JATIN BORUAH Vs. SHIV KUMAR SAH

JUDGEMENT

(1.) Heard Mr. AK Gupta, learned counsel appearing for the petitioner/ complainant and Mr. S Islam, learned counsel for the respondents No. 1 to 5.

(2.) This petition under Sec. 482 CrPC has been filed by the petitioner praying for setting aside and quashing of the order, dtd. 18/11/2017, passed by the learned Additional Sessions Judge, Tinsukia in Criminal Revision No. 03 (1)/2017 whereby the order dtd. 18/11/2016 passed in CR 91 C/2019 by the learned JMFC, Tinsukia taking cognizance of offences against the opposite parties under Ss. 120B/199/420/423 of the IPC was set aside.

(3.) The petitioner/ complainant's case precisely is that he filed a complaint case against the respondents and another, namely, Manoj Kumar Sharma, on 27/10/2016, in the Court of learned Chief Judicial Magistrate, Tinsukia alleging, inter-alia , that on 7/1/2013, the accused Sri Manoj Kumar Sharma executed a Power of Attorney registered vide Deed No.8/2013 before Senior Sub-Registrar, Tinsukia in favour of Bikash Jyoti Baruah thereby authorizing and empowering him to sell his land measuring 0 Bigha 2 Kathas 10 Lessas, covered by Dag No.189 of periodic Patta No.11, situated at Dihingia Gaon, Mouza- Bogdung, DistrictTinsukia, Assam to intending purcha-ser(s) and to do all the acts and deeds for giving effect of sale and in pursuance thereof on 12/3/2013, the said Bikash Jyoti Baruah entered into an Agreement for sale with the complainant for the aforesaid land and received Rs.75,000.00 as advance, out of fixed consideration of Rs.1,00,000.00 and handed over the physical possession of the said land to the complainant well to the knowledge of Manoj Kumar Sharma. However, the said attorney did not execute the sale deed by assigning this and that reason and in the meantime, the opposite party No.1 taking advantage of the situation tried to dispossess the petitioner.Having no alternative, on 10/2/2014, the petitioner filed TS No.6/2014 in the Court of learned Munsiff No.1, Tinsukia praying for Specific Performance of contract, injunction restraining the opposite party No. 1 or any other person claiming through him and the learned Munsiff No.1 vide order, dtd. 10/2/2014 passed in Misc. (J) Case 8/2014 directed the parties to maintain status-quo as on 10/2/2014. In the said suit, Bikash Jyoti Baruah entered appearance for himself as well as for Sri Manoj Kumar Sharma as an attorney and the Opposite Party No.1 also entered appearance and filed their reply. The said opposite party No.1 in his reply stated that the Power of Attorney executed in favour of said Bikash Jyoti Baruah was revoked by said Manoj Kumar Sharma and a fresh attorney was executed in favour of opposite party No.3 and also filed Misc. (J) Case No.3/2015 alleging violation of the status quo order dt. 4/2/2014, which came to be dismissed on 2/9/2015. Thereafter, the opposite party on 23/10/2016 demanded the possession of the said land. The petitioner smelling foul play caused an enquiry and found that the Opposite party No.3 had sold the land by executing a sale deed bearing no.1223 of 2014 in favor of the Opposite party No.2 by making false declaration and affidavits before the concerned authority inspite of the status quo order and in collusion with the other opposite parties and Manoj Kumar Sharma and thereby prayed for taking cognizance of the offences under Ss. 120B/193/199/420/423 of the IPC. The said complaint was registered as CR Case No.91 C/2016. Thereafter, on 27/10/2016, the petitioner was examined on oath under Sec. 200 CrPC and on the same day, the petitioner also filed Petition No. 3062/2016 under Sec. 91 of CrPC praying for calling the records of Misc. (J) Case No.8/2014 and Misc (J) Case No.3/2015 from the court of learned Munsiff No.1. Tinsukia as well as record of Sale Permission No.TDA (T) 188/2000/LS/Pt/189 dtd. 19/6/2014, Sale Permission No.TSK/LSP/1209/2014/Tsk-446 (A) dt. 21/7/2014 from the office of the Tinsukia Development Authority, Tinsukia and Deputy Commissioner, Tinsukia The aforesaid prayer was allowed fixing 17/11/2016 for record and further enquiry. On 17/1/2018, the CW-1 was examined and thereafter, having prima facie satisfied with the existence of sufficient materials for proceeding with the trial, the learned Court below vide order, dtd. 18/11/2016, took cognizance of the offences under Ss. 120B/199/420/423 of the IPC against the opposite parties and one Manoj Kumar Sharma and summons were accordingly issued fixing 31/12/2016 for appearance.