RAJASHADEVIAR Vs. P. BALASUBRAMANIAM

JUDGEMENT

(1.) 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.) 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. 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.