R.A.SINGH, J. - (1.) I have heard Shri Anoop Trivedi, learned counsel for the revisionist, Shri Devendra Dahma learned counsel appearing for respondent no.2 and learned A.G.A. for respondent no. 1 on this revision at length and perused the record. This revision was reserved for judgment. Now I proceed to decide this revision through this judgment. This revision has been filed against the order dated 18.3.2008 passed by Chief Judicial Magistrate Aligarh in Criminal case No. 2081 of 2008, ( State Vs. ;Mohd. Shamshad and another) where under the cognizance was taken and the revisionists were summoned to face trial under section 420,471,506 I.P.C.
(2.) IT transpires from the record that the respondent no.2 Radhey Lal Sharma lodged an F.I.R. against Mohd. Shamshad and Mohd. Ashfaq on 10.1.2008 at 5.30 p.m. at P.S. Banna Devi Distict Aligarh with this allegation that on 24.3.2003 Mohd. Shamshad executed an agreement to sell in favour of the informant Radhey Lal Sharma and another in respect of his land of Khasara No. 673 measuring 3 biswa, Khasara no. 674 area 8 biswa, Khasara no. 675 area two biswa, 676 area 6 biswa and khasra No. 691 measuring 18 biswa situated at Qsba Koil near Gular Road, District Aligarh after receiving Rs. 20,000/- as advance money. The complainant, Radhey Lal Sharma asked Mohd. Shamshad several times to execute the sale deed after receiving the rest of consideration but he made pretext one or another. The complainant came to know about dishonesty of the accused Mohd. Shamshad at the time when a dispute arose between Km. Sarika Varshney @ Bhawna and Mohd. Ashfaq, brother-in-law of Mohd. Shamshad in respect of the same land, to this effect that accused Mohd. Shamshad and Mohd. Ashfaq executed a sale deed in favour of Sarika @ Bhawna on 6.9.2005 by concealing the agreement executed by them in favour of informant and thereafter Mohd. Shamshad further executed a sale deed on 28.3.2006 in favour of Ashfaq. Thus accused persons committed cheating and forgery by executing the sale deed in respect of same land which was already agreed to be sold to the informant. The record would further show that a case under section 420,471,506 I.P.C. was registered against the accused Mohd Shamshad and Mohd. Asfaq and investigated by the police and on completion of investigation, the police submitted the charge sheet against both accused persons. Learned chief Judicial Magistrate took cognizance and summoned the accused persons to face the trial under section 420,471,506 I.P.C. vide his order dated 18.3.2008, aggrieved by which the revisionist filed this revision on the ground that the court below passed the impugned order in most cryptic, arbitrary and unreasonable manner while the matter was of civil nature and the same had arisen out of non execution of sale deed in pursuance of agreement to sell, but the respondent no.2 dragged this dispute of civil nature into criminal litigation in order to pressurise the revisionist to execute the sale deed in respect of disputed land. The revisionist Mohd. Shamshad also filed O.S. NO. 257 of 2008 against Mohd. Naushad, Deependra pal Singh and Radhey Lal Sharma for declaration and permanent injunction in respect of the same land in the court of civil judge ( Sr. division) Aligarh which could not be decided so far and the notices were issued to all the defendants and thus informant respondent no.2, Radhey Lal Sharma lodged an F.I.R. which amounted to gross abuse of process of law and the learned magistrate committed illegality in passing the order in question under revision.
(3.) THE learned counsel for the revisionist contended that in above O.S. NO. 257 of 2008, the revisionist Mohd. Shamshad categorically admitted that he executed an agreement to sell in respect of above property in favour of the defendant for consideration of Rs. 50,000/- and also received Rs. 20,000/- as earnest money and it was agreed that the sale deed of the property would be executed within one year in favour of the defendants from the date of agreement after receiving payment of balance consideration. The revisionist/plaintiff several times requested the defendants to get the sale deed executed in their favour and also served notices upon them, but none of them turned up on the date fixed in the office of Sub-Registrar and thus the amount of earnest money stood forfeited in favour of the revisionist. The learned counsel for the revisionist further contended that no cheating or forgery was committed by the revisionist in respect of land in dispute and the F.I.R. was lodged with malafide intention. A counter affidavit of Shri Radhey Lal Sharma. Respondent no.2 was filed to this effect that the present revisionist also filed criminal Misc. application 9336 of 2008, Mohd. Shamshad and another Vs. State of U.P. and another with a prayer to quash the charge sheet in the said case and also to quash the order dated 18.3.2008 passed by the Chief Judicial Magistrate and even then the revisionist filed this revision in respect of the same prayer made in above criminal Misc. application which was finally disposed of on 24.4.2008.;