M.S. Verma And Anr. vs State And Ors. on 16 October, 2004

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74
Delhi High Court
M.S. Verma And Anr. vs State And Ors. on 16 October, 2004
Author: S Agarwal
Bench: S Agarwal


JUDGMENT

S.K. Agarwal, J.

1. By this petition under section 482 of the Code of Criminal Procedure (for short `Cr.P.C’) read with Article 227 of the Constitution of India petitioners have prayed for quashing the order dated 15.5.99, summoning them for the offences under sections 40/441/506 IPC on the complaint filed by the respondent M/s.Sawhney Builders Pvt.Ltd. Through its Managing Director Sh.T.S.Sawhney.

2. Petitioners No.1 and 2 are the Ex-Chairman and Ex-Assistant General Manager (for short AGM) respectively of the State Bank of India. M/s.Sawhney Export House Pvt.Ltd. are owners of property No.C-21, Mathura Road, Friends Colony, New Delhi (hereinafter, the property) which was leased out to the Bank, vide lease deed dated 23.1.1987 for a period of five years, which expired. On the death of Shri Ram Singh of the Lesser Company, Shri T.S.Sawhney and Shri N.P.Singh became the owners of the property and they executed a fresh lease deed on 1.8.1992, for a period of five years with an option to the bank to renew the tenancy for a further period of five years. The lease was to commence from 1.1.1992. On that day three agreements were executed between the parties i.e. (a) Lease Deed for tenancy of the premises @ Rs.38,400/- per month by the Lessers T.S. Sawhney and N.P.Singh; (b) Hire and Maintenance Agreement for Central Air Conditioning Plant and for providing lift at the premises @ Rs.42,000/- per month and Rs.5,000/- per month as operational charges by Sawhney Buildings Pvt.Ltd. through its Managing Director T.S. Sawhney; and (c ) Hire and Maintenance Agreement for use of furniture/furnishing @ Rs.39,600/- per month through Sawhney Brothers, Partnershi concern.

3. On 14.5.1996 respondents issued a notice, asking the Bank to make alternate arrangement and to hand over vacant possession of the premises by 31.12.1996. In the meantime, on 27.6.1996, the Bank exercised its option and renewed the lease for another period of five years and intimated the respondents through registered letter. The landlord did not agree to renew the lease and there was a dispute. On 18.11.1997, landlord filed a suit for possession of the premises bearing S.No.2439/97. The bank file the written statement and the counter claim for specific performance.

4. On 27.2.1999, respondent No.2-M/s.Sawhney Builders Pvt.Ltd. filed a complaint against the Chairman and AGM of the Bank, in the Court of Metropolitan Magistrate, alleging that they had stopped the functioning of the AC Plant and lift in the tenanted prerises on 15th August, 1996; AC Plant rooms were locked by the contractor, and keys were handed over to them. It was alleged that the Bank officials started using the services of the AC plant and the lift, thereby misappropriated the property of the respondents, entrusted to the Bank vide agreement dated 1.8.92 which provided that after termination of the period of lease, Lessers would be entitled to remove their equipment and the Bank shall have no objection. It is alleged that on 17.8.1998, one of their employee was threatened by petitioner No.2 not to enter the premises of the bank otherwise he will have to face dire consequences. On above allegations vide order dated 15.5.1999, trial court held that prima facie offences under sections 403, 441 and 506 IPC was made out against the petitioner and passed the impugned order of summoning.

5. The above order of summoning dated 15.5.99 is under challenge. Learned counsel for petitioner argued that allegations contained in the complaint are absolutely false and the complaint is an abuse of process of the Court and the same is liable to be quashed. Respondent-T.S. Sawhney, Managing Director of the respondent-Company appearing in person argued to the contrary.

6. It would be helpful to consider basic ingredients of each of the offence for which petitioners have been summoned. The essential ingredients of the offence under section 403 IPC are : (a) that the subject matter of the offence is movable property; (b) it belonged to the complainant; (c ) the accused misappropriated or converted to his own use the said property; and (iv) that it was done dishonestly. In this case the air-conditioning plant and the lifts permanently installed in the premises cannot be deemed to be moveable property, as envisaged under section 403; further the user of the immovable property was dependent upon the functioning of the AC plants and the lift. The petitioners exercised their option under the lease agreement and requeshed for extending the lease for another period of five years. There was a dispute. The owner-landlord filed a suit for possession and the tenant filed a written statement claiming specific performance of three agreements. The Managing Director of the complainant Company is the co-owner of the property in question and he has been receiving not only the rent, but also the hire charges for the use of the Air Conditions and the lifts etc. of course under the separate agreement. The basic ingredients of the offence of section 403 of the IPC are not made out because firstly, it was not a moveable property and secondly because facts do not reveal that there was any dishonest intention on the part of the tenants. It is well settled law that the civil proceedings cannot be allowed to be converted into criminal proceedings. The dispute in respect of the use of AC Plant and lift may, at best, give rise to a cause of action in favor of the owners-landlord for recovery of damages etc, but it does not make out essential ingredients of the offence of criminal misappropriation.

7. Second offence for which petitioners were summoned is criminal trespass. Section 441 of the Code, defines criminal trespass, as under :-

441. Criminal Trespass.—-Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass.

8. In this case, the Bank was already in possession of the property under the lease agreement. The lease had expired. The bank exercised the option for renewal for further period of five years; whether the renewal was justified or not could be determine only by the civil court. By no stretch of imagination, it can be said that option to continue in the tenanted premises for another five years, in terms of the agreement was with a view to intimidate, insult or annoy the owners. When section 441 speaks of entering on property with intent to commit an offence, or to insult, intimidate, or annoy any person in possession or property, it actually speaks of the main intention behind the action and not the subsidiary intention that may be the result. In order to establish that entry upon property was with any one of the aforesaid intentions, it must be satisfied that causing such annoyance, intimidation or insult was the dominant intention of the entry into the property. The continuance in possession a ter expiry of the lease cannot amount to criminal trespass. (Matri Vs. State and Kamal Vs. Naval Kishan, ).

9. Lastly, it is alleged in the complaint that on 17.8.1998 Dharam Singh, an employee of the respondent-Company had gone to the premises in dispute to take charge of the A.C. Plant and lift, he was not permitted to enter and was threatened with dire consequences, therefore, an offence under section 506 IPC was committed. Admittedly, on that day, the said employee did not call the police and no report was lodged. As per the complainant’s own showing, there was absolutely no assault. The complaint was fixed in the court after about six months. Section 506 IPC provides punishment for criminal intimidation which is defined in section 503 IPC. The intention is an essential ingredient of the offence. There is hardly any material to show that the threat was intended to cause any alarm. Thus , the basic ingredient of section 506 were also not made out.

10. Mr.T.S.Sawhney (respondent No.3) appearing in person argued that at the time of summoning only prima facie material is enough; that evidence cannot be weighed at this preliminary stage and the complaint cannot be quashed. In support of his submission reliance was placed on the Supreme Court decisions in (1) State of Bihar Vs. Ramesh Singh ; (2) Union of India Vs. Prafulla Kumar Samal and Anr ; (iii) Mrs.Dhanalakshmi Vs. R.Prasanna Kumar and Ors ; (iv) Brijbailal Vs. State of MP 1991 Suppl (1) SCC 200. There can be no dispute about the law laid down by the Supreme Court governing the principles to find out whether a prima facie case for framing a charge against the accused is made out or not. The ratio of the various decisions cited by the respondent is not applicable to the facts at hand.

11. In this case, basic ingredients of the various alleged offences for which the petitioners were summoned are not made out. It was a civil dispute arising out of alleged breach of lease agreements which has been given a colour of criminal prosecution, which is not permissible in law. Petitioner No.1, admittedly, was the Chairman of the Bank, having its office at Mumbai and petitioner No.2 was the AGM posted in the local office of residential Staff Training Centre at New Friends Colony, New Delhi.

The allegations made in the complaint and the supporting documents do not satisfy basic ingredients for the offence of misappropriation, criminal trespass or criminal intimidation.

12. For the foregoing reasons, the petition is allowed. The impugned order of summoning as well as complaint are quashed. Petition stands disposed of. dusty.

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