(Querist) 31 July 2021
This query is : Resolved
My late father passed away intestate in 2020 leaving behind his widow ( my aged mom ) and 4 sons - 5 class 1 legal heirs MUM S1 S2 S3 - Me S4
He left behind both moveable and immovable properties
Moveable Properties In 2018, late father had created 3 FD's and had appointed 3 sons as nominees separately as detailed below:
That just after his death youngest son ( S4 ) committed fraud and cheating by fraudulently changing the nominee ( Changing to his his name ) held at fixed deposit FD 1 after his death using the late father's registered SIM card . That a section 91 request made to THE bank revealed the full changes in nomination made after the late father's death . the fraudulent change in nominee pertains to FD 1 only. Further more RBI in its report under the ombudsman scheme also highlighted the same
September 2020 My MUM filed a criminal case against the youngest son ( S4 ) where cognizance was taken under section 420/120 B and was granted anticipatory bail and ordered to deposit back all monies transferred to his account after the late father's death . He has complied with his ABP order and the case is under trial. S3 ( myself ) i am the witness in Criminal Case filed by by mother against S4
October 2020 S4 then files a frivolous partition suit and deliberately included all self acquired properties ( moveable and immoveable ) of the late father in addition to including all other defendants self acquired property as well - All this to give the Impression of an alleged property dispute when none existed . We have responded via our WS and the TPS is pending
Since my mother's only source of income was the interests money from the FD 's where's nomination was disputed , my mother continues to face extreme financial hardship as the banks were unable to settle the money to nominee as custodians of the legal heirs of the deceased
March 2021 MUM applied for a succession certificate currently pending as money is urgently needed for survival
July 2021 S4 now filed a criminal complaint at Magistrates under Section 420/120b/406 against S3 ( me) saying i have committed fraud by transferring FD 3 to my name. That i am the custodian till the succession matter is resolved. And that in the succession case i have already submitted my WS for a Joint certificate and 1/5th share of all debt securities.
That this criminal case is nothing but a counter blast case and a harassment at that it has only recently been filed at ACJM and is awaiting allocation to JMFC. Thereafter i understand a magistrate may or may not take cognizance. Now if they are stupid enough and take cognizance even though it is well settled in law that NOMINEE is a custodian and not owner. How can i prevent cognizance from being taken in a frivolous case. My question:
Can i approach the JMFC pre cognizance? If the Magistrates stupidly take cognizance u/S 406/420 without understanding the above point, can i appear in person without fearing the risk of custody or do i have to apply for Anticipatory bail ? Or should i write to ACJM now? Or should i put a response directly to JMFC who is allocated the case pre cognizance? Will he/she read response from accused before cognizance is taken ?
Dr J C Vashista
(Expert) 01 August 2021
Too long a story posted for consideration and obligation.
Consult and engage a local prudent lawyer for better appreciation of facts, professional advise and necessary proceeding.
(Expert) 02 August 2021
Please post concise facts.
(Expert) 02 August 2021
You stated that " if the Magistrate ......................... that means you are abusing the Hon'ble courts/Judges/Magistrates. It is not correct. The decree/order passed only on the merits of the case. so you can say that. So I am not interested to reply.
Shashikant V. Patil
(Expert) 03 August 2021
You are simply abusing Judicial officers . You have trust or not on judiciary . If you are clean , you will win , you better submit the case papers/WS of Succession certificate to this JMFC for evidence.