M.M. Aggarwal, J.
1. This petition had been filed against order dated 24.3.2003 of Additional Sessions Judge, Rohtak whereby order of the Judicial Magistrate, 1st Class dated 26.11.2002 had been set aside and the Additional Sessions Judge had directed that the complaint shall proceed for offence under Sections 420/406/120-B and 506 I.P.C.
2. The facts of the case had been that Sube Singh filed a complaint alleging that Daya Ram and others had entered into an unlawful assembly and hatched a conspiracy. Daya Ram had entered into an agreement to sell his 1/6th share. The sale was to be for Rs. 2 lacs a killa. On 21.8.2000, he had received Rs. 1 lac and then remaining amount Rs. 58,750/- was to be received at the time of registration of sale-deed. However, before 21.12.2000 i.e. the date of performance, Daya Ram had in connivance with other accused cheated the complainant by transferring his 1/6th share to accused Nos. 2 to 10 and accused No. 1 surrendered possession on 4.9.2000 in favour of accused Nos. 2 to 10 and also executed release deed in favour of accused Nos. 2 to 10, that Daya Ram had then lodged a false report with the police. When Sube Singh and witnesses had gone to Daya Ram and other accused, then the accused had threatened that they shall be done to death.
3. The Additional Sessions Judge vide order dated 24.3.2003 directed that since there was a prima facie case for offence under Sections 406/420/120-B/506 I.P.C., against the petitioners, they should be proceeded against for the aforesaid offence by the Magistrate.
4. It is a fact that Sube Singh had already filed a Civil Suit for specific performance on the basis of agreement as against Daya Ram and other accused. That suit is stated to be pending.
5. Counsel for the petitioner had argued that when the civil suit was pending, no criminal prosecution could be launched.
6. Counsel for the complainant Sube Singh had argued that Daya Ram in collusions with other accused had cheated the complainant. They had entered into a conspiracy and threatened the complainant; that, in fact, Daya Ram etc. had got complainant Sube Singh wrongfully implicated in a case.
7. It is a fact that civil Suit filed by Sube Singh against Daya Ram and others for specific performance of the agreement to sell dated 21.8.2000 is pending. However, it is difficult to say as to whether other accused had entered into conspiracy with Daya Ram when Daya Ram executed relinquishment deed in favour of other accused. The averment that all the accused had threatened the complainant appears to have been made to implicate as many as possible.
8. It is settled law that criminal prosecution and Civil Suit can go together. However, I am of the view that the case of cheating is made out only against Daya Ram petitioner who had entered into agreement of sale and received the amount and not the other petitioners. No other offence is made out.
Under these circumstances, the order dated 24.3.2004 of Additional Sessions Judge, Rohtak is set aside to the extent that only Daya Ram shall face trial for offence under Section 420 I.P.C. The complaint against other petitioners shall stand dismissed.