- (1.) PRESENT criminal revision is directed against the order impugned dated 25.6.2007, passed by Sri T. Ahmad, learned Judicial Magistrate, Giridih in Complaint Case No.228 of 2007 by which the complaint filed on behalf of the petitioner was dismissed under Section 203 of the Code of Criminal Procedure in which offence was alleged against the opposite party Nos. 2 and 3 under Sections 420/406/506 read with Section120 -B of the Indian Penal Code.
(2.) COMPLAINANT 's case was that the opposite party Nos. 2 and 3 were in need of about 4 to 5 lakhs of rupees and for that they wanted assistance of the complainant -petitioner but the complainant refused to give such huge amount without any security and only thereafter the opposite party Nos. 2 and 3 proposed to sell their land on consideration of Rs.14 lakhs. Pursuant to such agreement to sell, the complainant advanced a sum of Rs.2 lakhs to the opposite party Nos. 2 and 3 on 23.3.2006 and further Rs.2 lakhs on the next day on 24.3.2006 total to the tune of Rs.4 lakhs against the receipt issued by the opposite party Nos. 2 and 3. It was alleged that the complainant -petitioner requested the opposite party Nos. 2 and 3 for absolute transfer of the land by executing registered sale -deed but they went on making excuses. Ultimately, he sent notice to the opposite party Nos. 2 and 3 on 30.8.2006 but instead thereof, the opposite party Nos. 2 and 3 by reply dated 26.9.2006 extended threat that they would file a criminal case against him. Finally, it was stated that the opposite party Nos. 2 and 3 were neither returning the money of the complainant nor executing registered sale -deed of the land in his favour. Advancing his argument, learned Sr. Counsel Mr. P.P.N. Roy submitted that the complainant - petitioner in course of inquiry under Section 202 of the Code of Criminal Procedure produced three witnesses, who have consistently supported the allegation against the opposite party Nos. 2 and 3 as made in the complaint petition, but the learned court -below by the order impugned dated 25.6.2007 dismissed the complaint under Section 203 of the Code of Criminal Procedure only on the ground that complainant had not filed any suit for specific performance of contract before the competent court of civil jurisdiction and that no offence prima facie was made out against the accused persons much less under Sections 420/406/506 read with Section120 -B of the Indian Penal Code.
(3.) MR . Roy assailed the order impugned on the ground that learned Judicial Magistrate failed to appreciate that the petitioner had admittedly not preferred any civil suit before the competent court for specific performance of contract under the Specific Relief Act as he had already preferred a complaint against the accused i.e. the opposite party Nos. 2 and 3 herein. Learned Sr. Counsel exhorted that the criminal case by filing a complaint is no bar for realization of the money which was obtained by defrauding the complainant and thereafter not transferring the land in favour of the complainant by executing registered sale -deed as per agreement. The accused were neither returning the amount what they had secured as advance nor were inclined to transfer the land against balance consideration by executing registered sale -deed in favour of the complainant - petitioner and a Bench of this Court in Binod Kumar Newar @ Binod Newar V/s. The State of Jharkhand & others, reported in 2007(3) JLJR 472 observed, "However, in cases where the facts and circumstances do suggest and make out a prima facie for certain offences punishable under the Indian Penal Code, mere fact that civil liability arises out of the dispute and the fact that the party aggrieved had taken recourse to the civil remedy, cannot be taken as a ground to refuse criminal prosecution." It was further held in the said judgment, "Civil suit being a suit for specific performance of contract is entirely on a different footing and merely because a party aggrieved has filed a civil suit, it would not preclude him or prevent him from seeking redressal for the wrong committed to him if the facts and circumstances of the case suggest the element of an offence." ;