- (1.) HEARD Shri R.P. Mishra, learned counsel for the revisionist and Shri Sharad Dixit, learned AGA for the State respondent. No one has appeared from the side of respondent nos.2 to 7 despite service of notice. I have also gone through the order and statement of witnesses.
(2.) AS per factual matrix of the case, the revisionist had moved an application under Section 156 (3) Cr.P.C. on 25.9.2003 before the Judicial Magistrate, Utraula, which was allowed and orders were passed for registration of the case. A criminal revision was filed before the Sessions Judge, which was allowed by the Sessions Judge. Feeling aggrieved, a revision was preferred before the trial court and this court was pleased to allow the revision and after that a case under Section 419, 420, 467, 468, 471 IPC was registered at Police Station Kotwali, Utraula. After investigation, a final report was submitted by the Investigating Officer. After protest, case proceeded as a complaint case. After recording of statement of revisionist under Section 200 Cr.P.C. and one witness Bhabhuti Prasad under Section 202 Cr.P.C., court below dismissed the complaint under Section 203 Cr.P.C. Feeling aggrieved, this criminal revision.
(3.) IT was submitted that respondents are the stepbrothers of the revisionist. It is further submitted that while the revisionist was minor, his the grand father had purchased the property in question from one Sarver Hussain. It is also submitted that the said property, having area 1.31 acres, was purchased in his name on 22.2.1954 by selling the ornaments of his mother, who had died in his childhood when he was about only 8 years. It was submitted that the property in question was recorded in the name of revisionist in the revenue record and in the consolidation proceeding, but in the year 1984, the respondent fraudulently got their names incorporated in the revenue records as ex -parte on an application under Section 229 (B), and after incorporation of the names of Shamsul Hasan and other, the said Shamsul Hasan has moved an application that he should be appointed as guardian in respect of Momin Hussain, Iktedar Hussain and Jabwar Hussain. It was submitted that after considering the entire facts and circumstances of the cases, the application moved by the Shamsul Hasan was rejected by the S.D.O., Uttraula on 17.12.1981, but even after the rejection of the application of the guardian of Iktedar Hussain, Momin Hussain and Jawar Hussain, the said Shamsul Hasan had transferred the said property in the name of Abdul Hameed, son of Beechu, resident of Rafi Nagar, Uttraula on 6.7.1983 without any authority of law. It is further submitted that names of respondents Shamsul Hasan, Momin Hasan, Iktedar Hasan and Jabwar Hussain along with revisionist were fraudulently recorded as co -shares on 30.3.1984 and 30.5.1984, and property was transferred on 6.7.1983 by the respondent Shamsul Hasan. It was submitted that at the time of transferring the property by Shmsul Hasan, the said Iktedar Hussain, Momin Hussain and Jabwar Hussain were minor, and aged about 6 to 10 years of the age. It is further submitted that against the order, by which the respondents were recorded as co -shares, the revisionist had moved an application for setting aside the ex -parte order upon which the S.D.M., Tulsipur has recalled the said order on 5.1.2000 and on the basis of the order passed by the S.D.M. Tulsipur, the property in question was again recorded in the name of the revisionist in the relevant khatauni. It was submitted that after cancellation of name of Abdul Hameed in the Revenue Record, the said Abdul Hameed has again transferred the said property in the name of Shesh Ram on the basis of the old record concealing the facts that his name has been stricken off from the revenue records and when the property in question was transferred by the said Abdul Hameed in the name of Shesh Ram, the revisionist has filed an objection that his name should not be incorporated on the revenue record. It is also submitted that the revisionist has also filed a suit for cancellation of the sale deed,, excuted in the favour of Abdul Hameed by said Saifful Hasan, and the sale deed executed by Abdul Hameed in favour of Shesh Ram, which is still pending in the court. It was further submitted that all these mis -deeds were committed by the respondents, as the revisionist was posted at Obra in Hydel Department and was almost out of district since 1979 to 1989 in relation to his service. It was submitted that the balance of convenience lies in favour of the revisionist, as he has been cheated by his step -brothers, and the property in question was transferred by respodent no.2 in the favour of Abdul Hameed, and later on, Abdul Hameed has transferred the said property in the name of Shesh Ram. It was also submitted that respondent No.7, Shesh Ram has tried to commit fraud upon the court too, and by concealing earlier order passed by the Tahsildar has tried to incorporate his name in the Khatauni. It is also submitted that the order passed by the Magistrate is illegal, arbitrary and at the stage of issue of process, the correctness or the probabilities or improbabilities of evidence on disputed ground cannot be looked into and it was incumbent upon the Registrar to see that prima facie case is made out or not. It is further submitted that even if the evidence in the case is taken as it is, then the order passed by the Magistrate would be bad in law on the basis of law laid down by the Apex Court in the cases of Nirmaljit Singh Hoon Vs. State of West Bengal and others, 1972 AIR(SC) 2639 and Keval Krishna v. Suraj Bhan, 1981 SCC(Cri) 438. It was also submitted that the trial court has wrongly taken the plea that the matter is subjudice in the case in which application for cancellation of sale deed has been filed by the revisionist while this Court as well as the Apex Court has categorically given the finding in number of decisions that if fraud has been committed out side the Court, the provisions of Section 195 Cr.P.C. will not be applicable. It was submitted that the impugned order dated 7.6.2005 has completely over looked the law laid down by this Court and Apex Court as regards Section 195 Cr.P.C. He placed reliance upon a Full Bench judgment of this Court in the case of Ram Khelawan and others v. State of U.P.,1998 36 AllCriC 571 (HC - FB) and Sachida Nand Singh and another v. State of Bihar and another,1998 AllCriC 660 and submitted that impugned order dated 20.1.2005 passed by the learned Judicial Magistrate, Gonda is unsustainable in the eye of law. It was submitted that the plea of forgery will not be considered by the civil court and as such the order passed by the Magistrate is per se bad and illegal. It was also submitted that the Magistrate has also not considered the fact that forgery in question has not been committed inside the Court and the same has been committed out side the court, as such provision of Section 195 Cr.P.C. will not be applicable in this case. It was submitted that forged document is of the year 1983. Learned AGA submitted arguments in support of lower court's order.;