Vijay Jagannath Indolikar vs The State Of Maharashtra & Anr
2017 Latest Caselaw 9601 Bom

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                                 WRIT PETITION NO.1755  OF 2002 
                        .

         Vijay Jagannath Indolikar
         745, Gaonbhag Baxi Road,
         Tatya Kelkar Wada,
         Sangli                                                       ..Petitioner

                        v/s.

         1. Maharashtra State

         2. Shri Mukund Anant Patankar
         3. Shri Gopal Anant Patankar
         4. Shri Anant Balkrishna Patankar
             (Expired)
         Nos. 2 to 4 R/o. 746, 
         Gaonbhag Baxi Road,
         Patankar Wada, Sangli

         5. Chief Officer,
         Sangli Miraj & Kupwad Corporation
         Water Works Dept., Sangli                           ..Respondents

         Mr.J.P.Kharge for the Petitioner.
         Mr. Akshay Deshmukh for the Respondent nos.2 to 4.
         Mr. G.H.Keluskar for the Respondent No.5.
         Mr. H.J.Dedhia, APP for the Respondent-State.
           
                                      CORAM :  SMT. ANUJA PRABHUDESSAI, J.

DATED : DECEMBER 14, 2017.

ORAL JUDGMENT.

1. The petitioner herein has challenged the Order dated 5.9.2001

whereby the learned Addl. Session Judge, Sangli, dismissed the

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Criminal Revision Application No.22 of 1996 and thus confirmed the

order passed by the Magistrate, dismissing the complaint under

Section 203 of Cr.P.C.

2. The brief facts necessary to decide this petition are as under.

The petitioner had filed a private complaint dated 9.2.1996

against the aforesaid respondent nos.2 to 4. The petitioner had

claimed that the respondent nos.2 to 4 had purchased the land

situated towards northern side of his property. The petitioner

further claimed that in the month of June 1991, the respondent nos.1

to 3 disconnected his water connection and caused him loss to the

tune of Rs. 3000/- to 4000/-. According to the petitioner the main

water connection was disconnected by the respondent no.5 at the

instance of the respondent nos.2 to 4. The petitioner further alleged

that the respondent had no right to construct a house or wall in the

said property, despite which in the month of June 1992 the

respondent nos.2 to 4 constructed a wall and thereby obstructed his

only access. The petitioner claimed that he had lodged a police

complaint against the respondents. Since the police did not take

action against the respondent, he lodged a private complaint against

the aforesaid respondent.

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3. The statement of the petitioner-complainant was recorded

under Section 200 of Cr.P.C. After considering the averments made

in the complaint, as well as the verification statement, the learned

Magistrate held that the dispute between the petitioner and the

respondent nos.2 to 4 is basically of civil nature. The learned

Magistrate therefore dismissed the complaint under Section 203 of

Cr.P.C.

4. Aggrieved by the said order, the petitioner filed a Revision

Application No.22 of 1996 before the Sessions Court at Sangli.

The learned Sessions Judge confirmed that the dispute is basically of

civil nature and that there were no significant grounds for proceeding

agianst the respondent nos.2 to respondent no.5. The learned

Sessions Judge held that the order of the Magistrate is neither illegal,

nor perverse and that there was no reason to interfere with the same.

Based on the aforesaid findings, the learned Sessions Judge dismissed

the revision application. Hence the present petition.

5. Mr. Kharge, learned Counsel for the petitioner has submitted

that the fact that the civil dispute is pending between the parties is

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no ground to dismiss the complaint under Section 203 of Cr.P.C. He

has further submitted that the petitioner-complainant had filed a list

of witnesses which he proposed to examine under Section 202 of

Cr.P.C. and that the learned Magistrate did not examine the said

witness. He has also submitted that though there was delay in filing

the complaint, the petitioner had filed an application for condoning

the delay and that the learned Magistrate has dismissed the

complaint without considering the said application.

6. Per contra, Mr.Deshmukh, learned Counsel for the respondent

nos.2 to 4 has submitted that the petitioner had earlier filed a civil

suit in respect of the same incident viz, construction of wall and

disconnection of water supply. He has submitted that the said suit

has been dismissed with costs. The learned Counsel for the

respondent has further submitted that even otherwise, the averments

made in the complaint vis-à-vis the verification statement do not

disclose the essential ingredients of the offences. He therefore

contends that the learned Magistrate was perfectly justified in

dismissing the complaint under Section 203 of Cr.P.C.

7. Mr.Keluskar, the learned Counsel for the respondent no.5 has

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deposed that the petitioner has sought to prosecute "the Chief

Officer" without disclosing the name of the said Officer.

Furthermore, there are no grounds to proceed against Respondent

no.5 and that he has been unnecessarily dragged in the litigation.

8. I have perused the record and considered the submissions

advanced by the learned Counsel for the petitioner, and the learned

counsel for the respective respondents. The gist of the complaint is

that the petitioner-complainant has been residing at 745 Gaonbhag

Baxi Road, Tatya Kelkar Wada since last 30 years. His father had

taken water connection and that the water pipelines were laid in

east-west direction to the extent of about 100 meters. The

respondent nos.2 to 4 are residing in the property towards the

northern side of the property no.746. They have purchased the said

property from one Janardhan G. Kelkar. The petitioner claims that in

the month of June 1996 the respondent nos.2 to 4 disconnected the

water connection and thereby caused loss to him to the tune of

Rs.3000/- to 4000/- and further in the month of June 1992 they

constructed a wall and obstructed his access. A vague statement has

also been made in para 5 of the complaint that the respondent nos. 2

to 4 had also disconnected his electricity connection.

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9. In the statement recorded under Section 200 of Cr.P.C. the

petitioner had reiterated that in the month of June 1991 the

respondent nos.1 to 4 had disconnected his water connection and

that in the year 1992 they had obstructed his access by constructing a

wall. Thus, the main allegation of the petitioner-complainant is that

Respondent nos.2 to 4 had committed offences punishable under

Section 426 and 341 of IPC.

10. At the outset, it may be mentioned that Section 468 Cr.P.C.

creates a bar for taking cognizance of an offence after the expiry of

the period of limitation specified under sub-section (2). The period

of limitation as specified in sub-section (2) is as under:-

(a) Six months, if the offence is punishable with fine only.

(b) One year, if the offence is punishable with imprisonment for a

term not exceeding one year.

(c) Three years, if the offence is punishable with imprisonment for

a term exceeding one year, but not exceeding three years.

11. The commencement of period of limitation is regulated by the

provisions of Section 469 Cr.P.C. The period of limitation would

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commence from different dates depending upon three situations

specified in clauses (a), (b) and (c) of Section 469 Cr.P.C. Whereas,

Section 470 and 461 relate to exclusion of time in certain cases.

12. In the instant case, the respondent nos.2 to 5 are alleged to

have committed mischief and wrongful restrain, which are offences

punishable under Section 426 and 341 of IPC. The offence under

Section 426 is punishable with a terms of imprisonment of three

months, whereas the offence under Section 341 IPC is punishable

with imprisonment for a term of one month. Since the offences

which are allegedly committed by the respondent nos.2 to 5 are

punishable with imprisonment for a maximum terms of three

months, the complaint was required to be filed within one year from

the date of the offence or from the date of knowledge of the offence,

or the date on which the identity of the offender was known. The

averments in the complaint indicate that the alleged offence of

mischief and wrongful restrain was committed in the month of June

1991 and June 1992 respectively. It is not the case of the

complainant that he was not aware about the commission of the said

offence or that the identity of the offence was not known to him.

Hence, the complaint was required to be filed within one year from

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the date of the offence. In the instant case, the petitioner has filed

the complaint in the year 1995 which is way beyond the period of

limitation prescribed under Section 468(2)(b) of Cr.P.C.

13. The learned Counsel for the petitioner has submitted that the

petitioner had filed an application for condonation of delay which

has not been considered by the learned Magistrate. Suffice to say

that there is no express provision in the Limitation Act which enables

the Magistrate to condone the delay in filing the complaint and/or

which permits him to take cognizance of the offence beyond the

period prescribed in sub-Section 2 of Section 468 of Cr.P.C.

14. Be that as it ma,. a perusal of the application which is placed

on record indicates that the petitioner had stated that the complaint

is filed under Section 341, 426, 427, 430 and 506 of IPC, and the

period of limitation for filing such complaint is of 3 years. It has to

be noted that the averments made in the complaint as well as the

verification statement , even if taken at face value, do not disclose

ingredients of the offence under Section 506 of IPC or that the matter

is any other offence which is punishable with a terms of

imprisonment exceeding one year. Hence, the contention of the

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petitioner that the limitation prescribed for taking cognizance of the

offence was of 3 years has no merits. The complaint was therefore

filed beyond the period of limitation prescribed under Section 468(2)

of Cr.P.C. and on this count alone the same was liable to be rejected.

15. The learned Counsel for the respondent nos.2 to 4 has placed

on record copies of the judgments in Regular Civil Suit No.528 of

1990 and 814 of 2000 (Old Special Suit No. 250/1995). A perusal

of the judgment in Regular Civil Suit No. 528 of 1990 reveals that the

petitioner had filed the said suit alleging that the respondents had

obstructed his access on 4.9.1990. These averments falsify the

contention of the petitioner that the access was obstructed in the

month of June 1992.

16. Similarly, Special Civil Suit No. 814 of 2000 reveals that the

complainant had alleged that the water connection was disconnected

in the month of August 1993 and that even prior to that the

respondent nos.2 to 4 had interrupted the water supply. The

petitioner had therefore sought relief of injunction to restrain the

respondents from preventing the petitioner from taking water supply.

Both the civil suits have been dismissed by judgment dated 7.6.2012

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and 19.3.2013. Having lost the civil litigation in the first round, the

petitioner cannot be permitted to agitate the same in the criminal

court. Considering the above facts and circumstances, the learned

Magistrate was justified in dismissing the complaint.

17. It is also pertinent to note that the petitioner-complainant has

arrayed the respondent no.5, Chief Officer, Sangli Miraj & Kupwad

Corporation, Water Works Department, as accused no.4 without

disclosing the name of the said Chief Officer. Even otherwise, the

complaint does not indicate that the Chief Officer had committed any

offence as alleged, despite which the petitioner-complainant has

unnecessarily dragged the respondent no.5 into this litigation.

18. The contention of the learned Counsel for the petitioner that

the learned Magistrate ought to have conducted inquiry under

Section 202 of Cr.P.C. has absolutely no merits. There is nothing on

record to indicate that the witnesses whose names were cited in the

list annexed to the complaint were present on the date the statement

of the complainant was recorded under Section 200 of Cr.P.c. Hence,

it was not obligatory on the part of the Magistrate to postpone the

issuance of process and/or to order inquiry under Section 202 of

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Cr.P.C.

19. Having perused the records, I am of the considered view that

the complaint as well as the verification statement does not disclose

the essential ingredients of the alleged offence. Hence, the learned

Magistrate as well as the learned Sessions Judge were perfectly

justified in dismissing the complaint under Section 203 of Cr.P.C.

20. At this stage, the learned Counsel for the respondent no.5 has

submitted that pursuant to the Order dated 20.4.2017 passed by this

Court (Coram Sadhana Jadhav, J.) the respondent no.5 has given

water connection to the petitioner. He has further submitted that the

petitioner has refused to acknowledge that the respondent no.5 had

complied with the order. Hence, the employees of the respondent

no.5 had prepared a panchanama and also taken photographs. The

respondent no.5 has also stated that the petitioner is liable to pay an

amount of Rs.3766/- towards costs of water connection as well as the

outstanding arrears along with interest to the tune of Rs.38,497/-.

The learned Counsel for the Respondent no.5 submits that the

petitioner has not paid the said amount till this date.

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21. Needless to state that in this petition filed by the petitioner-

complainant this Court can not pass any order in favour of the

respondent no.5. The respondent no.5 is always at liberty to take

appropriate action in accordance with law.

22. In the light of the above, the petition stands dismissed.

(ANUJA PRABHUDESSAI, J.)