1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1128 OF 2009 Manohar Pamandas Jani ..Petitioner versus Rita Parshuram Jadhav & Ors. ..Respondents ===== Mr.D.S.Chaudhari i/by M/s.Laxim Associates for the petitioner. Smt.A.A.Mane  APP for State. ===== CORAM : V.R.KINGAONKAR, J. DATED : 25 th SEPTEMBER, 2009. P.C. : 1. By this petition, the petitioner challenges orders rendered by the learned Chief Judicial Magistrate, Solapur and learned Additional Sessions Judge, Solapur declining to issue process on basis of his complaint for offence of cheating. 2. The petitioner filed a private case (Exh. H ) alleging that the respondent nos.1 & 2 represented to him that a landed property would be sold to him. He was 2 informed that the respondent no.1 was owner of the property. He entered into an agreement of sale with the respondent no.2, who was a power of attorney appointed by the respondent no.1. He paid amount of Rs. 1,00,000/- towards part of the consideration. He was further required to pay Rs.50,000/- and it was agreed that the rest of the amount shall be paid at the time of the execution of the Sale Deed. According to him, the respondents had no intention to comply with the terms of the agreement, but to obtain the amount from him under false mis-representation. 3. The learned Chief Judicial Magistrate, Solapur referred the complaint for investigation under Section 156(3) of the Criminal Procedure Code to Solapur Police Station. The Investigating Officer submitted the report after the investigation alongwith the necessary statements recorded and the documents collected during the 3 investigation. The investigation revealed that the petitioner never paid any amount to the respondent no.1 as such. The investigation indicated that the agreement was entered into by the petitioner only with the respondent no.2 and Civil Suit (R.C.S.No. 853 of 2003) was filed in the Civil Court by both of them with connivance of each other. The Investigating Officer reported that it was a civil dispute and therefore, no offence was made out. The learned Magistrate dismissed the complaint. The petitioner filed criminal revision application No. 52 of 2008 which also came to be dismissed. 4. Heard the learned counsel in extenso. The learned counsel seeks to rely on certain observations in Kamaladevi Agarwal V/s. State of W.B. & Ors., AIR 2001 Supreme Court 3846. 5. There cannot be duality of opinion that on same set of facts civil and criminal action 4 may be taken if necessary ingredients of the offences are spelt out as well as cause of action for civil action is also made out. In the present case, however, the investigation revealed that the petitioner attempted to lay false claim on the property owned by the respondent no.1 though there was no privity of contract between them. The petition involves disputed questions of facts such as execution of power of attorney by the respondent no.1 in favour of the respondent no.2, the legal right of the respondent no.2 to enter into the agreement with the petitioner and the element of the dishonest intention at the inception of so called agreement of sale between the petitioner and the respondent no.2. The petitioner has already availed civil remedy. No prima facie case is made out; consequently, the petition is dismissed. (V.R.KINGAONKAR, J.)