JUDGMENT :

J.B. Pardiwala, J.

Rule. Mr.A.N.Shah, the learned APP waives service of rule for and on behalf of the respondent No.1 State of Gujarat. The respondent no.2, original complainant although served with the notice for final disposal, yet has not thought fit to appear before this Court either in person or through an advocate.

2. By this application under Section 482 of the Criminal Procedure Code, the petitioners - original accused nos.2, 3 and 4 calls in question the legality and validity of the order dated 15th February, 2011 passed by the learned Judicial Magistrate, First Class, Chikhli, passed below Exh.1 in Criminal Misc. Application No.2/2010 by which the learned Magistrate took cognizance upon the private complaint lodged by the respondent no.2 herein and ordered issue of process against the petitioners herein for the offence punishable under Sections 420, 423, 465, 467, 468, 471,120B r/w section 114 of the Indian Penal Code. It appears that while issuing process, the learned Magistrate simultaneously also ordered to issue non-bailable warrant against the petitioners herein. The impugned order passed by the learned Magistrate ultimately culminated in Criminal Case No.37/2011.

3. Brief facts giving rise to this application may be summarised as under:

3.1 The respondent no.2 herein lodged a private complaint in the Court of the JMFC, Chikhli for the offence punishable under sections 120B, 420, 423, 465, 467, 468, 471 r/w section 114 of IPC against the petitioners herein and one another person by name Suryakant Dhirubhai Desai (Original accused no.1) inter alia alleging that on 7/3/1995 the accused no.1 shown in the complaint (not before this Court) by misleading the complainant and his family members got an irrevocable power of attorney executed in his favour in respect to agricultural land bearing Account no.113, Block No.328 admeasuring 02023 guntha situated at the village Hond, Taluka Chikhli, District Navsari. It is the case of the complainant that although he himself and his family members did execute the irrevocable power of attorney in favour of accused no.1, yet being illiterate persons they were fraudulently lured by the accused no.1 to do so. It is also alleged that there was a fraudulent representation at the end of the accused No.1 and relying on such fraudulent representation the complainant and his family members had executed irrevocable power of attorney in favour of the original accused no.1. It is stated in the complaint that some of the executant's of the power of attorney are absolutely illiterate and are unable to even put their signatures. It is also alleged that although the disputed irrevocable power of attorney has been notarized, yet the complainant nor any of his family members had remained present before the Notary Public. According to the complainant, his brother, namely, Dhirubhai Balubhai Rathod passed away on 1/10/2008 and his mother, namely, Mangiben Balubhai had passed away on 3/5/2003. Since both these co-owners had passed away, the power, so far as dead persons were concerned, would automatically come to an end. The complainant has further alleged that the accused no.1, on the strength of such irrevocable power of attorney dated 7/3/1995 transferred the agricultural land in dispute in favour of the petitioner no.1 herein by way of a registered Sale Deed. According to the complainant, the petitioner nos.2 and 3 herein are the attesting witnesses who have put their signatures in the registered sale deed identifying the executants of the documents. The complainant has further stated that the sale consideration paid by the petitioner no.1 herein in favour of the original accused no.1 i.e. holder of the irrevocable power of attorney was not paid to him and the entire amount was pocketed fraudulently by the power of attorney holder. Thus, according to the respondent no.2 the petitioners herein and the original accused no.1 hatched a criminal conspiracy to defraud him and his family members a