacs by the applicants and his property shall be inherited by the applicants, but if Smt. Neerja Gangwar did not remarry, she would be entitled to inherit 1/10 share of the property of Digvijay Pal Singh and remaining 90% share shall be inherited by the applicants. Learned counsel for the applicants submitted that purpose of the Will was that the family property must remain in the family. He further submits that at the time of death of Digvijay Pal Singh, his mother Resham Pyari @ Resham Devi was alive and she also executed a Will on 12.12.2002 in favour of his grandson Subhank Prakash (applicant No. 1), who was a minor at that time.

(3.) Learned counsel for the applicants submitted that both the Wills executed by Digvijay Pal Singh and his mother Resham Pyari @ Resham Devi are genuine and are not forged. Since 10% share was given to Smt. Neerja Gangwar through Will, Smt. Neerja Gangwar remained a co-sharer of the applicants and, therefore, no exception can be taken to the fact that the applicants and Smt. Neerja Gangwar jointly executed sale-deeds of some small portions of the land and applicant No. 2 was a marginal witness of two sale-deeds executed by Smt. Neerja Gangwar. The contention is that admittedly Smt. Neerja Gangwar is a co-sharer having 10% share, therefore, simply by admission of Smt. Neerja Gangwar as co-sharer, it does not mean that she has a 50% share. Learned counsel further submits that the complainant is a builder and a colonizer. Smt. Neerja Gangwar did not have any authority to sell more than 1/10 share of the property left behind by her husband Digvijay Pal Singh. More so, there was no actual partition between the parties by metes and bounds and, therefore, specific portion of the property could not have been sold by Smt. Neerja Gangwar to the complainant. The only intention of the complainant was to hurriedly and surreptitiously buy the piece of land situated strategically near the Highway without paying proper stamp duty and, therefore, applicants immediately filed their objections before the mutation Court and filed the Will dated 1.5.2002 executed in their favour by Late Digvijay Pal Singh. The applicants have also filed five revenue cases No. 136, 137, 138, 139 and 140 of 2007-08 in the Court of Tehsildar on 4.10.2008 under Section 34 of the L.R. Act against Smt. Neerja Gangwar seeking correction in the revenue records; and the revenue Court, by interim order dated 4.10.2007, had restrained Smt. Neerja Gangwar from transferring any part of land during pendency of the case. It was further submitted that Smt. Neerja Gangwar instituted Original Suit No. 218 of 2007 in the Court of Civil Judge (Sr. Div.), Rampur against the applicants and also impleading the complainant as a proforma defendant on 7.11.2007 seeking a relief of cancellation of Will dated 1.5.2002 (copy of plaint is Annexure 5). The applicants have also filed Original Suit No. 228 of 2007 in the Court of Civil Judge (Sr. Div.), Rampur against Smt. Neerja Gangwar as well as the complainant seeking cancellation of sale-deed dated 20.9.2007 executed in favour of the complainant by Smt. Neerja Gangwar (copy of plaint is Annexure 6). The complainant - opposite party No. 2 also filed Original Suit No. 116 of 2008 on 24.4.2008 in the Court of Civil Judge (Sr. Div.), Rampur against the applicants and also Smt. Neerja Gangwar praying for a relief of permanent injunction against the applicants restraining them from raising any construction or alienating the property without proper demarcation, (copy of plaint is Annexure 7).