HEMA PATHAK Vs. STATE OF U P

JUDGEMENT

(1.) VINOD Prasad, J. This is an unfortunate case which once again echoes the dictum that nothing counts more in life than money not even uterine relationship of siblings. Out of the two sisters and a brother one sister Smt. Hema Pathak and respondent No. 2 Mukul Pathak are fighting for the fortune-jewellary and ornaments etc. , left by their deceased mother tooth and nail. An endeavour by this Court for a long period of many months to get the matter settled out side the Court amicably so that the relationship of brother and sister is cemented happily ever henceforth in this ephemeral life has yielded no result as none of the two sides are ready to budge and they want to fight it with all their might and main. Left with no other option this criminal miscellaneous application is being decided on its merits.

(2.) RESPONDENT No. 2 Mukul Pathak and applicant No. 1 Hema Pathak are issues of late Sri Rajendra Pathak and Smt. Sudha Rani Pathak. Rajendra Pathak who was a Government servant and Deputy Director in Information and Public Relation Department, Government of U. P. breathed his last on 20-9- 1989 survived by his wife Smt. Sudha Rani Pathak, applicant No. 1 Smt. Hema Pathak alongwith one more sister and the respondent No. 2 Mukul Pathak. Fortunately, Sudha Rani Pathak also breathed her last on 19-5-2001 as had she been alive her agony would have been worst than death. RESPONDENT No. 2 Mukul Pathak lodged a complaint before A. C. J. M. Court No. 46, Agra as Complaint Case No. 1681 of 2005, Mukul Pathak v. Hema Pathak and Ors. , under Sections 420, 467, 468, 471, 404 I. P. C. , P. S. Rakabganj, District Agra with epitomized allegations that the two applicants accused Smt. Hema Pathak and Girja Shanker Sharma are husband and wife and were married on 5th June 1993. The complainant, Mukul Pathak is the only son of his parents and his father had died on 20-9-1989. The mother of the complainant as well as of accused No. 1, Sudha Rani Pathak also left for her heavenly abode on 19-5- 2001 due to illness. The complainant and his wife had to look after his deceased mother while she was ill. Late Smt. Sudha Rani Pathak had many gold ornaments, which were kept in her almiraha. Accused Smt. Hema Pathak use to visit her ailing mother and in between 4-5-2001 to 19-5-2001, when Smt. Sudha Rani Pathak was hospitalized in S. R. Hospital, Agra and the complainant was looking after her ailing mother, the said accused Smt. Hema Pathak took away all the ornaments and bank paper belonging to Sudha Rani Pathak from her almiraha, which fact came to the knowledge of the complainant after her death. On demanding back the said ornaments etc. by the complainant, the two accused Smt. Hema Pathak and her husband Girja Shanker Sharma turned down his request. Late mother Smt. Sudha Rani Pathak, had also a savings bank account/pension account in State Bank main branch, C. P. Tola, Agra and had a deposit of Rs. 50000/- in the said account. The parents of the complainant had also a locker; F. D. Rs. , share bonds, Vikas Patra and ornaments, which were kept in the said locker. The details of the ornaments are mentioned in paragraph 7 and 12 of the complainant. After the death of the mother when the complainant went to inquire about the account and the locker he was informed that the applicants accused persons had taken away all the money and the ornaments. The bank people refused to divulge any information to the complainant regarding the fact as to how and why the money and the ornaments were handed over to the two accused when the complainant was the only legal heir of the deceased. Being sure that bank people connived with the accused persons and by making false signature allowed them to take away all the ornaments, cash and other valuable assets from the bank that the complainant filed an application under Section 156 (3) Cr. P. C. against the applicants but he failed to obtain any order from the Court. He also failed to get any relief from the revisional Court also in Criminal Revision No. 331 of 2003 which was dismissed on 20-5-2005. He gave applications to the Senior Superintendent of Police, Agra, which also yielded no results. Consequently the complainant laid a complaint on 31-8-2005 for offences under Sections 420, 467, 468, 471, 404 I. P. C. (Annexure No. 1 to the affidavit filed in support of this application) in the Court of A. C. J. M. Court No. 46, Agra against the applicants. The statement of the complainant under Section 200 Cr. P. C. and of his witness P. W. 1 Vishnu Prasad Agrawal, Assistant Manger State Bank of India, C. P. Tola, Branch Agra were recorded (Annexure No. 2 to the affidavit ). In statement under Section 200 Cr. P. C. the complainant has reiterated his complaint allegations and Vishnu Prasad Agrawal P. W. 1 prove the ledger in respect of pension account of the deceased mother and testified that the locker belonging to the late mother was opened by the accused. He also testified the withdrawal of money and stated that no succession certificate etc. was produced before him. He also testified that various cheques were got transferred by the accused Hema Pathak into her account. Finding prima facie case the trial Court summoned Smt. Hema Pathak only for offences under Sections 420, 468, 471 I. P. C. on 15-2-2006. A certified copy of the summoning order is Annexure No. 7 to the affidavit. Aggrieved by the aforesaid summoning order, the present criminal miscellaneous application has been filed by the accused in this Court with the prayer that the proceedings of aforesaid complaint case be quashed under Section 482 Cr. P. C. by this Court invoking its inherent power.

(3.) I have heard Sri Raghubir Singh as well as Sri J. S. Adichya, learned Counsel for the applicant and Sri D. N. Wali, learned Counsel for the complainant respondent No. 2 and the learned A. G. A. at a great length and have gone through the record of the present criminal miscellaneous application.