Order on Board

24 /08/2023

1. Heard Mr.Rahul Agrawal learned counsel for the applicants. Also heard Mr.Ashish Gupta, learned counsel appearing for respondent No.1 and Mr.Avinash Singh, learned Panel Lawyer appearing for respondent No.2/State.

2. The applicants have filed this criminal revision against the order dated 18.07.2014 (Annexure A-1) passed by the Second Additional Sessions Judge, Raigarh in Criminal Revision No.09/2012, whereby the learned Second Additional Sessions Judge has reversed the order dated 23.01.2012 (Annexure A-2) passed by the Chief Judicial Magistrate, Raigarh in unregistered complaint (Ashok Kumar Gupta and others v. Ramesh Kumar and others) by which the learned CJM after finding the prima facie case against respondent No.1 registered the offence under Sections 406, 467, 468 and 471 of the IPC against him.

3. Learned counsel appearing for the parties have pointed out that applicant No.1-Ashok Kumar Gupta has died.

4. Hence, criminal revision on behalf of applicant No.1-Ashok Kumar Gupta is dismissed as having become infructuous.

5. The undisputed facts necessary for disposal of this case are that a complaint was filed by the applicants against Ramesh Kumar Moda, Smt.Uma Devi, Rajesh Kumar and Manish Kumar Singhaniya stating inter-alia that the land bearing khasra Nos.24/2, 25, 26/1, 27/1Kha, 38/1, 28/260/2, 27/2, 38/6, 26/2, 39/40, 42, 51/1Kha and khasra No.28/269/3K situated at village Banjhinpali, Tahsil and District Raigarh is owned and possessed by them. The above- mentioned land was mortgaged by forefather of the applicants with Seth Kirodimal Charity Trust (hereinafter referred as “Trust”). As per clause 6 of mortgage deed dated 5.1.1958, mortgage was till 20.10.1966 and interest was agreed to be paid every three months. Further, there was a condition in the mortgage deed that even if the amount of loan will not be paid by 20.10.1966, then also the trust will charge only interest and property will never be claimed and possession will not be taken. Later on, the trust ensured that possession will be with the ancestral of the applicants, but just a legal formality, a sale deed will be executed and accordingly, on 20.06.1959 a sale deed was executed, but the possession remained with the applicants. Since ancestral of the applicants namely Seth Nirbhay Ram was founder of the trusty and brother of President, Seth Kirodimal, therefore, there was no reason to believe and just for security, the sale deed was executed. After death of Seth Kirodimal in the year 1965, working pattern of Seth Kirodimal was changed. Since the intention of trust was changed and they tried to grab the property, civil suit was filed, which was registered as Civil Suit No.6-A/72. In that civil suit, compromise was taken place and again it was agreed by the trust that the original amount of Rs.1,83,000/- interest upon will be paid by 1982 and remaining amount will be paid, when the trust will register the property in the name of the applicants forefather. Accordingly, one agreement was executed on 25.08.1983. In that agreement, it was agreed that the property will remain in possession of the applicants. Later on, the trust has started to give the rent receipt for the amount which was being paid against the interest and when it was objected by the applicants, they said that they have agreement to that effect. As such, they started cheating with the applicants. The trust in order to grab the property has treated the property as trust property in respective of their agreement dated 25.08.1981 and for initiating that property, the application for permission to sale was put up before the Registrar of Trust on 23.09.2010 and as such, they have committed the offences under Sections 420, 406, 467, 468 and 471 of the IPC. In that case, preliminary evidence of the witness was recorded.

6. After going through the records as well as after examining the evidence, the learned Chief Judicial Magistrate after finding the prima facie case against respo