DINBANDHU Vs. STATE OF BIHAR AND ANR.

JUDGEMENT

(1.) Petitioner has preferred instant petition for quashing of order dated 6.1.2010 passed by Sub-Divisional Judicial Magistrate, Lakhisarai in complaint case no. 652C/2009 whereby and whereunder he has been summoned to face trial for an offence punishable under Sections 417, 420, 465 of the IPC. O.P. No. 2/complainant filed complaint petition showing date of occurrence from 16.5.2003 to 9.9.2009 showing place of occurrence at Village-Mahsoura as well as Civil Court, Lakhisarai asserting the fact that both complainant and accused are full brothers. Ancestral property was partitioned and on 16.5.2003 "Shartnama" was prepared with respect thereto in presence of well wishers. However, accused Dinbandhu made interpolation therein time to time for his' undue favour. On 9.9.2009 accused Dinbandhu had also instituted a false criminal case against the complainant bearing Lakhisharai P.S. Case No. 433/2009 on the basis of the aforesaid memorandum of partition dated 16.5.2003. On 23.12.2006, Dinbandhu had filed Partition Suit No. 24 of 2004 wherein he had annexed copy of memorandum of partition which happens to be contrary to the memorandum of partition annexed with the FIR of Lakhisarai P.S. Case No. 433/2009. Accused had knowingly and intentionally prepared forged and fabricated memorandum of partition only to defeat interest of petitioner. Complainant was apprehended in connection with Lakhisarai P.S. Case No. 433/2009 and after being released, has filed instant case. Enquiry was conducted thereupon in accordance with Section 202 Cr.P.C. and subsequently thereof petitioner/accused has been summoned to face trial, hence a cause has arisen for filing instant petition.

(2.) Contention on behalf of the petitioner is that the instant case is nothing but has been maliciously filed to harass and coerce the petitioner to desist from proceeding with Lakhisarai P.S. Case No. 433/2009. Further submitted that from the evidence whatever been collected during course of enquiry under Section 202 of the Cr.P.C. it is evident that no allegation is substantiated. Also submitted that O.P. No. 2 had annexed two memorandum of partition Annexure-C series of counter affidavit from which it transpires that recitals are same and similar save and except having signature of father of both the parties namely, Arjun Prasad Sharma over one while is absent over other which the complainant on court question had himself explained under paragraph-1 that signature of father was obtained later on. So non-presence of signature of father at first count over the document had itself been explained by the complainant himself.

(3.) Apart from this, it has also been submitted that none of the sections whereunder petitioner has been summoned is prima facie supported with the materials available on the record. Not only this, it has further been submitted that partition suit is also pending amongst the parties whereunder genuineness of memorandum of partition dated 16.5.2003 is also subject to adjudication.