INDIRABEN MAHENDRABHAI TRIVEDI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this Criminal Misc. Application under Section 482 of the Criminal Procedure Code, the petitioner original Accused No. 1 has prayed to quash and set aside the proceedings of M.Case No. 1 of 1999 pending in the Court of learned Chief Judicial Magistrate, Surendranagar.

(2.) The facts leading to the present application in nutshell are : That the respondent No.2 herein original complainant has filed complaint in question against the petitioner for the offences punishable under Section 406, 420 and 468 of the Indian Penal Code alleging inter-alia that he has purchased house in question i.e. House No. M/96, Sangam Society from the petitioner and subsequently, she has sold the said property to somebody else. However, prior thereto there was an agreement to sale dated 01.09.1986 in favour of one Dineshbhai which was not pointed out and inspite of the aforesaid agreement to sale dated 01.09.1986 in favour of one Dineshbhai, the property in question was sold to the original complainant in the month of August, 1988. It is alleged that the petitioner has committed offence punishable under Sections 406, 420 read with Section 468 of the Indian Penal Code. Therefore, the petitioner original accused No.1 has preferred the present application under Section 482 of the Criminal Procedure Code.

(3.) It is not in dispute that said Dineshbhai Sunderlal Patadia, has filed Special Civil Suit No. 122 of 1988 in the Court of 2nd Joint Civil Judge Senior Division, Surendranagar for specific performance of agreement to sale dated 01.09.1986 in which original complainant was also a party to the said proceedings being Defendant No.2 and when transaction has taken place between respondent No.2 original complainant and the original owner in the year 1988, he was aware of the fact that there exists agreement to sale dated 01.09.1986 in favour of one Dineshbhai. It is also required to be noted that respondent No.2 as defendant No.2 did not contest the aforesaid suit and ultimately decree came to be passed by the learned trial Court by judgment and decree dated 28.02.1995. It is also required to be noted and it has come on record that being aggrieved and dissatisfied with the judgment and order passed by the learned trial Court dated 28.02.1995 passed in Special Civil Suit No. 122 of 1988, First Appeal was preferred before the Division Bench of this Court. The Division Bench of this Court dismissed the said First Appeal by judgment and order dated 5th April, 1995 by observing that respondent No.2 original complainant was aware of the transaction / agreement to sale dated 01.09.1986 and that he cannot be said bona-fide purchaser without notice. In view of the above when respondent No.2 - original complainant was aware of the agreement to sale dated 01.09.1986 and inspite of that he has purchased the said property, it cannot be said that he was cheated by the original owner.