Monoranjan Mallick, J. - (1.) In this writ petition, the petitioner who is an accused in the criminal case No. 1536 of 1984 pending before the Respondent No. 2 prays for a writ in the nature of Mandamus commanding the Respondents forthwith to forbear from proceeding of the above criminal proceeding and a writ in the nature of Prohibition prohibiting and restraining each one of them from proceeding in any manner whatsoever with the Criminal complaint No. 1536 of 1984.
(2.) By a supplementary Affidavit, dated 17th March 1988 the petitioner prays for quashing the complaint case No. 1536 of 1984. It is complained that the Respondent No. 3 filed a false complaint firstly on 27th December 1982 against the petitioner alleging commission of offence under Sections 420/406/403 of the LP.C. Because of the absence of the complainant, the petitioner was discharged on 24th August, 1984. Thereafter on 27th October, 1984 the Respondent No. 3 filed another complaint against the petitioner being complaint case No. 1536 of 1984 on identical allegations. On 27th October, 1984 the Sub-Divisional Judicial Magistrate, Alipore took cognizance of the said complaint and issued summons and thereafter the said case was transferred to the Court of the 3rd Judicial Magistrate, Alipore. Subsequently to the institution of the said Criminal Case, the Respondent No. 3 also instituted a Civil Suit against the petitioner in the Court of the Learned 4th Subordinate Judge, Alipore praying, inter alia, for a decree of specific performance of the alleged agreement to sell the premises No. 31, Dr. Rajendra Road, Calcutta. The petitioner has, therefore, moved this writ petition on 27th July, 1987 and obtained an interim Order. Thereafter by filing a supplementary Affidavit, dated 17th March, 1988 the petitioner has alleged that on or about 6th January 1988 a Memorandum of Agreement was entered into between the petitioner and one Ratilal Sakarchand Shah in which said Ratilal Sakarchand Shah admitted that the Respondent No. 3 was his Benamdar and through the said Benamdar, he entered into the said alleged agreement with the petitioner for the purchase of the said premises No. 31, Dr. Rajendra Road, Calcutta, that said Ratilal Sakarchand Shah also stated that by a Deed of Disclaimer, dated 8th May, 1986 the Respondent No. 3 admitted that he was a mere name lender in respect of the alleged agreement for sale, that said Ratilal Sakarchand Shah admitted that at his instance and instruction and on his behalf the Respondent No. 3 filed both the Civil Suit bearing No. T-60 of 1985 and the Criminal Case being No. C-1536 of 1984, and by the said Memorandum of Agreement the said Ratilal Sakarchand Shah agreed to appoint one Babulal Churilal Vora as Arbitrator to resolve the disputes between him and the petitioner and to withdraw both the Civil Suit and the Criminal Complaint, that the Respondent No. 3 also executed an agreement, dated 7th January 1988 whereby the Respondent No. 3 admitted and agreed that since all the disputes have been amicably settled, the said Respondent No. 3 shall withdraw the said Civil and Criminal Case and that the aforesaid agreement would. show that the Criminal Case instituted against the petitioner was entirely of civil nature, and that the Criminal Complaint Case being No. C-1536 of 1984 is vexatious and is an abuse of process of Court and should, therefore, be quashed.
(3.) The Respondent No. 3 has contested both the applications. It is contended that the allegations contained in both the writ petition as well as in the supplementary Affidavit are all false that the petition of complaint filed by the Respondent No. 3 contained sufficient ingredients for the learned Magistrate to take cognizance and to issue process against the present writ petitioner, that he never entered into an agreement to withdraw the said criminal proceeding or the Civil Suit, that the contention of the petitioner is that the complaint case raised a dispute in civil nature is not a correct contention, that the writ petitioner filed this writ petition at a. very later stage when after the Learned Magistrate had already examined Respondent No. 3 and his witnesses before charge and at about the stage when the Learned Magistrate was to decide whether he would frame the charge against the petitioner or not and that for quashing a original proceeding the petitioner ought not to have filed a writ petition and should have moved proper application under the Code of Criminal Procedure.;