SEWA SINGH AND SIX OTHERS Vs. STATE OF UTTARAKHAND AND ANOTHER
LAWS(UTN)-2012-6-105
HIGH COURT OF UTTARAKHAND
Decided on June 27,2012

Sewa Singh And Six Others Appellant
VERSUS
State of Uttarakhand and another Respondents

JUDGEMENT

V.K. Bist, J. - (1.) THIS petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), has been filed by the petitioners seeking quashing of the proceedings of criminal case No. 547 of 2008 'Ravinder Singh Saini vs. Sewa Singh and others' relating to offences punishable under Section 120B, 468, 420 I.P.C. and the summoning order dated 27.11.2008 passed by Judicial Magistrate, Kashipur, District Udham Singh Nagar in said case, pending before him. Brief facts, which emerge out from the record, arc that complainant/respondent No. 2, namely Ravindra Singh Saini is the power of attorney holder of his two real brothers, namely Malkeet Singh and Harjeet Singh. On 23.07.2008, the complainant filed a complaint case, bearing Criminal Case No. 547 of 2008 under Section 120B, 420, 467, 468 and 471 I.P.C. before the Judicial Magistrate, Kashipur against the petitioners with the assertion that he is filing the complaint case as power of attorney of Malkeet Singh and Harjeet Singh. It is alleged in the complaint that one Banta Singh S/o. Banga Singh (father of petitioner Nos. 1 & 2 and grandfather of petitioner Nos. 3, 4 & 5), Malkeet Singh and Harjeet Singh are co -sharer of Khata No. 63 and 96 situate at village Narkhera, Tehsil Bazpur. Banta Singh has died and after his death the petitioners Sewa Singh and Gurdeep Singh with the intension to grab the land of Malkeet Singh and Harjeet Singh, drafted two unregistered Wills of Banta Singh on 12.02.2000. Each of the forged Wills was drafted having variation of recital, as one paragraph has been added in one of the Wills. The petitioners Sewa Singh and Gurdeep Singh, in order to give undue benefit to their children i.e. petitioner Nos. 4, 5 and 6, filed mutation suit before Naib Tehsildar, Bazpur and got their names mutated for 2.993 hectare of land against existing land of 2.458 hectare. The petitioners in order to harm Malkeet Singh and Harjeet Singh exercised the Wills dated 12.02.2000 pretending these Wills as genuine. Petitioner Nos. 4 & 6 moved an application on 03.01.2007 before Naib Tehsildar, Bazpur seeking correction of entries in the revenue records, admitting that an excess land measuring 8 Bigha 10 Bishwa has been recorded in their names, while the petitioner Nos. 4 to 8 in furtherance of their common intention, got recorded their statement on the basis of forged Wills before the Naib Tehsildar, Bazpur and in order to grab the land of Malkeet Singh and Harjeet Singh prepared forged Wills and used these Wills. The petitioner No. 3 Harvinder pretending the forged will as genuine filed the same before Addl. District Judge, Kashipur and got substituted himself. Both the Wills are of 12.02.2000, witness are same and have been scribed by one Dinesh Chandra Sharma. It is alleged that on 18.06.2008 the complainant tried to lodge First Information Report at P.S. Bazpur, but his endeavours failed. Being constrained, the complainant filed a complaint case against the petitioners except one Mr. Avatar Singh S/o. Banta Singh. The complainant got himself examined under Section 200 Cr.P.C. and in support of his complaint, he examined C.W. 1 Malkeet Singh under Section 202 Cr.P.C. The complainant also filed documentary evidence. It appears that the Trial Court, having gone through the evidence on record, after satisfying with the material available on record, vide its order dated 27.11.2008, prima facie, took cognizance in the matter and summoned the petitioners for the offences punishable under Section 120B, 468 and 420 I.P.C. Being aggrieved by the order of Trial Court, the petitioners have filed the present petition.
(2.) I have heard Mr. R.P. Nautiyal and Manav Sharma, Advocates for the petitioners, Mrs. Mamta Bisht, A.G.A. for the State, Mr. Lalit Sharma, Advocate for respondent No. 2 and perused the entire material available on record. Learned counsel for the petitioners submitted that impugned summoning order has been passed in mechanical manner. He contended that the petitioner Nos. 1 & 2 had no reason to fabricate a forged Will, of their father, namely, Banta Singh, who died on 28.03.2000 and the Will was drafted on 12.02.2000 and as per the Will, the share of Banta Singh was given to Harvinder Singh S/o. Sewa Singh and petitioner Nos. 1 & 2 were not benefited personally or either ways. Learned counsel for the petitioners emphatically contended that Malkeet Singh and Banta Singh were jointly contesting Civil Case No. 28 of 1985 'Banta Singh, Malkeet Singh vs. Karam Chand and others', for specific performance in the Court of Addl. Civil Judge, Nainital, as plaintiffs, with a common motive regarding an agreement to sale, jointly made in their favour and this case was decreed on 10.03.1995 and thereafter, they jointly filed an execution case before the Civil Judge (Sr. Div.), Udham Singh Nagar. He contended that during the pendency of execution case, Banta Singh died and as per his Will, Harvinder Singh/petitioner No. 3 moved substitution application before the Court of Civil Judge (Sr. Div.), Rudrapur and on the basis of the Will in dispute, the substitution application was allowed. He contended that till 21.04.2008 when the substituted party 1/1 Harvinder Singh filed an amendment application on 03.03.2008, neither Malkeet Singh nor any other person had any objection on the substitution application. He contended that after a lapse of more than eight years, Malkeet Singh on his own, filed objection to the amendment application on 21.04.2008, challenging the impugned Will of Late Banta Singh. Learned counsel for the petitioners further contended that after a lapse of more than eight years i.e. on 03.05.2008, Malkeet Singh filed objection in the Mutation Case No. 30/157 of 1999 -2000, on the basis that he came to know about the Will on 03.05.2008. It is further contended that right from 1985 to 03.05.2008 i.e. during the course of whole litigation, Malkeet Singh did not require any power of attorney, however, on 06.05.2008, instantly after three days of filing his objection dated 21.04.2008 and 03.05.2008, he made the complainant his power of attorney. He contended that application dated 03.03.2008 and objection dated 21.04.2008 are still pending in the Court of Addl. District Judge, Kashipur. Further the objections of Malkeet Singh dated 03.05.2008 filed against the mutation of Harvinder Singh in place of Late Banta Singh in Mutation Case No. 30/157 of 1999 -2000 are still pending before Tehsildar, Bazpur, District Udham Singh Nagar.
(3.) LEARNED counsel for the petitioners submitted that as soon as the applicants came to know that some area has been wrongly entered in their names, they moved application dated 03.01.2007 praying to decrease the area, which was wrongly entered in their names. He contended that late Banta Singh was the co -sharer of land in dispute, hence only the land which was entered in his share, was entered in the name of petitioner Nos. 3, 4 & 5, therefore the power of attorney is not affected. He contended that a registered sale deed has been executed in the name of Harvinder Singh/petitioner No. 3 (now deceased), hence the Will executed in favour of Harvinder Singh stands upheld by the Court of Law and there remains no reason to doubt its genuineness and correctness. He also contended that the respondent No. 2 murdered the petitioner No. 3, namely, Harvinder Singh S/o. Sewa Singh, with the help of his brother Malkeet Singh, of whom he holds the power of attorney.;


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