RAKESH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Shishir Tandon, learned counsel for the applicant, Sri Vikas Ojha holding brief of Sri Sanjay Kumar Dwivedi for opposite party no.2 and the learned AGA for the State. By the present application, the applicant has sought for quashing of the summoning order dated 4th March, 2013, passed by Judicial Magistrate, Chhata, district Mathura in criminal complaint case no.27/IX of 2013, under Sections 420, 467 and 468 IPC, relating to police station Kosikala, district Mathura, whereby the applicant has been summoned under Sections 420, 467 and 468 IPC. The applicant has also prayed for quashing of further proceedings as against him in the aforesaid criminal complaint.

(2.) A perusal of the record reveals that the allegation in the complaint is that the complainant's father and uncle jointly purchased a property vide sale deed dated 12.11.1964. On their death one half share of complainant's father devolved on the complainant and his brother Chhajjan (a co -accused, but non applicant) and the remaining one half share of his uncle devolved on Shiv Ram and Phool Singh, his sons. The allegation is that complainant's brother, without authority, by a fictitious and bogus sale deed dated 14.12.2012 sold the entire property in favour of the applicant and in that execution every person was in conspiracy with each other including the witnesses Lekhraj and Natthi. In support of the complaint the statement of the complainant was recorded under section 200 Cr.P.C and that of the witnesses Shiv Ram (P.W.1) and Hare Kishan (P.W.2), under sections 202 Cr.P.C. By way of documentary evidence the complainant produced the sale deed executed by Chhajjan Singh in favour of the applicant as also the sale deed dated 12.11.1964 by which the complainant's father and uncle jointly purchased the property. The learned Magistrate found from the material on record that the accused Chhajjan Singh had no authority to sell the entire property, accordingly, it found a prima facie case to proceed against Chhajjan Singh (non applicant) and the applicant (purchaser) under sections 420, 467 and 468 IPC. The court below, however, did not proceed against the witnesses of the sale deed.

(3.) LEARNED counsel for the opposite party no.2 submitted that the applicant is not a bona fide purchaser for value and that a suit has been instituted by Shiv Ram, one of the co -sharer, for cancellation of the sale deed, which is pending as Suit No.132 of 2013 in the Court of Civil Judge (Sr. Div.) Mathura, whose plaint has been filed as Annexure 1 to the counter affidavit. It has been submitted that the applicant was aware that the sale deed was in excess of the authority of Chhajjan Singh (the vendor), which is clear from the fact that, subsequently, a corrigendum deed dated 07.01.2013 (Annexure No.2 to the counter affidavit) was executed for altering the boundaries of the property sold by Chhajjan Singh. It has thus been submitted that the Court below has rightly proceeded against the applicant.