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CR.RA/626/2008 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 626 of 2008
With
CRIMINAL
MISC.APPLICATION No. 14516 of 2008
In
CRIMINAL
REVISION APPLICATION No. 626 of 2008
===============================================
VYOMESH
SURENDRALAL DESAI - Applicant
Versus
SANGEETABEN
SURENDRAKUMAR TIWARI & 3 - Respondents
==============================================
Appearance :
for
Applicant: Bomi H. Sethna (T.S. Nanavati)
For Respondents: 1-2
Party-in-Person
For
Respondent No.3- Notice served
PUBLIC PROSECUTOR for Respondent :
4,
===============================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 27/10/2010
CAV
ORDER
The
petitioner/original respondent no.3 in Revision Application No. 31
of 2008 filed in the Court of Learned Addl. Sessions Judge, Bharuch,
has approached this Court under the provisions of Section 397, read
with section 401 of Criminal Procedure Code 1973, challenging the
judgment & order dated 17/6/2008 passed by Addl. Sessions Judge,
Fast Track, Court No.6, Bharuch in the aforesaid Criminal Revision
Application No. 31 of 2008 where under the Additional Sessions
Judge, Fast Track, has reversed the judgment & order passed by
Mamlatdar and Executive Magistrate in exercise of the power
conferred upon under section 145 of Criminal Procedure Code in Case
No.3 of 2007 dated 11/3/2008.
Facts
in brief leading to filing of this revision application deserves to
be set out as under.
The
petitioner owned premises being Flat no. 107, Vinay Complex, Old
National High Court No. 8, Near Dudhdhara Dairy, Bharuch, which he
permitted to be used by respondent no.2 on Leave & License basis
by executing an agreement dated 18/5/2006 w.e.f. 1/6/2006 on monthly
license fee of Rs.6,000/- and Rs.12,000/- was fixed to be advance
deposit. The said premises has a super built up area of approximately
1100 sq. ft. with an attached terrace of 1500 sq. ft. As per the say
of the petitioner the licensee committed breach of the terms &
conditions hence the Licensor was constrained to issue notice dated
7/10/2006. Pursuant to the said notice, as stated by the petitioner
in memo of this petition, the respondent no.2 came in person and
handed over license fee in arrears and also handed over keys and
possession of the premises under the hand-written note on 4/12/2006.
Respondent no.1 & 2 thereafter, as per the say of the petitioner
in the memo of the petition, forcibly broke upon the lock of the said
premises and trespassed there into. When petitioner came to know
these, he had to proceed immediately for seeking appropriate remedy
and hence the proceedings under section 145 of Criminal Procedure
Code 1973. The application dated 4/5/2007 is placed on record. The
proceedings were initiated. The statement of the petitioner came to
be recorded, the notes were exchanged.
The
respondent no.3 PSI of ‘A’ Division Police Station initiated
proceeding before the Executive Magistrate, Bharuch. On behalf of
the petitioner further documents came to be produced under the list
dated 28/6/2007 which included hand written note dated 4/12/2006
written by respondent no.2 and communication dated 4/12/2006 to the
Secretary, Vinay Complex Housing Society and communication dated
2/4/2007 of the Vinay Complex Owners Housing Services Society Ltd.
The respondent also placed on record list dated 28/6/2007. However
they did not preferred to place any written reply.
Subsequently
the petitioner was examined and cross examined on behalf of
respondent no.1 & 2. Respondent nos. 1 & 2 were also
subjected to examination. Respondent no.3 was also examined before
the Executive Magistrate. After hearing the matter Executive
Magistrate rendered decision dated 28/1/2008 and final order dated
11/3/2008 ordering respondent no.1 & 2 to handover possession to
the petitioner. The respondent no.2 thereafter preferred revision
application against the order of Learned Magistrate before learned
Sessions Judge & Fast Track Court No.6 , Bharuch, being Criminal
Revision Application No. 31 of 2008 reversing the judgment and order
passed by Mamlatdar and Executive Magistrate passed in Cr.P.C./145,
Case No.3 of 2007. Learned Addl. Sessions Judge allowed the said
revision application.
Feeling
aggrieved by the said decision petitioner has preferred present
revision application before this Court, challenging the judgment &
order of Learned Addl. Sessions Judge on the facts & grounds
which are according to him indisputable,which are as under.
a)
The respondent in his list of documents produced letter dated
28/6/207 along with letter dated 7/10/2006. However earlier letter
dated 17/9/2006 is not produced.
b)
Petitioner received letter dated 25/5/2007 from NTPC saying name of
respondent no.2 has been struck off from role of the corporation
w.e.f. 21/6/2006 and he is no more an employee of the Corporation.
c)
Respondent no.2 subsequently represented to the petitioner as if he
was an employee of the Corporation and demanded certain documents
for lease check list and requested for availing renewal of company
leased accommodation.
d)
Petitioner procured copy of electricity consumption during month of
November- December 2006.
e)
Petitioner impugned the judgment of Addl. Sessions Judge on the
ground that learned Addl. Sessions Judge by taking hyper-technical
view without assessment of facts emerging on record and the
decision of the Executive Magistrate, passed the order.
f)
Both the Courts have found that there is leave and license agreement
and that period had expired and under a writing dated 4/12/2006
petitioner had received keys of the flat and Rs.12,000/-.
g)
Respondent no.1 & 2 are having 3 flats in the said Vinay Complex.
h)
Revisional Court’s finding that the respondent entered into the
premises by committing criminal trespass on or about 24-25th
April 2007 and accepting the plea of respondent that new license
agreement, which is a false plea.
The
Learned Advocate for the petitioner contended that the in the
instant case the deposition of the opponent no. 2 came to be
recorded on 10.07.2007 and that of his wife came to be recorded no.
12.07.2007. With respect to the handing over of keys on 4.12.2006
there is consistency in their case in their evidence in chief. It is
the case of the opponent no. 1 that upon handing over of the key,
the opponent had to go for personal and official reasons to Delhi It
is the case of the opponent no.1 specifically which could be seen
from his deposition at page no 103 last para that in or around 24th
25th April 2007 that he had been called by the applicant
and told that the opponent could now reside in the flat no. 107 and
that a new agreement would be executed with the modification that
the deposit now would be 19 thousand and the rent would be 6500
instead of Rs. 6000.
The
Learned Advocate for the petitioner contended that the the case of
the opponent was that had this been not so said by the petitioner
the opponents would not have shifted into the said premises.
The
Learned Advocate for the petitioner contended that at this stage it
is important to note the clause 4,5,7, 10, 12, and 14 of the
Agreement which is found at page no. 11 of the reply of the opponent
dated 2.03.2009.
The
Learned Advocate for the petitioner contended that the the opponent
himself has contended that had the intent of the opponent was to buy
over the flat in question, was clear then the opponent would not
have handed over the keys and express his willingness for the flat
to be sold, in that case it is also the opponent’s case that the
applicant was to pay over the moneys to the opponent. In fact
landlord is never required to pay any money to the tenant and hence
the say of the opponent becomes ample evidence to show that he has
handed over the possession and keys to the applicant on 4.12.2006.
The claim of receiving money was wholly untenable in view of the
clause 12 of the License Agreement.
The
Learned Advocate for the petitioner contended that the from
4.12.2006 the premises was in the possession of the applicant for
which the applicant had paid maintenance from January to May receipt
are to be found at page 68 on the compilation.
The
Learned Advocate for the petitioner contended that the conspicuous
minuscule meter reading 5 for the month of November, December 2006
and zero reading for January February and once again minuscule
reading for 5 for March-April 2007 and there after 265 units for
the month of May and June as per the bills produced at page 144 to
147 also are annexed to the application made under Section 391 read
with section 401 of CR PC for additional material on record,
establishing that during the said period the premises was not in use
or occupation and thereafter on 24 , 25th April 2007 as
per say of the opponent himself he shifter into the premises on the
say of the applicant for new agreement seems to be palpably false
and misleading.
The
Learned Advocate for the petitioner contended that thus its becomes
clear that from that date 24 or 25 of April the opponent illegally
moved into the premises and these dates are emerging from his own
deposition.
The
Learned Advocate for the petitioner contended that from two months
from the date i.e. 24 or 25th of April the applicant moved an
application complaint to the Police Inspector on 4.05.2007 informing
him that the opponent have illegally moved into his premises. The
Report of the inspector is also filed before the Executive
Magistrate within the two months from the date of 24 or 25 th April
hence the findings of the learned Session Judge are wrong and
deserve to be quashed.
The
Learned Advocate for the petitioner contended that the opponents
have no regards for truth. The opponent lured the applicant in
believing that the opponent was serving with NTPC and the premises
was to be rented on official rental. But the fact remains that the
opponent was out of service from 21.06.2006. All the correspondence
made by the opponent produced on record demanding documents from the
applicant making show as if the applicant was in fact in service of
NTPC whereas he was not in services after 21.06.2006.
The
Learned Advocate for the petitioner contended that the in view of
this the application may be allowed.
The
Learned Advocate for the petitioner contended that the opponents be
directed to vacate the premises in question in terms of the order of
the Executive Magistrate.
In
reply to the petition, respondent no. 1 & 2 have filed their
written submissions countering the pleadings taken in the petition
by the petitioner. It is stated in the submission that the
petitioner was not followed prescribed standard for seeking
information from NTPC under RTI Act, but the petitioner used letter
dated 18/5/2007 to cause serious illegal influence and gaining
pecuniary advantage, and the petitioner has failed to provide any
proof for seeking information under RTI Act. It is stated in the
submission that several false electricity bills totaling 6 nos for
the period from November 2006 to September 2007, produced on record
are fake. It is also averred in the written submission that no
money of any kind was paid by the NTPC to the petitioner and hence
lease agreement was strictly between the petitioner and respondent
no.2 herein only. Therefore bringing NTPC name in any kind in the
proceedings is completely trash and is an attempt to misled the
Court.
It
is further averred in the written submission that the lease
agreement was of 11 months beginning from 1/6/2006 to 30/4/2007, and
for premature termination of the lease, the condition of one month
notice from either side is prescribed, which either party have ever
been observed. Petitioner’s letter dated 7/10/2006 was not a notice
and without prior notice termination of lease agreement cannot be
effected into, hence the lease agreement remained effective till
31/4/2007. It is challenged in the written statement that the
petitioner is concocting theory of handing over flat no. 107 on
4/12/2006 by the respondents to the petitioner which is false and
mere message of sending key is not a conclusive proof of the flat
finally handing over to the petitioner. It is stated in the written
statement that no procedure have been followed in the present case
and hence the case is not of criminal trespass and the petition
deserves to be dismissed.
This
Court has heard learned advocate for the petitioner and party in
person. The following indisputable aspects of the matter need to be
enlisted here below for the sake of convenience
The
premises , Flat No. 107 belongs to the applicant and he had let
it to opponent no 1 and 2 on leave and license basis on
Agreement dated 15.05.2006 with effect from 1.06.2006.
The
leave and license basis on Agreement contained term that in
case the opponent desirous of buying the premises and the
applicant was selling the same the opponent would be given first
preference.
The
premises was rented at license fees of Rs. 6000 per month with
two months advance deposit for covering out standing electricity
dues maintenance charges in the event of the same remaining due
on vacating the premises.
The
applicant though his advocate sent a notice on 7.10.2006 calling
upon his tenant to pay up the rent which had not been paid for
two months.
In
response thereto the opponent no. 1 sent note in his own
handwriting that he is sending keys and two months rent
Rs.12000/- within two hours. The said note forms part of the
record.
The
opponent no. 1 has in fact admitted during his cross examination
that in compliance with his note he in fact handed over the keys
to the applicant right on 4.12.2006.
The
applicant on coming to know that the opponent has illegally
broken open the locks on the premises and entered it
unauthorizedly lodged a written complaint on 4.05.2007 with the
concerned Police Inspector for doing need full in the matter.
The
concerned Police Inspector after recording Statements of the
opponent herein above filed his report under Section 145 of the
CR P C on 16.05.2007 informing the Executive Magistrate that
there was likelihood of public order problems and hence action
were required to be taken immediately. This Report dated
16.05.2007 appears to have been received in the office of the
executive Magistrate on 19.05.2007.
The
opponent no.1’s wife sent a communication to the Senior
Superintendent of Police on 4.05.2007 inter alia informing him
that the lease of 11 months had expired the deposit amount of
Rs.12000/- was not being returned to her husband and applicant
was not permitting them to remove their luggage from the
premises.
The
opponent No.1 gave his statement to the concerned Police
Inspector on 8.05.2007 which is on page 71 in the compilation,
stating that the landlord was not paying heed to his request
for transferring the Electricity connection from the developer
to landlords namer as it was essential for his employer NTPS as
well as Income Tax Department. The applicant has further stated
that the landlord informed him that as his son Shri Dhaval Desai
was to go to Canada he wanted to sell the flat and hence in
order to facilitate landlords requirement for showing flats to
potential buyers he that is the opponent gave him keys of the
flat.
This
facts of handing over of keys on 4.12.2006 have also surfaced
during the cross examination of the opponent no.1, before the
Executive Magistrate.
The
opponent No. 1 has though stated that keys were given to the
landlord for facilitating his task to show the flat to potential
buyers but as the opponent was out of station at Delhi and
Kanpur the landlord applied his own locks.
The
extract of the depositions of the opponent no. 1 produced on
page 93 of the compilation go to show that the opponent himself
had handed over the keys on sympathetic ground and for
facilitating showing of the flat to potential buyers to the
landlord.
The
opponent admitted during his deposition that he had not paid
rent for the month of September October 2006. He also admitted
that he did not reply to the Advocate Notice.
The
opponent has also admitted as could be seen from his
deposition reproduced at page 98 that possesses Flat no. 106,
405 and 505 in Vinay Complex. ( It may be noted that premises in
dispute is Flat No. 107 i.e. apart therefrom the opponent has
three more Flats in his possession in the same very complex).
On
page 98 from the reproduction of the testimony of the opponent
no. 1 it could be seen that he clearly admitted that on
4.12.2007 he handed over the keys and Rs.12000/- to Vyomesh
Desai ( Landlord and applicant herein above).
The
Executive Magistrate has recorded clear finding to this effect
in his order dated 28.01.2008.
The
Learned Session Judge has also recorded and accepted these
findings.
But
the learned Session Judge has held that as the applicant could
not disclose the exact date on which the opponents illegally
entered into the premises the application under Section 145
allowed. On this premise the order of the Executive Magistrate
is quashed and set aside.
Against
the backdrop of these factual indisputable aspects the oder impugned
is required to be examined.
The
Learned Session Judge has held that as the applicant could not prove
that the opponent had illegally taken possession of the flat in two
months preceding the date of his complaint the invoking of Section
145 of the Cr P C was not warranted.
The
Learned Session Judge has held that even if it is assumed that the
keys were handed over to the owner applicant on 4.12.2007 but that
in itself would not amount to handing over the possession and in
fact looking to the License Agreement the opponent had right to be
in the premises till entire life of the agreement or License Period
which was to expire only on 30.04.2007.
This
Court is of the view that the Learned Session Judge has not
appreciated the real purport and ambit of Section 145 of Cr.P.C. The
real purport and ambit of section 145 shows that the court while
dealing with the matters arising under Section 145 of Cr PC need not
adjudicate upon the title or entitlement based upon interpretation
of Agreement etc.
The
Learned Session Judge erred in holding that though the keys were in
fact handed over, the possession cannot be said to have been give
back to the licensor. In fact the evidence on record go to show that
the case of the opponent of handing over merely keys without
prejudice to his right to hold on to the premises till the expiry of
the license period which was falling on 30.04.2007 cannot be said to
have established. Had that been the case then, so many aspects
arising and requiring explanation from him would not have remained
un-answered.
In
fact handing over the key to the landlord and story of making
payment of Rs.12000/- only for facilitating the landlord showing
flats to potential buyers cannot be said to have been established.
The
opponent could not successfully show as to why was he insisting on
documents and transfer of the name of the landlord in place of the
developer in name of his employer i.e. NTPC when in fact he ceased
to be in their employment since 21.06.2006. Nor could the opponent
controvert the applicant’s say that the opponent was not in
employment of NTPC from 21.06.2007 till he lured the applicant into
believing that the Flat was being rented as employee of the NTPC and
the documents were required to be produced to them. It is required
to be noted that at one place the very opponent in subsequent reply
has stated that the flat was hired in his personal capacity only and
if it was so, why was then insistence for those documents, if they
were not required for claiming reimbursement.
The
learned Session Judge committed serious error in holding that the
applicant was required to establish beyond doubt the date on which
the possession was said to have been illegally taken over was
falling within preceding two month of the lodgment of such
complaint. In fact applicant or the person invoking Section 145 of
Cr PC would not necessarily be aware of the exact date on which the
illegal possession might have obtained by the trespasser. In fact
the circumstances in the instant case rather go to show that the
opponents moved into the premises well within the period of two
months preceding filing of the complaint by the applicant with
Police Inspector.
The
prescription of period of two months in the proviso to the section
145 (4) is for clothing the Magistrate with power to put the party
in possession who happened to be dispossessed wrongfully in two
month preceding the report of the police officer is received than by
virtue of deeming fiction of possession the same is to be restored
which is never final and is only for maintaining peace in the
society. Therefore the Session Judge erroneously insisted upon exact
knowledge on the part of the applicant of the date on which the
possession was alleged to have been taken by the opponents.
In
the instant case the evidence on record couple with admission of the
opponent for giving keys to the applicant for enabling him to show
the flat to potential buyers and lake of giving exact evidence as to
when he i.e. opponent getting into the flat after 4.12.2007 would
persuade the Court to hold that the opponent forced themselves into
the flat on or before 24th or 25th of April which version gets
support from the Electricity Consumption also.
The
Miscellaneous Civil Application No. 14516 of 2008 for producing
documents also needs to be allowed in view of the fact that they are
in the nature electricity bills etc.
Learned
Session Judge has in my view patently erred in allowing the
Revision therefore the order and judgment of Learned Session Judge
dated 17.06.2008 impugned in this petition is required to be quashed
and set aside which will have resultant effect of reviving the order
date 28.01.2008 and 11.03.2008 passed by the Executive Magistrate.
The
application is allowed. The order of Learned Session Judge dated
17.06.2008 is hereby quashed and set aside. The order dated
28.01.2008 and 11.03.2008 would stand revived and the applicant
would be entitled to possession of the premises being Flat No. 107
Vinay Complex Bharuch i.e. the Flat in question with the help of
concerned authorities. This pronouncement is not declaring final
rights over the property in question and parties shall have liberty
to avail their remedy under the law against each other.
In
the result, the opponent shall vacate the premises and handover
possession within thirty days (30 days) from today, failing which
the applicant/petitioner will be entitled to enforce recovery of
possession of the premises in question with the help of concerned
authorities, including the police authorities.
Registry
is directed to communicate this order to party-in-person as
expeditiously as possible.
[
S.R. BRAHMBHATT, J]
/vgn
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