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2013 DIGILAW 2702 (MAD)

Rajashadeviar v. P. Balasubramaniam

2013-07-29

C.S.KARNAN

body2013
Judgment :- The short facts of the case are as follows:- 1. The respondent herein / complainant has filed a private complaint in C.C.No.72 of 2001, on the file of the Judicial Magistrate-II, Tirupur, against the four accused stating that the first accused disclosed that she is having four acres cultivable land with irrigation facilities and she is willing to sell the same, believing the same, the complainant agreed to purchase the said property for a total sale consideration of a sum of Rs.2,00,000/-. On 25.05.1998, the first accused had executed a sale agreement in favour of the complainant after receiving a part sale consideration of a sum of Rs.1,00,000/-. For executing the sale agreement, the accused 2 and 3 i.e., parents of the first accused also joined with the first accused and participated in the said transaction. Thereafter, the first accused refused to execute the sale deed after making several requests by the complainant. Subsequently, on 22.12.1999, all the accused had jointly executed a sale deed in favour of the fourth accused, as such, all the accused had committed defraud, hence, the case has been filed against the accused under Section 420 of IPC. 2. Supporting his complaint 8 documents have been annexed, viz., sale agreement, advocate notice, acknowledgment cards and sale deed had been executed in favour of the fourth accused. The said case has been taken on file after recording sworn statement. Subsequently, the first accused has filed a discharge petition in C.M.C.No.3222 of 2002. After hearing both sides arguments and on perusing the averments of the complainant, the said discharge petition has been dismissed. 3. Against the dismissal order passed by the learned Magistrate, the above revision has been filed by the first accused. 4. The highly competent counsel for the revision petitioner argued that the complainant has filed a civil suit in O.S.No.289 of 2000, on the file of Sub Court, Dharampuram, against the first and fourth accused for execution of sale deed and delivery of possession or directs the first accused to repay the advance amount, a sum of Rs.1,00,000/-with interest at the rate of 24% per annum. Therefore, on the same course of action, a civil suit has been filed since the case is civil in nature, therefore, the criminal case is not maintainable. Therefore, on the same course of action, a civil suit has been filed since the case is civil in nature, therefore, the criminal case is not maintainable. Further, the complainant had also issued legal notice and asked the accused to execute a sale deed in favour of the complainant. Therefore, once a civil suit is initiated for a suit for specific performance on the said transaction, the case would not attain the colour of a criminal nature. On the original cause of action, two separate proceedings have been initiated against the accused for the same remedy, as such, the complaint is not maintainable and the petitioner is entitled for discharge. 5. On verifying the factual position of the case and arguments advanced by the very competent counsel for the petitioners and on perusing the impugned order of the learned Magistrate, this Court is of the view that the learned Magistrate had observed in his order that the complainant had initially filed C.M.P.No.5090 of 2000 and a statement had been recorded, then the case had been taken on his file since there is a prima facie case on the side of the complainant. Further, the complainant was examined as P.W.1. and the case is in a partly heard stage. Therefore, the discharge petition has been dismissed. The learned Magistrate after assigning valid reasons dismissed the petition, therefore, this Court is not inclined to entertain the above revision. The accused's petition which had been filed under Section 205 was allowed, but the learned Magistrate suo moto dismissed the said petition. Now, this Court relinquishes the order and permits the petitioner to enjoy the same relief. Further, this Court directs the learned Magistrate to dispose the main case on topmost priority basis without being influenced by this Court's discussion. 6. In the result, the above revision has been dismissed. Consequently, the order passed in C.M.P.No.3222 of 2002 in C.C.No.72 of 2001, on the file of the Judicial Magistrate-II, Tirupur, dated 16.12.2002 is confirmed. Connected miscellaneous petition is closed.