Decided on September 27,1973

Narasimha Mahapatra Respondents


G.K.Misra, J. - (1.) THE case of the complainant is that accused Narasimha Mahapatra agreed to sell his Bagayat in mouza Durgaprasad to the complainant, for a consideration of Rs. 500/ -. The complainant, the accused and the witnesses came to Khurda on 13 -11 -1970 where the document was to be executed and registered. The accused (opp. party) executed a deed of sale and took Rs. 500/ - in presence of witnesses. After receiving the consideration the accused left the place and two days after sold ,the same land in favour of Bula Naik of Nuapali. Three witnesses have been examined in the case. At the time of framing charge the learned Magistrate held that as the complainant had already filed a civil suit in the Munsif 's Court, no prima facie case has been made out. He accordingly discharged the accused under Section 253(1), Code of Criminal Procedure. It is against this order that the Criminal Revision has been filed.
(2.) THE view of the learned Magistrate is clearly wrong. On the mere filing of a civil suit the complaint cannot be thrown out. The learned Magistrate should have discussed the evidence of the three witnesses examined so far. He fell into error in discharging the accused merely on the ground that a civil suit on the identical cause of action had been filed. Section 415, Indian Penal Code defines cheating: Section 415. Whoever , by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to "cheat". In this case the first part of the section is applicable. The accused deceived the complainant by saying that he would sell the Bagayat by executing a deed of sale. In fact, he executed a deed of sale and asked for the consideration money. By so doing he dishonestly induced the complainant to deliver the consideration of Rs. 500/. After receipt of this sum the accused did not register the sale deed, slipped away from the Sub -Registrar 's Office and executed a sale deed in respect of the same Bagayat in favour of another person two days after.
(3.) THREE witnesses have been examined before charge in support of the prosecution case. On the evidence as adduced, there is a prima facie case under Section 420, Indian Penal Code. The learned Magistrate would proceed to frame charge and then dispose of the case in accordance with law.;

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