LALJIBHAI ARJANBHAI PATEL Vs. HEMLATABEN BABULAL KOLADIYA

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioner, original complainant has prayed for an appropriate order quashing and setting aside the judgment and order passed by the learned Sessions Court, Junagadh dated 13-4-07 in Criminal Revision Application No.108/05 as well as the order passed by the ld. Chief Judicial Magistrate, Junagadh dated 15-9-05 passed in inquiry case No.83/05 in dismissing the complaint u/s 203 of the Criminal Procedure Code.

(2.) The petitioner filed criminal case being inquiry case No.83/05 against the respondent Nos.1 to 3 herein, original accused in the Court of ld. Chief Judicial Magistrate for the offence u/s 406 r/w 420 of IPC alleging inter alia that the petitioner has entered into one agreement to sale with respect to land in question in the year 1996 and thereafter by supplementary agreement to sale in the year 1997 and the petitioner has paid an amount of Rs.1 lac towards bana amount. However, the respondents have not executed the sale deed even for the land which is found to be in their possession and therefore, it is alleged that the respondents have committed the offence u/s 406 r/w 420 of IPC. The ld. Magistrate sent the complaint to the Police Inspector, Junagadh SB Division Police Station for inquiry u/s 202 of Criminal Procedure Code and after inquiry, the Investigating Officer submitted the report that there is a case made out against the accused persons for the offence u/s 406 r/w 420 of IPC. The said report, statements, evidence etc. came to be considered by the ld. Chief Judicial Magistrate, Junagadh and after considering the same, the ld. Chief Judicial Magistrate dismissed the said complaint in exercise of powers u/s 203 of Criminal Procedure Code by holding that basically the dispute is of a civil nature and for the agreement to sale, the petitioner has already filed the Special Civil Suit No.134/04 for specific relief of the agreement to sale of 1997. Being aggrieved by the order passed by the ld. Chief Judicial Magistrate, Junagadh dated 15-9-05, the petitioner preferred revision application being Criminal Revision Application No.108/05 before the learned Sessions Court, Junagadh and the learned Sessions Court, Junagadh by its judgment and order dated 13-4-07 has dismissed the said revision application confirming the order passed by the ld. Chief Judicial Magistrate. Being aggrieved by both the aforesaid orders, the petitioner preferred this petition under Article 227 of the Constitution of India.

(3.) Shri Dagli, learned advocate appearing on behalf of the petitioner has vehemently submitted that both the Courts below have materially erred in dismissing the complaint by holding that the dispute in the complaint is purely of a civil nature. It is submitted that even the learned trial Court has materially erred in holding that the suit which has been filed by the petitioner for specific performance of the agreement to sale is barred by limitation. He has also further submitted that the petitioner has paid an amount of Rs.1 lac towards bana amount for the entire land in question and agreement to sale came to be executed by the respondents, - original land owner, though they were not in possession of the entire land in question and therefore, the intention of the accused persons was to cheat the petitioner. It is also further submitted by him that even for the land which is actually in possession of the original land owner, the petitioner was ready and willing to purchase the same and pay the sale consideration, still the accused persons did not execute the sale deed. Under the circumstances, it is requested to allow the present petition.