KAMALUDIN ALIAS KAMAL Vs. MANGAL DAS

JUDGEMENT

(1.) THIS is revision petition under Section 401 of the Code of Criminal Procedure, for quashing judgment dated July 18, 1989 of the Additional Sessions Judge, Gurgaon vide which he set aside the order dated September 25, 1987 of the Judicial Magistrate First Class, Gurgaon, vide which he had summoned the respondents under Section 420, Indian Penal Code.

(2.) KAMALUDIN petitioner had filed a complaint under Section 420 of the Indian Penal Code against the accused, now respondents in the petition. The complainant had alleged in his complaint that the accused and Deepak son of Prem Prasad were the owners of agricultural land detailed in para 1 of the complaint. The agricultural land was in cultivating possession of one Rooda son of Matru as tenant gair mourusi. Mangal Dass for himself and on behalf of his co-accused as their General Power of Attorney entered into an agreement on July 24, 1985 with the complainant regarding the agricultural land mentioned in Para 1 of the complaint. The transaction was witnessed by PWs Bhola, Abdul, Basu and Yasin. Accused No. 1 Mangal Dass mentioned in the agreement himself as General Power of Attorney of accused 2 to 7 and 6 to 10. Accused No. 1 received Rs. 5000/- as advance sale price as part payment out of the total sale consideration and he promised to get the tenant Rooda ejected from the suit land and for that purpose he received Rs. 400/- as expenses from the complainant. Accused Mangal Das filed ejectment petition against tenant Rooda on August 23, 1985 on the ground of non-payment of batai, but later on accused Mangal Das colluded with Rooda etc. and executed an agreement in favour of Rooda and his son Kalu for a sale consideration of Rs. 43,000/-. The sale consideration so agreed was Rs. 13,000/- more than that was agreed between the complainant and the accused. The agreement in favour of Rooda etc. was executed by accused Mangal Das on behalf of himself and other accused in the capacity of their General Power of Attorney. The complainant filed a suit for permanent injunction against Mangal Das etc., in which stay had been granted in favour of the complainant. It is alleged that in that suit the other accused had filed a written statement, in which they had stated that the alleged Power of Attorney in favour of Mangal Das was forged one and accused Deepak had been stated to be a minor. It had also been alleged that in the written statement filed by all the accused in the alleged civil suit still pending in the court of competent jurisdiction mentioned that the ejectment petition had been dismissed whereas that was still pending at that time. It is then alleged in the complaint that the accused had executed an Ikrar Nama first in the name of the complainant and had received earnest money from the complainant but later on he colluded with the tenant Rooda and executed another agreement of the same property and also received consideration from him. The accused had also withdrawn the suit for permanent injunction against Rooda in a clandestine manner. Ultimately, it is alleged in the complaint that the accused had cheated the complainant and are, thus, liable to be proceeded against under Section 420 of the Indian Penal Code.

(3.) THE respondent Mangal Das etc. filed a Revision Petition against the order of the Judicial Magistrate First Class, Gurgaon, dated September 25, 1987. The learned Additional Sessions Judge, Gurgaon, vide his judgment dated July 18, 1989 set aside the order, dated September 25, 1987 of the learned Judicial Magistrate First Class as illegal by holding that so far as accused 2 to 10 are concerned, there was neither any allegation nor evidence of any cheating against them. As regard Mangal Das accused, he held that his act of not keeping the promise of selling the land in accordance with the agreement to the petitioner and further selling it to Rooda is simply breach of contract and had given rise only to a civil liability. It is in these circumstances that Kalamudin-complainant has filed this Revision Petition against the order of the Additional Sessions Judge for quashing the same and for maintaining the order of the learned Judicial Magistrate First Class, Gurgaon, dated September 25, 1987.