- (1.) By this petition, filed under Section 482 of the Code of Criminal Procedure, the petitioner challenged the order dated 11.07.2012 passed by learned Additional Sessions Judge, (Court No.5),West Tripura, Agartala in Criminal Revision No.10(2)/2012 whereby and where under the learned Additional Sessions Judge upheld order dated 21.01.2012 passed by learned Additional Chief Judicial Magistrate, West Tripura, Agartala in Case No. PRC 971/2010.
(2.) Heard learned counsel, Mr. H.K.Bhowmik for the petitioner and learned P.P., Mr. D. Sarkar for the respondent.
(3.) Facts in short, necessary for disposal of this application may be noted thus:- 3.1 The present petitioner proposed to sell 2 gandas, 1 kara 11 dhurs of land (0.0456 acres) to one Chandan Dutta (informant of the criminal case) for a consideration of Rs. 12,00,000/-(twelve lakh). The land situated at Office Lane, Agartala, classified as homestead land, recorded in Khatian No.1816 Hal Khatian No.2678/56. The petitioner sold out the land saying it to be his jote land. After purchase when the purchaser Chandan Dutta applied for mutation, on field verification, the Revenue Authority found that in the eastern side there is a path way measuring 8' (eight feet) and the petitioner had shown the path way as 7'(seven feet) and thereby in the sale deed he had shown 1'(one feet) of pathway land as his jote land and in the northern side he had shown khas land measuring 0.0018 acres and it was shown in the sale deed as jote land. The Revenue authority found only 0.0369 acres as the jote land of the petitioner with saleable interest and the mutation was allowed to that extent of land. The purchaser Chandan Dutta therefore filed a complaint before the Chief Judicial Magistrate and the Chief Judicial Magistrate forwarded the same to the O.C., West Agartala P.S. under Section 156(3) of Cr.P.C. to register it as FIR and to investigate into the complaint. 3.2 Accordingly, West Agartala P.S. Case No. 368 of 2010 under Section 406,420 read with Section 34 of IPC was registered and an investigation was taken up. In course of investigation, I.O. examined the material witnesses, prepared hand sketch map of the disputed land, seized the material documents prepared by the Revenue authority at the time of mutation proceeding, i.e. the sketch map prepared by them showing the khas land and pathway land which was sold by the petitioner saying to be his jote land and also seized the copy of the sale deed etc. and thereafter filed charge sheet against the accused-petitioner for commission of offence punishable under Section 420 of IPC. 3.3 Charge sheet was received by the court of Chief Judicial Magistrate on 07.07.2011 and considering the charge sheet (police report) learned Chief Judicial Magistrate by order dated 02.08.2011, took cognizance of offence punishable under Section 420 of IPC and thereafter case was transferred to the court of learned Additional Chief Judicial Magistrate, West Tripura, Agartala, who, in the process issued summons upon the accused-petitioner for appearance. On receipt of the summons, the accused-petitioner appeared and submitted a petition praying for discharging him on the ground that the dispute is purely of a civil nature and that the criminal case is not maintainable and he is liable to be discharged. Learned Magistrate rejected the prayer by impugned order dated 21.01.2012 passed in PRC Case No.971 of 2010 holding that the petitioner sold out 2 gandas, 1 kara 11 dhurs of land saying to be his jote land and taken consideration money from the defacto complainant whereas he had only 1 ganda 2 karas of jote land and the rest of the land was khas land and pathway land and the petitioner thereby cheated the defacto complainant, the purchaser and therefore, the case should be tried on its own merit. 3.4 Challenging the order dated 21.01.2012, the petitioner preferred revisional application before the court of Sessions and learned Additional Sessions Judge by impugned order dated 11.07.2012, rejected the revisional application holding thus:- "Now, going into the evidence and materials collected by investigating officer in above said case it reveals that the prima facie materials on record is that the Defecto Complainant/informant paid entire amount of consideration money of the petitioner i.e. Rs.12,00,000/- for purchasing land area of 2 gandas, 1 kara and 11 dhurs but the proposed land of sale as demonstrated by the petitioner contained some portion of khas land and a portion of pathway of neighboring inmates, and possession of the same was handed over to him for which the informant was refused with the mutation of entire purchased land. Further allegation was that the petitioner induced him dishonestly showing that khas land and thus made him to deliver the entire amount of Rs.12 lakhs to him. The another factum i.e. the requisite mesne rea of the petitioner for cheating since inception is to be judged after recording of evidence and absence of the same cannot be readily inferred at this very blooming stage of trial. Though there are also some favourable factors in the record leaning in petitioner's side e.g. he executed the deed as per agreement and handed over possession and that Property Laws also cast a duty upon the purchaser for necessary verification of land and its' documents before purchase for his satisfaction, but it is not the right time to consider all these matters which can only be judged at the time of final decision.";