Chattisgarh High Court
Vinod Kumar Kashyap vs Smt. Dhaneshwari Kashyap And Oth on 9 October, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
Neutral Citation
2023:CGHC:24697
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 544 of 2016
Vinod Kumar Kashyap S/o Late Shri Jagdish Prasad Kashyap Aged About 39
Years Through Shri Umesh Kashyap, Lodhi Para, Behind Radha Krishna
Temple, Sarkanda, P.S. - Sarkanda, District Bilaspur, Chhattisgarh, Civil And
Rev. District Bilaspur Chhattisgarh. , Chhattisgarh
---- Petitioner
Versus
1. Smt. Dhaneshwari Kashyap And Oth. D/o Rambharos Aged About 25 Years R/o
C/o Utrabai Kashyap, Present And Correct Address Village Dholmouha, Block
Kota, P. O. Mithunavagaon, District Bilaspur Chhattisgarh., Chhattisgarh
2. Kamal Kumar Kashyap S/o Late Shri J.P. Kashyap Aged About 40 Years R/o
Tikrapara Yadav Mohalla, Near Santosh Pan Shop, Bilaspur, P.S. City Kotwali,
Bilaspur Chhattisgarh. , District : Bilaspur, Chhattisgarh
3. Smt. Madhuri Kashyap W/o Rajesh Kashyap (Wrongly Mentioned As Late Shri
J.P. Kashyap) Aged About 30 Years D/o Late J.P. Kashyap, R/o Karaihapara,
Ratanpur, P.S. - Ratanpur, District Bilaspur Chhattisgarh. , District : Bilaspur,
Chhattisgarh
4. Ghanshyam Ratre Chairperson Nagar Panchayat, Ratanpur R/o Bhedimunda,
Ratanpur, P.S. - Ratanpur, District Bilaspur Chhattisgarh. , District : Bilaspur,
Chhattisgarh
5. Jitendra Kashyap @ Jeetu Councilor Parshad Ward No. 8, Bhedimunda,
Ratanpur, P.S. - Ratanpur, District Bilaspur Chhattisgarh. , District : Bilaspur,
Chhattisgarh
---- Respondents
(Cause-title taken from Case Information System) For Petitioner : Mr. A. K. Prasad and Mr. Rishi Mahobia, Advocates For Respondents : Mr. Parth Shrivastava, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Order on Board Neutral Citation 2023:CGHC:24697 2 09/10/2023 Heard Mr. A. K. Prasad, and Mr. Rishi Mahobia, learned counsel appearing for the petitioner. Also heard Mr. Parth Shrivastava, learned counsel appearing for the respondents.
2. The instant petition is being preferred by the petitioner challenging the legality & validity of the impugned order dated 15.03.2016 passed by 9 th Additional Sessions Judge, Bilaspur, arising out of the order dated 17.10.2014 passed by Judicial Magistrate First Class, Bilaspur in unregistered complaint case titled as Vinod Kumar Kashyap vs. Smt. Dhaneshwari and others by which the complaint filed by the petitioner has been dismissed by the Court below.
3. Facts of the case, in nutshell is that, the petitioner and the respondent No. 2 & 3 are son & daughter of late Jagdish Prasad Kashyap, who was a Head Constable in a Reserve Police Force and who has expired on 13.05.2012 after his retirement. Wife of late Jagdish Prasad namely - Smt. Fatkan Bai has expired prior to 10 years before the death of Jagdish Prasad. Late Jagdish Prasad was having two son & one daughter who are his legal heirs. It was alleged that after the death of Jagdish Prasad, when complainant/petitioner, who was also the son of Late Jagdish Prasad, contacted with the railway authorities for pension, compassionate appointment and for other retrial dues, it came to knowledge of the petitioner that on the basis of forged and concocted documents, the respondent no. 1 to 3 have initiated proceeding in order to get succession certificate, the complainant opposed the said proceeding and then only, the complainant came to know that the accused persons have prepared forged documents in order to commit forgery and thereafter, the said documents were attested by respondent No. 4, who is President Nagar Panchayat. Ratanpur and respondent No. 5, who is Councilor, has attested the photo on document No 2, in which in place of complainant some one else was identified and attested. The complainant had never signed upon the said document nor the photograph Neutral Citation 2023:CGHC:24697 3 of the applicant has been pasted and attested by the petitioner herein, nor he has given any consent. The photograph affixed in the succession application is not the photograph of the petitioner but the same has been attested by the respondent Nos 4 and 5 stating to be photograph of the petitioner by impersonating other persons. The accused persons have got the photograph of the petitioner, attested by respondent no. 4 and 5. The respondent 1 to 3 have further conspired and have prepared a forged affidavit. The document no. 4 is the false affidavit of accused no. 2. The document no.5 is also a copy of forged affidavit of late Jagdish Prasad in which it has been stated that Jagdish Prasad has nominated accused/respondent no.1. The signatures of late Jagdish Prasad was also forged and the same is not the signature of Jagdish Prasad Kashyap. 3.1 From the aforesaid documents, it is apparent that the accused no. 1 to 3 has hatched a conspiracy in order to get all the retrial dues of late Jagdish Prasad Kashyap. The accused no. 1 has further connivance with accused no. 2 and 3 in order to get service and pension. The accused no. 2 is railway employee, therefore he has taken advantage of his service and has prepared forged documents with the assistance of accused no. 1 and 3, therefore, offence under Sections 420, 471, 465, 468, 471 and section 120-B read with section 34 of IPC be registered and prosecuted against the accused persons.
4. The complainant examined himself as CW-1, Shri Vidhya Bhushan Kashyap as CW-2 and Shri Vinay Kashyap as CW-3 for the purpose of summoning the accused and also filed relevant documents in support of his contentions before the trial Court.
5. The Judicial Magistrate First Class, Bilaspur by its order dated 17.10.2014, after considering the statements of complainant and his witnesses, has dismissed the complaint filed by the complainant observing that regarding filing of application for succession certificate, no documents have been filed by the complainant and the case seems to be a case of dispute regarding succession, which is of civil nature.
Neutral Citation 2023:CGHC:24697 4
6. Against the said order of dismissal/non-registration of complaint, the applicant preferred a criminal revision under Section 397 of Cr.P.C. before the Court of Sessions which was heard by IXth Additional Sessions Judge, Bilaspur who has also dismissed the revision affirming the order passed by the leaned trial Magistrate finding no merit in it.
7. Learned counsel for the petitioner submits that the impugned order is contrary to the facts, law and circumstances of this case. The learned court below should have considered this fact at the time of registration of complaint and issuance of notice, the court is not required to examine the complaint meticulously but it has to see that whether a prima facie case is made out or not. He also submits that, the learned Court below has also not considered that at the stage of cognizance and summoning the accused persons, the trial Magistrate is required to apply his judicial mind only with a view to take cognizance of offence. At this stage, the Magistrate is not required to consider the defense version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complaint. He further submits that if the averments in the complaint prima facie make out a case, the Magistrate can always take cognizance of the same and it is not necessary that the complaint should verbatim reproduce all the ingredients of the offence nor is it necessary that the complaint should state in so many words that the intention of the accused was fraudulent. The learned Court below failed to consider that the respondents have filed application for getting succession certificate after the death of father of the petitioner in which, they have annexed photograph of another person showing it to be the photograph of the petitioner and have also made false signature and consent of the petitioner, the learned Court below further failed to consider that the respondents have produced false affidavit of Late Jagdish Prasad Kashyap, in which, they have put a forged signature which attracts criminal offence. The photograph of the petitioner which was certified by the respondent no.5 while impersonating another person in place of the petitioner is also an offence. The Neutral Citation 2023:CGHC:24697 5 nomination paper prepared by the respondents are also forged and fabricated. He lastly submits that the order passed by the learned Session Judge suffers from material illegality, warranting interference by this Hon'ble Court and if the same is allowed to stand the petitioner would suffer an irreparable loss.
8. Learned counsel for the respondents order passed by the learned revisional Court has not committed any jurisdictional error in dismissing the well reasoned order passed by the trial Magistrate dismissing the complaint filed by the complainant, which does not call for any interference. He submits that impugned order is reasoned order and just to snatch the legal right of succession from the actual legal heirs, the present complaint has been filed by the petitioner/ complaint, which is bad in eye of law.
9. I have heard learned counsel for the parties and perused the material available on record with utmost circumspection.
10. The petitioner - complainant filed a complaint before the learned Judicial Magistrate First Class, Bilaspur alleging that his father late Shri Jagdish Prasad Kashyap had remained posted as Head Constable in Railway Protection Force (RPF) and after his retirement he expired on 31.05.2012. To get pension compensatory appointment and for other service benefits of his father, when the complainant contacted to Railway authorities, he came to know that respondens/ accused persons in -collusion with a Railway employee are processing their case on the basis of forged documents and wrong information. Thereafter, after collecting all the relevant documents, complainant made a written complaint in Police Station Torwa but the police has not taken any action against the accused persons. Therefore, the petitioner filed complaint before the trial Magistrate to take cognizance of the offence against the respondents /accused. The trial Magistrate, vide its order dated 17.102014, after appreciating the oral and documentary evidence available on record, dismissed the complaint filed by the complainant holding that with regard to filing of application for succession certificate, no documents have been filed by the complainant and the case seems Neutral Citation 2023:CGHC:24697 6 to be a case of dispute regarding succession, which is of civil nature. Complainant preferred revision before the Court of Sessions against the order of trial Magistrate.
11. The revisional Court, by its impugned order dated 15.03.2016, has dismissed the revision filed by the complainant by affirming the order passed by the learned trial Magistrate observing that after death of late Shri Jagdish Prasad Kashyap both the parties claimed themselves as successors of late Shri Jagdish Prasad to get benefits from his department i.e. RPF. The Complainant nor his witnesses have made any averments in their statements that which document was forged and fabricated by the respondents and in what manner. The rivisional Court further held that it is a dispute of succession between the parties and summoning of persons as accused should not be ordered in a mechanical way and sometimes complaints are being filed just to settle personal score or to put pressure upon the other party. In view of the foregoing discussion, in the opinion of this Court, the finding recorded by the trial Magistrate, as affirmed by the Reivisional Court are finding of fact based on proper appreciation of evidence available on record, which is neither perverse nor contrary to the record and, as such, this Court also does not find any perversity or illegality in the order impugned warranting interference of this Court in the instant petition.
12. As a consequence and fallout of the aforesaid discussion, the instant Cr.M.P., being devoid of substance, is liable to be and is hereby dismissed.
Sd/---
(Ramesh Sinha) Chief Justice amita