KANT TRIPATHI, J. - (1.) HEARD Mr. Akhtar Abbas, the learned counsel for the applicant and the learned AGA for the State and also perused the materials on record. None responded for the respondent no.2 despite revision of the list.
(2.) BEFORE considering the controversy involved in this case, it seems to be necessary to make a survey of the relevant facts of the case. It appears that the applicant Chela Prasad claims himself as the adopted son of Late Khushi Ram, who was his maternal uncle. It is also alleged that said Khushi Ram had also executed a registered will in favour of the applicant on 15.6.2004. The condition of Late Khushi Ram became critical on 22.1.2005 and as such he was being taken to Lucknow on 23.1.2005 for treatment but before moving for Lucknow he had gone to a bank situating within the premises of Behma Chauki for withdrawing certain money from his account. It is also alleged that Late Khushi Ram died within the premises of said Chauki on 23.1.2005. After the death of Late Khushi Ram, the respondent no.2, in order to grab his properties, forged the disputed will. It is alleged that Late Khushi Ram had not executed the disputed will, which is a product of the fraud played by the respondent no.2. The investigating officer, on conclusion of the investigation, submitted a final report on the ground that a case was pending in the court of Tahsildar Sidhauli, on the basis of the disputed will.
(3.) THE applicant filed a protest petition against the final report. The learned Additional Chief Judicial Magistrate recorded the statements of CW-1 Chela Prasad, the petitioner, CW-2 Bhawan, CW-3 Ram Narain and CW-4 Shivraj and also obtained the will. The learned Magistrate, after considering the materials collected during the investigation, arrived at the conclusion that the criminal proceeding was not maintainable so long as the will was not declared unlawful by the competent court. The learned Magistrate further held that the question whether or not the will in favour of respondent no.2 was genuine, can only be answered by the competent court and not by a criminal court. Accordingly the learned Magistrate accepted the final report and dropped the proceedings.;