Can I file second complaint under section 223 BNSS after dismissal of first on the same cause of action. I filed a complaint against the seller of the land for committed fraud in the course of execution of sale deed. Seller shown that he is the sole owner of the land because it was devolved to him after his father’s death. When the sale deed was registered in the officer of registrar and I went to get possession of the land, then came to know that the property belongs to the irrigation department. This fact was concealed by him at the time of registration of sale deed.
That complaint was dismissed because the finding of the magistrate that the dispute is pertaining to the civil dispute and no criminal case is made out from the complaint. Later on, I came to know that the said land was already sold to one more person prior to my sale deed. Same thing happened in that case. One more fact I came to know that immediately before the sale deed the seller received a notice from the irrigation department to vacate the land. On breach of that notice a proceeding has been initiated by the department for his eviction from the land.
Asked from: Uttarakhand
You can file a second complaint on the same cause of action after the dismissal of the first one. From the facts, it appears that the accused had the intention to deceive right from the beginning. He has also cheated another person in a similar manner. The seller received a notice from the Irrigation Department to vacate the land, which proves that he was aware that he was an illegal occupant of the property. Since the seller is not the lawful owner of the land, he falsely claimed ownership and induced you to purchase it. These facts clearly establish that the offence of cheating has been committed.
The first complaint was wrongly dismissed by the court. When the Magistrate decided that there were no sufficient grounds to summon the accused, stating the case was civil in nature, he was required to provide you with an opportunity to be heard. That opportunity was not given before the complaint was dismissed. Therefore, you also have the right to file a revision Section 438 BNSS against that order of Magistrate.
The matter is entirely criminal in nature because the accused has committed the offence of cheating. Moreover, additional facts have come to light that were not within your knowledge when the original complaint was filed. Hence, you can file a second complaint, including these new facts, which further support that the accused had the intention to deceive you from the beginning by pretending to be the owner and persuading you to purchase the land. Section 223 does not bar a second complaint on the same cause of action when it is accompanied by new facts that were unknown to the complainant at the time of the first complaint.