IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7960 OF 2016 BETWEEN:
1. SATISH MENON PRESIDENT, AQUILA HEIGHTS APARTMENT OWNERS ASSN., R/A 31C & D, POLARIS, AQUILA HEIGHTS HMT WATCH FACTORY ROAD, JALAHALLI BANGALORE – 560 013.
2. PUSHPA MANAGER, AQUILA HEIGHTS APARTMENT OWNERS ASSN., R/A NO.110, RAJANNA BUILDING WATER TANK ROAD BANGALORE – 560 013.
(BY SRI SYED AQDUS, ADVOCATE) AND:
1. STATE OF KARNATAKA BY JALAHALLI P.S. REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BANGALORE – 560 001.
…PETITIONERS 2. SUBBARAMAIAH R/AT NO.54, 3RD CROSS, 2ND MAIN DENA BANK COLONY GANGANAGAR BANGALORE – 560 032.
... RESPONDENTS (BY SRI I.S.PRAMOD CHANDRA, SPP-II FOR R1; SRI PRABHAKAR L.SHETTY, ADV., FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR AS AGAINST THE PETITIONERS IN THE COURT BELOW, IN CR.NO.36/2016 OF JALAHALLI P.S., PENDING ON THE FILE OF VII A.C.M.M., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner No.1 is the President and Petitioner No.2 is the Manager of Aquila Heights Apartment Owners Association. Respondent No.2 is one of the owners of an Apartment situate in the said condominium.
2. Based on the complaint filed by respondent No.2, FIR is registered under Sections 341 and 504 read with Section 34 of IPC.
3. Learned counsel for the petitioners at the outset submits that the allegations made in the complaint do not make out the ingredients of the offences alleged against the petitioners. According to the complainant, his workers were prevented from entering into the apartment complex. The said act even if it is accepted as true does not amount to unlawful restraint within the meaning of Section 341 of IPC. Further, no allegations are forthcoming in the entire complaint attracting the charge under Section 504 of IPC. Hence, the prosecution of the petitioners for the above offences is illegal and an abuse of process of Court.
4. Refuting the contentions, learned counsel for the 2nd respondent submits that the allegation made against the petitioners squarely attract the offences under Sections 341 and 504 of IPC. The specific instances narrated in the complaint clearly disclose that with an intention to restrain the complainant and his men, the above acts were committed by the petitioners and even after filing the complaint, the harassment is being continued and hence, there is no reason to quash the proceedings.
5. I have considered the submission and perused the records.
6. From the reading of the complaint, it is clear that the complainant was not an eye witness to the incident. According to the complainant his workers were restrained from entering into the Apartment. Undisputedly, the petitioners herein are the office bearers of the Association. Needless to say that Association is run according to the bye-laws of the Association and not according to the whims and fancies of the Apartment owners. There is no mention in the complaint that the second respondent had intimated the petitioners namely, the office bearers of the Association that his workers would be coming over to the Apartment to move the goods.
In the absence of such prior intimation the petitioners were well within their rights to restrain the outsiders from entering into the Apartment. The said act of the office bearers of the Association in my considered opinion, does not amount to criminal offence, much less, an offence under Section 341 of IPC. More over, there is nothing in the complaint to indicate that the workers of the complainant were unlawfully restrained by the petitioners. The allegations made in the complaint do not disclose the commission of the offence under Section 341 of IPC.
7. Insofar as the offence under Section 504 of IPC is concerned, the complaint does not contain any allegation of abuse or threats either to the complainant or to his workmen. On the other hand, the dispute between the Association and the complainant appears to be with regard to the payment of the maintenance to the Association in respect of which a civil suit is pending in O.S.No.5475/2017. As the material on record does not prima facie disclose the commission of offences under Sections 341 and 504 of IPC, the proceedings are liable to be quashed. Accordingly, the petition is allowed. The proceedings pending on the file of VII Additional Chief Metropolitan Magistrate, Bangalore, in Crime No.36/2016 are quashed.
Any observation made in this order shall not affect the rights of the parties in any manner in the pending suit in O.S.No.5475/2017.
Sd/- JUDGE VMB