RAM BABU MAHESWARI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application for quashing the complaint case No. C.R. 861/84 pending in the court of Additional Chief Judicial Magistrate, Nagaon registered on the complaint dated 2 1-4-84 filed by the opposite party No. 2 wherein it was alleged that one Swami Gobind Han came to Nagaon on 7-2-1981 and represented that in his own building in Brindavan Asram the complainant might raise a two roomed house with a bathroom on the first floor for the complainant and he could live there in comfort, and that the construction cost would be around Rs. 25,000/- only. The complainant agreed and on the same day paid Rs. 2,000/- in advance to the Swami who also took the subsequent installments and thus Rs. 28,000/- in all on different dates and informed the complainant that the flat was complete. Hearing reports that the Swami was contemplating to sell the property to some other persons the complainant went to Brindavan when the Swami denied the reports and assured the complainant that he would not sell it and in case he was compelled to sell, he would pay Rs. 40,000/- to the complainant by way of compensation before any such sale. The complainant also stated to have informed the instant petitioner, Rambabu Maheswari not to purchase the property. On 21-3-1984 the complainant was informed by one Mahesh Chandra Gautam that the Swami had sold the property to Rambabu Maheswari, the instant petitioner, in violation of the assurance. Hence the complainant under sections 406/420 I.P.C. wherein a non- bailable warrant was issued to Swami Gobind Han.

(2.) The petitioner submits that he is bonafide purchaser of the property for a consideration of Rupees one Lakh and that he had no notice or knowledge of any agreement, as stated in the complaint and that the prosecution being purely of a civil nature, the Additional Chief Judicial Magistrate, Nagaon acted without jurisdiction in taking cognizance of the criminal case and issuing process.

(3.) Mr. J.M. Choudhury, the learned counsel for opposite party No. 2, submits that the Swami came to Nagaon, took the first installment after the agreement at Nagaon and from his subsequent conduct it was crystal clear that he had dishonest intention to cheat the complainant and, as such, evidence alone will show whether he was liable under section 406/420 I.P.C. The instant petitioner, Mr. Choudhury submits, may not have been associated with Swami at the stage of making the agreement and taking the first installment at Nagaon, but he abated the offence by purchasing the property from the Swami at a high price and as such evidence alone will show whether he abated the offence and this is not the stage for quashing the proceeding as it cannot be said that the ingredients of the offence are not proved by the F.I.R.