D.G.R.PATNAIK, J. - (1.) THE petitioner in this application has prayed for quashing the order dated 25.2.2004 passed by the Sessions Judge, Deoghar, in Criminal Revision No. 53 of 2003 whereby the revision application filed by the petitioner against the order dated 1.02.2003 passed by the learned Chief Judicial Magistrate, Deoghar in PCR No. 400 of 2002 was dismissed.
(2.) THE case against the opposite parties No. 2 and 3 was registered on the basis of a complaint filed by the present petitioner in the Court of the CJM, Deoghar. Brief facts of the case, as per the allegations in the complaint is that the accused persons namely opposite parties No. 2 and 3 had represented themselves to be owners of certain immovable properties situated at B.L.Chakraborty Road, Castairs Town, Holding No. 536 and had expressed their intention to sell away the same. The complainant agreed to purchase the property for a consideration of Rs. 10,00,000.00 (rupees ten lakhs). An agreement for sale was drawn up and a sum of rupees one lakh was paid by the complainant to the accused persons as advance towards the settled consideration amount. It is alleged that later, the accused No. 1 had proceeded to execute a power of attorney for sale of the same property in the name of a third party namely Anwar Khan. On the complaint by the complainant, the accused persons had demanded payment of the entire consideration amount as a condition precedent for execution of the sale deed in respect of the property in favour of the complainant and the complainant thereupon paid Rs. 6.5 lakhs out of the balance consideration amount in cash and Rs. 2.5 lakhs by way of five demand drafts, each valued at Rs. 50,000.00 (rupees fifty thousand), obtained from the State Bank of India on 20.9.2002. The payment was duly acknowledged by the accused persons by a written receipt. The power of attorney executed in favour of the third person namely Anwar Khan was subsequently cancelled by the accused persons. However, despite receipt of the entire consideration amount, the accused persons failed to execute the sale deed and had even denied to have entered into any agreement with the complainant for sale of the property in question and even denied to have received any amount from him. On the other hand, the accused persons as per the complainant's information, were contemplating to sell away the property to some other person. On the basis of these allegations, the complainant has claimed that the accused persons have cheated him by dishonestly inducing him to part away with his money and have caused wrongful loss to him and have made wrongful gain for themselves. In course of enquiry under Sec. 202 Cr.P.C. statements of the complainant and his witnesses were recorded and on considering the averments made in the complaint petition and the statements of the complainant and his witnesses, the learned Magistrate was of the view that the dispute between the parties relates to a breach of contract and as such, the dispute is essentially a civil dispute and no criminal liability can be fastened upon the accused persons. The learned Magistrate has also observed that for the same transaction, the complainant had filed a civil suit pending before the learned Subordinate Judge in which the accused persons in their written statement had denied and disputed the claim of the complainant and have also denied having entered into any agreement with the complainant or to have received money from him. Learned Magistrate had observed that since the dispute was already referred by the complainant to the civil court, therefore, no criminal prosecution can be initiated against the accused persons. With such observation, the learned Magistrate by his order dated 01.2.2003, dismissed the complaint petition of the complainant. Against the order of the learned Magistrate, the complainant preferred Civil revision No. 53 of 2003 before the learned Sessions Judge, who on consideration of the facts and circumstances of the case, vide his order dated 25.2.2004 accepted the view of the learned Magistrate that the dispute is essentially a civil dispute and does not invite any criminal liability against the accused persons. Reference to certain judgments of the High Court were made by the complainant which though considered, but was distinguished on the ground that the facts of the present case are totally distinguishable from the facts of the judgments citied. Heard the learned Counsel for the petitioner and the State
(3.) MR . Rajiv Ranjan, learned Counsel for the petitioner submits that the impugned order has been passed without appreciating the facts of the case in proper perspective and on the basis of misconceived notion that there being an element of civil dispute in the controversy between the parties no criminal liability can be attracted for the breach of alleged contract. Learned Counsel explains that the facts of the complainant's case clearly discloses that the accused persons by representing themselves as owners of the property and by offering the property for sale to the complainant had obtained the consideration amount from him as advance, but had subsequently wanted to sell away the property to a third person. The fact that after having taken the entire amount, the accused persons have now totally denied to have entered into any such agreement for sale or to have received any money from the complainant is a definite indication that the accused persons had deceived the complainant and that their dishonest intention existed even from the very inception when they had received the money from the complainant. Learned Counsel emphasizes that since a civil remedy is available to the complainant, he had taken recourse to the same, but by taking recourse to the civil remedy, he had never forfeited his right of redressal for the consequences suffered by him due to the deceptive practices of the accused person. Learned Counsel explains further that the learned Magistrate had also exceeded his jurisdiction by sifting the evidence as if he was conducting trial of the case instead of confining his attention to assess as to whether on the basis of the allegations in the complaint a prima facie case is made out for any offence.;