4 Whether This Case Involves A ... vs Jayendra Nandlal Shah &

1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?

law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ JAYESH J DAVE & 2....Applicant(s) Versus JAYENDRA NANDLAL SHAH & 1....Respondent(s) ================================================================ Appearance:

MR PRABHAV A MEHTA, ADVOCATE for the Applicant(s) No. 1 - 3 MR. ALKESH N SHAH, ADVOCATE for the Applicant(s) No. 1 - 2 M/S S G ASSOCIATES, ADVOCATE for the Respondent(s) No. 1 MR LB DABHI, APP for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/04/2015 CAV JUDGMENT Page 1 of 8 R/SCR.A/390/2011 CAV JUDGMENT

1. Rule. Mr. Dabhi, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent no.2. Mr. Gondaliya, the learned advocate waives service of notice of rule for and on bahalf of the respondent No.1­the original first informant.

2. By this writ­application under Article 226 of the Constitution of India, the applicants­original accused seek to invoke the inherent powers of this Court praying for quashing of the FIR dated 15.02.2011 registered with the C.R. No.I­65 of 2011 with the J.P. Road Police Station, Vadodara for the offence punishable under Sections­341, 447 r/w. 114 of the I.P.C.

3. The case of the respondent no.1­original first informant may be summarized as under:­ 3.1 According to the first informant, he purchased a property being four shops bearing Unit Nos.C­3, C­4, C­5 and C­6, in the Indraprashth Complex, Vadodara from the applicants herein, who are engaged in the business of construction by way of sale­deeds dated 10.09.2009. It is his case that on the date of the incident, the accused persons came in the morning at the premises and introduced themselves as Officers of the Income Tax Department before the Peon of the first informant, who was present at the relevant point of time. It is alleged that the accused persons informed the Peon that they had come for a search of the Office. The Peon got frightened and the keys of the shops were forcibly taken away by the applicants from the Peon and some files were also stagged in the Office with a view to show that the applicants were in actual possession of the premises.

3.2 It is the case of the first informant that although he is the owner of the premises and sale­deeds have been executed in his favour and was in Page 2 of 8 R/SCR.A/390/2011 CAV JUDGMENT possession of the premises, yet, the applicants took over the possession of the premises forcibly and thereby, they committed the offence of criminal trespass and wrongful restraint.

4. Mr. Prabhav Mehta, the learned advocate appearing on behalf of the applicants submitted that his clients are in the business of construction running in the name of "Anjali Construction". He submitted that his clients viz. 'Anjali Construction" executed sale­deeds dated 10.09.2009 in favour of the first informant with regard to the four shops. The applicant no.1 as HUF alongwith the others are the confirming parties to the said sale­deeds. He submitted that the total consideration was fixed at Rs.1 Crore and four separate sale­deeds were executed between the parties. Mr. Mehta, submitted that the first informant has made payment of Rs.55 lac. The balance amount i.e.Rs.45 lac is still due and payable by the first informant to the applicants. He further submitted that one of the Clauses of the sale­deed provides that as and when, the name of the society would be entered in the property card of the scheme then, the purchaser will have to make the balance payment of amount of Rs.45 lac. He also pointed out that one of the clauses also stipulates that the possession of the said C­3, C­4, C­5, C­6 is with the sellers and not with the first informant as the purchaser. It is only on the payment of balance amount of Rs.45 lac that the possession would be handed over to the first informant.

5. Mr. Mehta pointed out that in the year 2010, on the request made by the first informant, the possession of only Shop No.C­5 was handed over to the first informant on personal grounds.

6. Mr. Mehta pointed out that his clients learnt that the first informant was trying to unauthorizedly take over the possession of the other three shops and therefore, his clients were constrained to file a Page 3 of 8 R/SCR.A/390/2011 CAV JUDGMENT Regular Civil Suit No.22 of 2011 on 06.01.2011 in the Court of the learned Additional Senior Civil Judge, Vadodara for injunction restraining the first informant from disturbing the possession of the applicants.

7. Mr. Mehta also pointed out that in the said suit the Exh.5 application for interim injunction was filed, which was allowed vide order dated 06.01.2011. He also pointed out that pursuant to the order passed by the Civil Court, a commission was also appointed and the commission report also indicates that the applicants were in the possession of the shops.

8. He, therefore, submits that a pure civil dispute is sought to be given colour of a criminal offence. He submits that the continuation of the investigation would be nothing but an abuse of the process of law. He submits that the proceedings deserve to be quashed.

9. On the other hand, this application has been vehemently opposed by Mr. Gondaliya, the learned advocate appearing on behalf of the first informant. He submitted that the applicants in a very highhanded manner forcibly took over the possession of the premises from the first informant. He submitted that assuming for the moment that the balance amount is yet to be paid to the applicants, yet, the fact remains that the first informant was in actual possession of the premises and the applicants could not have been taken over the possession forcibly. He submits that the applicants could be said to have committed criminal trespass and also, an offence of wrongful restraint. He submits that there is more than a prima­facie case against the applicants and therefore, this application deserves to be rejected.

10. The learned APP Mr. L.B. Dabhi submitted that the criminal Page 4 of 8 R/SCR.A/390/2011 CAV JUDGMENT proceedings may not be quashed as there is a prima­facie case against the applicants.

11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is ­ whether the proceedings against the applicants should be quashed.

Indisputably, there are sale­deeds in favour of the first informant. The sale­deeds are suggestive of the fact that in all an amount of Rs.1 Crore had to be paid by the first informant towards the sale­ consideration and out of the same, Rs.45 lac was still due and payable on the date of the registration of the FIR.

12. The dispute is in a very narrow­compass. The applicants claim that they are the owners of the premises as the balance amount is yet not paid and one of the clauses in the sale­deed makes it very clear regarding the same. On the other hand, the first informant claims that being an absolute owner of the property and being in possession of the same, the applicants could not have forcibly dispossessed him from the premises.

13. There is a civil suit also pending between the parties and it appears that below Exh.5, an order has been passed in favour of the applicants.

14. In my view, even if the entire case of the prosecution is accepted to be true, none of the ingredients to constitute the offence of criminal trespass and wrongful restraint are spelt out. Section 441 of the IPC reads thus:­

441. Criminal trespass.­ Whoever enters into or upon property in the Page 5 of 8 R/SCR.A/390/2011 CAV JUDGMENT 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".

15. The charging section for the offence of criminal trespass is Section­447. To constitute the offence of trespass, it is necessary to show prima­facie that the person entered into or upon property in the possession of the another. Thus, "Possession" envisaged in Section­441 of the IPC, is physical and not merely constructive possession, as the act intended to be done which makes 'criminal trespass' must be done to the person in possession and on the property. In order to establish that the entry of the accused on the complainant's property was with the intent to annoy, intimidate or insult within the meaning of Section­441 and Section 447 of the IPC, it is necessary to show prima­facie that causing said annoyance, intimidation or insult was the aim of the entry. It is not sufficient to show merely that the natural consequences of the entry was likely to be annoyance, intimidation, etc., Even for the time being, if the case of the first informant is accepted to be true, still there is nothing to prima­faie show that the entry in the premises was with the intention to intimidate, insult or annoy. At the best, it can be said that the applicants being the sellers of the property and yet to recover the full price of the same, wanted to take over the possession of the premises. That would not ultimately suggest that the same was with the intention to annoy, insult or intimidate.

16. Once again at the cost of repetition, I state in order to satisfy the conditions of Section 441, IPC it must be established that the person entered in possession over the premises with intent to commit an offence. Mere occupation even if illegal cannot amount to criminal trespass, as held by the Hon'ble Supreme Court in Smt. Kanwal Sood V.

Nawal Kishore, AIR 1983 SC 159: (1983 CriLJ 173). I quote Para­10 of the decision of the Hon'ble Supreme Court:­ "10......In order to satisfy the conditions of Section 441, IPC it must be established that the appellant entered in possession over the premises with intent to commit an offence. A bare perusal of the complaint filed by respondent No.1 makes it abundantly clear that there is absolutely no allegation about the intention of the appellant to commit any offence or to intimidate, insult or annoy any person in possession, as will be evident from three material paragraphs which are quoted below:"

17. As observed earlier that there is a civil suit also pending between the parties and ultimately, the civil rights of the parties would be adjudicated by the civil Court.

18. So far as the offence of wrongful constraint is concerned, I am of the view that the same has to be physical. There are no allegations worth the name in the entire FIR that there was any physical restraint of the Peon, who is said to be present at the time when the possession is alleged to have been taken over.

19. I may quote with profit a decision of the Hon'ble Supreme Court in the case of Keki Hormusji Gharda and Ors. Vs. Mehervan Rustom Irani & Anr. Reported in 2009 Cri.LJ 3733:­ "12. Section 341 of the IPC provides that whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. The word 'voluntary' is significant. It connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction."

20. In the overall view of the matter, I am not convinced with the case set up by the first informant. In my view, the continuation of the Page 7 of 8 R/SCR.A/390/2011 CAV JUDGMENT investigation by police will be nothing but an abuse of the process of law.

21. In the result, this application is allowed. The FIR being C.R. No.I­ 65 of 2011 registered with the J.P. Road Police Station, Vadodara, is hereby ordered to be quashed. Rule is made absolute. Direct service is permitted.

(J.B.PARDIWALA, J.) aruna Page 8 of 8