I.A. Ansari, J.@mdashThis revision is directed against the order, dated 8.6.2007, passed in Complaint Case No. 517C/2004, whereby the learned Sub-Divisional Judicial Magistrate (S) No. 2, Guwahati, having found materials against the accused-Petitioner, under Sections 418 and 420, IPC, had fixed, 25.6.2007, for framing of charges. This revision also impugns the order, dated 7.5.2008, passed in the case aforementioned, whereby charges, under Sections 418 and 423, IPC, have been framed against the accused Petitioner.
2. Heard Mr. J.C. Gaur, learned Counsel for the Petitioner.
3. While considering this revision, it needs to be pointed out that the present one is a complaint case, wherein the charges have been framed under Sections 418 and 423, IPC. It also needs to be pointed out that the charge, in a complaint case, which is triable by following warrant procedure, is framed on the basis of the provisions of Section 245, which reads as under:
245. When accused shall be discharged.-(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
4. In the present case, the complainant examined himself as a witness. In his evidence, the complainant deposed as under:
I have purchased a flat from the accused person, Sardar Jagjit Singh Bhimra. At the time of execution of sale deed, I was told to be provided with a car parking space on the ground floor. The said fact been written in the registered sale deed. The said sale deed had been submitted along with the complaint petition. As I was not provided with car parking space as per agreement, I requested the accused for parking space and the accused although repeatedly assured me of providing the parking space, but, he left for Punjab without providing the parking space to me. I had issued a pleader''s notice to the accused claiming parking space but the accused did not pay any heed. For not providing the parking space to me as aforesaid, I have to park my car outside on rental basis. Because of non-providing of parking space, the value of my flat had been diminished. For parking of my car, I had to pay Rs. 400/- per month as rent and thereby I have suffered financial loss. After service of my pleader''s notice, on one night an unknown person came to me and threatened me for claiming parking space from the accused. I have suffered loss and injury from the year 2001 to 2007 for not providing parking space, I have been compelled to file the case having no alternative.
5. In his cross-examination, the complainant deposed as follows:
I have purchased the flat in the year 2001 and at that time the said building was already complete. At the time of my purchase of said flat, the parking to be provided to me was vacant. In the said sale deed, it is written that "Vendor has offered to sell the said 2nd floor of the 4th storied building with all walls and fixtures on ownership flat as is where is basis described in the schedule to the Purchaser and the Purchaser has also agreed to purchase the said 2nd floor portion of the 4th storied building as stated herein above being a part of GMC Holding No. 432 under Ward No. VII with sole exclusive transferable and irrevocable right to use the same together with proportionate share of land and building along with earmarked as marked ''A'' portion of car parking place at ground floor of the said 4th storied R.C.C. building of his own.
The area of my flat is about 1120 sq. ft. The aforesaid sale deed was brought duly prepared by the accused and I have read over the same. At the time of my purchase, there was parking space sufficient for parking of 3 cars. After about 1 and 1/2 years from the execution of sale deed in my favour, the accused had left Punjab. At the time of purchase of flat, I had a car. I have to keep the said car parked outside on rental basis. Thereafter, having no alternative I have sold the car. I have not produced, any proof of my requests/demand made to the accused for parking. I know the accused from the time of purchase of flat. Sri Tushar Kanti Dutta, Advocate had told me that the accused will sell the said flat. The said advocate had also requested the accused for providing car parking space to me. When the unknown person had threatened to me, the accused was at Guwahati or not I do not know.
As the accused had not provided me the parking place to me with flat, I have filed a civil suit against the accused and the said suit still pending. I have purchased the said flat at Rs. 1,50,000/-. The present value of the said flat will be about Rs. 10,00,000/-. I have filed this case to exercise my right accrued on the basis of sale deed of said flat for not providing the car parking space. I will not sell the said flat even if the accused make payment of Rs. 10,00,000/- to me. It is not a fact that I am entitled to earmarked car parking from accused as per the sale deed. It is not a fact that I have filed a false case. I have filed the criminal case first and thereafter the civil case.
6. At the stage of consideration of charge in a complaint case, which is to be tried by warrant procedure, the Court is not required to determine the question as to whether a piece of evidence is believable or not. What is required to be determined is that if the evidence, remains unrebutted, would seek evidence warrant conviction of the accused.
7. In the present case, there is no dispute that the property, in question, was sold by the accused to the complainant. There is also no dispute that the accused had undertaken to provide parking space on the ground floor. The complainant''s grievance is that though the accused had undertaken to provide space for parking on the ground floor, no such space was provided to him; and that despite repeated requests made by the complainant, the accused kept on delaying the handing over of the possession of the parking space, which the accused had undertaken to provide, and, eventually, the accused left for Punjab without providing parking space to the accused. Whether the accused had, as a matter of fact, provided the parking space to the complainant or not is a disputed question of fact, which would be decided only at the trial, for, it is, at this stage, not permissible, for this Court, to express any opinion as regards the correctness or veracity of the evidence so adduced by the complainant. The accused-Petitioner appears to rely on the sale deed, which indicates that the parking space had been made available to the complainant. Notwithstanding the said recital in the sale deed, the question as to whether the parking space had, as a matter of fact, been handed over to the complainant by the accused still remains, in the face of the evidence of the complainant, a disputed question of fact and such a disputed question of fact cannot be decided merely on the basis of the recitals in the sale deed. Even when a sale deed describes the vendor as a title-holder of the property or the possessor of the property, which the vendor sells, the vendor''s title to, and possession over, the property may be subject of dispute and such a dispute cannot be decided merely on the basis of the statement made in the relevant sale deed, though such a statement made in a sale deed may be one of the relevant pieces of evidence.
8. It has sought to be shown, on behalf of the Petitioner, that the complaint is belated. This is yet a question, which would be considered at the time of final disposal of the case, because delay, in launching prosecution, is an aspect of the case, which would be considered for the purpose of determining the veracity or truthfulness of the accusations made by the complainant and the delay, if any, cannot become a ground, at this stage, to discharge the accused-Petitioner.
9. If the accused, as alleged by the complainant, had, dishonestly or fraudulently, made the complainant believe that the accused would not only be able to transfer his title to the property, in question, but would also be able to provide parking space to the accused and, if acting on the belief, which was so induced by the accused, the complainant had purchased the property and the accused, notwithstanding the recital in the sale deed, did not hand over the possession of parking space, as had been promised by him to the complainant and fled away to Punjab, the course of conduct of the accused would amount to committing an offence of cheating punishable u/s 420, IPC inasmuch as when a person, on being fraudulently or dishonestly induced, does an act, which he would not have done, or omits to do an act, which he would have, otherwise, done, but for the inducement made, such conduct of the accused would make him liable for the offence of cheating as defined in Section 415 and if, in such a case, the offence of cheating induces the person deceived to part with money, the act of the accused would amount to an offence punishable u/s 420 , IPC. This apart, when a person, dishonestly or fraudulently, signs or executes a deed or instrument purporting to transfer his interest in a property and when such a deed contains a false statement of the transferor relating to the consideration for such transfer, the person, who signs or executes the deed or the instruments shall be punishable u/s 423, IPC.
10. It has also been sought to be indicated, on behalf of the accused-Petitioner, that the accused-Petitioner had shown a parking space on the ground floor to the complainant. The question, in the present case, is not as to whether parking space at the ground floor had been shown by the accused to the complainant or not; rather, the question is as to whether the accused had promised to provide parking space to the complainant or not and as to whether the accused had, as a matter of fact, handed over the possession of the parking space or not and if he had promised and failed to hand over the space as indicated hereinbefore, whether such act was done by the accused for the purpose of making wrongful gain for himself or for the purpose of causing wrongful loss to the complainant. All these questions would be answered only when the trial takes place.
11. Because of what have been discussed and pointed out above, this Court does not find that the impugned order, framing charges against the accused Petitioner, suffers from any infirmity, factual or legal. This revision is, therefore, not admitted and the same shall accordingly stand dismissed.
