CHANDRA NATH SARMA Vs. MAHESH NATH SARMA

JUDGEMENT

(1.) Accused-petitioners have filed the present petition under Section 482 and/or 401 of the Criminal Procedure Code, 1973 for quashing the Criminal Proceeding initiated on the complaint filed by the complainant opposite party, which was registered as complaint case No. 443C/80 and pending for disposal before the learned Judicial Magistrate of the First Class at Guwahati. The accused petitioners also filed a petition under Sub-Section (2) of Section 245, Cr. P.C. before the learned trial Court which was dismissed by the order dated 14-7-87 and this order has also been challenged.

(2.) The complaint petition is available at Annexure-'A' to the present petition and the initial statement of the complainant is at Annexure-'B'. In the complaint petition it was stated that the complainant along with three other co-pattadars executed a general power of attorney which was also registered in favour of the accused persons empowering them to sell 30 Bighas 15 Lechas of land. It is specifically stated that all the co-pattadars are joint owners. According to the complainant, he was reluctant initially to execute the power of attorney but on repeated insistence of the accused persons, it was so executed. It has also been stated that for the sale the accused persons were to get 2% commission. The accused persons sold 2 Bs 4 Ks of land at Rs. 61,000/-. But the grievance of the complainant is that the amount was not handed over to the complainant though he demanded the money. It has also been stated in the complaint petition that the accused persons refused to pay the amount to the complainant on the plea that the share of the complainant was not sold. The complainant revoked his power of attorney and also informed the accused persons but in spite of such revocation the accused persons sold another 2 Bighas 2 Kathas of land at a consideration of Rs. 48,000/- and out of said 2 Bighas 2 Kathas of land one bighas of land belonged to the complainant. It has been alleged that the accused persons dishonestly induced the complainant to execute the said power of attorney and have also misappropriated the entire sale proceeds. After recording the initial statements of the complainant, the learned trial Court on 21-3-80 passed an order directing issuance of warrant of arrest with bail of Rs. 5000/- under Section 406/420, IPC. In the petition under Section 245(2), Cr.P.C., the accused persons pleaded before the learned trial Court that prima facie case was not made out; that if the complaint petition and initial statements are taken to be true it would disclose a dispute of civil nature; that the criminal proceeding has been initiated only to harass the accused persons; that before instituting the present criminal proceeding the complainant instituted several cases concerning the subject matter and that a Civil Suit being Title Suit No. 131/79 has been filed by the complainant and another co-pattadar, namely, Jadu Nath Sarma before the Court of learned Assistant District Judge No. 1, Guwahati which is still pending.

(3.) I have heard Mr. J.M. Chaudhury, learned counsel for the petitioner and Mr. C.R. De, learned counsel for the opposite party.