The pendency of a civil suit does not bar the initiation of a criminal complaint. When a complaint has been dismissed by the Magistrate, the accused has the right to be heard before the revisional court.

JUDGMENT

(Prayer: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records and to quash the complaint in M.P.No.1853 of 2008 on the file of the Metropolitan Magistrate No.23, Saidapet.)

1. This petition is filed to call for the records and quash the complaint in M.P.No.1853 of 2008 on the file of XXIII Metropolitan Magistrate, Saidapet, Chennai.

2. The respondent filed a private complaint against the petitioners under Section 200 Cr.P.C., for the offences under Sections 403, 406, 420, 423, 506 r/w 34 and 109 IPC. Petitioners are the accused 1 to 3 in the complaint.

3. The allegations made against the petitioners, in brief are that:

3(i). Respondent/complainant borrowed a sum of Rs.3.25 lakhs from the first accused/first petitioner on various occasions. In 1994, the divorced wife of the respondent created some domestic problems. First accused demanded repayment of money on 25.05.1995, respondent executed an agreement to sell the property viz., plot No.AP 214, 9th Street, K.K.Nagar, Chennai, for Rs.4.75 lakhs. The loan of Rs.3.25 lakhs was treated as advance. First accused undertook to discharge the mortgage loan to Tamilnadu Housing Board from the balance sale consideration of Rs.1.50 lakhs. Though, the divorced wife of respondent was in possession of the property, it was stated in the sale agreement that possession was handed over to the first accused. On the instructions of first accused, respondent executed a Power of Attorney Deed in favour of his wife, the second accused on 25.05.1995. This Power of Attorney Deed was given as a security to the loan of Rs.3.25 lakhs, given by the first accused. There was an understanding that Power of Attorney Deed would be acted upon only if respondent's divorced wife created any problem. Respondent's divorced wife filed O.S.No.4123 of 1995 against the respondent and first accused for permanent injunction to protect her possession. First accused filed O.S.No.4320 of 1995, for mandatory injunction against respondent's divorced wife to deliver the possession of the property. That suit was decreed and delivery was taken in E.P.No.568 of 2005. The mortgage loan was not repaid by the first accused as per the undertaking given in the sale agreement. First accused agreed to pay the market price if the respondent discharges the mortgage. Respondent paid the entire balance to his employer on 20.09.2006 and registered the discharge receipt on 04.10.2006. The first and second accused started behaving differently and therefore, respondent cancelled the Power of Attorney Deed in favour of the second accused on 25.01.2007. Respondent surprised to know that even on 20.12.2006, second accused executed a sale deed in favour of her son, the third accused for Rs.11 lakhs. There is no mention about sale agreement in the sale deed nor the consideration paid by the first accused. After the sale in favour of the third accused, second accused has not rendered accounts. The sale in favour of the third accused is null and void. Therefore, he filed a suit in C.S.No.403/2007, seeking declaration that the sale deed dated 20.12.2006 is null and void and for recovery of possession and damage. The original documents are with the respondent. Accused threatened the respondent on 19.01.2007 of dire consequences if the original documents are not delivered to them. The act of the accused in collusion with each other with an intention to cheat the respondent of his property by committing criminal breach of trust, by executing a sale deed in favour of the third accused and without accounting for the sale are liable to be punished for the offences under Sections 403, 406, 420, 423, 506(ii) IPC.

4. After filing this complaint, the learned Judicial Magistrate on going through the complaint, sworn statement of the complainant / respondent found that there are no material to proceed against the petitioners under the penal provisions of Indian Penal Code and thus, dismissed the pe