M/S Syed Amin Choudhary vs State & Ors.
2009 Latest Caselaw 3460 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
+                Crl. M.C. No. 1064/2006

%                                   Judgment delivered on: 31.08.2009

M/s Syed Amin Choudhary                     ...... Petitioner
                   Through: Mr. Bahar U. Barqui, Advocate

                          versus

State & ors.                               ..... Respondent

                               Through:     Mr. Rakesh Kumar with Mr.
                               Santosh Kumar for R-2.
                               Mr. O.P. Saxena, Addl. Standing Counsel
                               for the State.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                                  No

2.     To be referred to Reporter or not?                               No

3.     Whether the judgment should be reported
       in the Digest?                                                   No

KAILASH GAMBHIR, J. (Oral)

*

1. By this petition filed under Section 482 Cr.P.C. read

with Article 227 of the Constitution of India the petitioner seeks

quashing of complaint dated 12th December, 2005 filed by

respondent No.2 under Section 200 Cr.P.C. read with Section

406/409/447/448 IPC. The facts as set out by the petitioner and

relevant for deciding the present petition are as under:-

2. The petitioner is a tenant of respondent No. 2 in respect of

the residential premises bearing property No. 15, First Floor, Siri

Fort Road, New Delhi @ Rs. 10,000/- per month which was to be

adjusted against the amount of Rs. 5,00,000/- alleged to have

been spent by the petitioner so as to make the dilapidated

premises of respondent No. 2 into habitable conditions.

Respondent No. 2 filed a civil suit bearing case No. 174/2005

against the petitioner seeking eviction, possession and recovery

of Rs. 7,00,000/- as damages on the alleged ground of

unauthorized occupation of the petitioner in the said premises

bearing property No. 15, First Floor, Siri Fort Road, New Delhi and

on account of depreciation, misuse and mesne profits. The

petitioner filed his written statement and also raised his counter

claim against the said claim of the respondent No. 2. Respondent

No. 2 filed replication to the written statement and the counter

claim. During the pendency of the civil proceedings, respondent

No. 2 filed a complaint under Section 200 Cr.P.C. read with

Sections 406/409/447/448 IPC dated 12th December, 2005 before

the Metropolitan Magistrate. Taking cognizance of the said

complaint the Ld. M.M. summoned the petitioner. Feeling

aggrieved from the order of summoning the petitioner has

preferred the present petition.

3. Mr. Bahar U. Barqui, counsel appearing for the

petitioner contends that the petitioner had been inducted as a

tenant by respondent No. 2 in respect of the residential premises

bearing property No. 15, Siri Fort Road, New Delhi @ Rs. 10,000/-

per month. According to the civil proceedings the Hon'ble

Supreme Court filed by respondent No. 2 the petitioner handed

over the said property to respondent No. 2. Counsel for petitioner

also submits that the petitioner has in addition also paid the

damages for use and occupation of the said premises @ Rs.

10,000/- per month. Counsel further submits that a bare perusal

of the averments made in the complaint would establish that no

offence against the petitioner is made out either, under Section

406 or S. 448 IPC. Contention of counsel for the petitioner is that

as respondent No. 2 has already accepted the charges @ Rs.

10,000/- from the petitioner, therefore, respondent No. 2 has

recognized the possession of the petitioner in the said premises

as a legal and valid one. Counsel also submits that respondent

No. 2 in the said complaint has alleged the grabbing of the said

property by the petitioner and the said allegation of grabbing of

the said property will not constitute an act of criminal breach of

trust. Contention of the counsel for the petitioner is that once the

possession of the petitioner was recognized by respondent No. 2

in the said residential premises then it does not lie in the mouth

of respondent No. 2 to impute breach of trust against the

petitioner. Counsel, therefore, urges that the ingredients of

Section 406 are not satisfied in the facts of the present case.

4. Refuting the said submissions of counsel for the

petitioner, counsel appearing for the respondent submits that

respondent No. 2 is the owner of premises bearing property No.

15, Siri Fort Road, New Delhi, but the said property was never

occupied by respondent No. 2 due to the construction of the said

premises by the builder in violation of Building Bye Laws. Counsel

thus states that the said property was lying vacant and the

petitioner was given the permission at his request to use the said

address of the premises merely for the purpose of his business

but, betraying the trust and his understanding with the

respondent No.2 the petitioner shifted to the said property along

with his family members and started using the same for the

residential purposes. Counsel for respondent No. 2 thus submits

that the petitioner had trespassed into the said property and also

breached the trust as was imposed upon him. Counsel thus

states that offence under Sections 406 and 448 IPC are clearly

made out on the face of the averments in the complaint.

5. I have heard learned counsel for the parties at

considerable length.

6. It is a settled legal position that power under Section

482 should be exercised sparingly in rare cases and that too with

circumspection. No doubt that the powers exercised by this court

under Section 482 Cr.P.C. are very wide but the very fact of the

plenitude of such wide powers itself cautions the Court to

exercise the same in a case where there is apparent miscarriage

of justice. Many disputed question of facts have been raised by

the petitioner and the same cannot be gone into by this Court

while exercising the jurisdiction under Section 482 Cr.P.C. Such

disputed question of facts can only be gone into by the Trial

Court during the trial.

7. Contention of counsel for the petitioner that a bare

perusal of the complaint would disclose that no offence is made

out is far from satisfactory. Reading of paras 7,8,9,10,11 and 12

prima facie disclose that the complainant has laid down the

foundation for the commission of offence under Section 406 and

S. 448 IPC. Relevant paras are reproduced as under:-

7. That the Defendant, taking advantage of the benevolence and the trust won over the complainant, successfully persuaded the complainant by his consistent urges, requests and beseeching to allow him to use the address of the premises above named on the pretext that he needed a prestigious address to get renewal of his export license for manpower as his two bedrooms DDA flat at Mayur Vihar (which the Accused sold away after unlawfully occupying the suit premises as his intention was malafide) address was too humble a location for the said purpose.

8. That on persistent pestering and beseeching of the defendant, the complainant agreed to allow the accused touse the prestigious address of Premisis bearing No. 15, Siri Fort Road, (First Floor) New Delhi. The said permission was merely temporary and transitory and without any consideration and out of sheer compassion. Simultaneously the complainant as a matter of caution executed a caretakers/choukidar/darban Affidavit, which was counter signed by the defendant. The same was duly submitted in the office of the MCD so the accused cannot misuse the permission to use the address of the premises as granted by the complainant.

9. That at the time of grant of said permission, it was made clear to the accused that the above said permission is only temporary liable to be withdrawn unilaterally and also that the accused will use the said premises for purpose of address only and will not use the same as residence or for any other purpose. But to the utter surprise of the complainant, the accused taking benefit of the facts that the complainant ordinarily resides in an Ashram in Haridwar and he is an octogenarian, the accused shifted to the suit premises with his family members and started using the same for residential purpose and thus grabbed. The complainant failing to persuade the accused to vacate the premises despite repeated efforts, served him legal notice dated 8.7.2005 through his counsel seeking the vacation of the premises forthwith or in any case without a period of 15 days from service of the legal notice as he is in illegal occupation of the premises and as he has no authority to use the suit premises for any purpose other than for address and even that permission has been withdrawn vide above said legal notice. The accused till date has not vacated the premises and he is in illegal and unlawful occupation of the same without any right or authority.

10. That to utter shamelessness and ingratitude, the accused in reply dated 20.8.2005 sent by him through his advocate in response to the legal notice date 8.7.2005 made frivolous and malicious claim that he is a tenant in the premises since year 2002 at a monthly rent of Rs.10,000/- per month for residential and commercial purposes and he has spent more

than Rs.5 lacs (Rupees five lacs) for renovation and furnishing of the premises in question and claimed entitlement to occupy the premises for 405 years. Such reply to the notice of vacation is not only absurd but malicious in nature as well as the story of spending Rs.5 lacs (Rupees Five Lacs) upon new and unoccupied premises that too without any authority is concocted and afterthought with malicious intention to create false defense.

11. The complaint receiving reply to the legal notice dated 08.07.2005 came to know the malice of the accused and his malafide design to grab the suit property consequently the complainant on 24.10.2005 made complaint to the SHO P.S. Defence Colony and the Commissioner of Police Delhi for taking cognizance of offences of criminal breach of trust and criminal trespass etc. committed by the accused.

12. That the accused first won the trust of the complainant under a mischievous design to grab his property and thereafter grabbed the same; thus has committed criminal breach of trust. The accused has also committed offence of criminal trespass as he entered into the house property of the complainant without any authority and did not vacate the same despite demand notice seeking vacation of the premises and instead has made malicious claims. The accused is committing continuing offence of criminal trespass as he is occupying the premises of complainant forcefully and without any right and authority."

The case of the respondent/complainant in the said

complaint is that the petitioner had taken the advantage of

benevolence and trust of the complainant to win over him, for the

purposes of allowing him to use the said address of the premises

to get renewal of his export licence but afterwards the petitioner

betrayed the said trust and shifted to the said premises with his

family to use the same for residential purposes. I, therefore, do

not find any substance in the argument of counsel for the

petitioner that no offence is made out on bare perusal of the

averments made in the complaint. So far the contention of the

counsel for the petitioner is concerned, that he had been paying

a sum of Rs. 10,000/- towards use and occupation of charges the

same in itself would not mean that he did not betray the trust of

the respondent. In any case, without expressing any view on the

merits of the case the questions raised by the petitioner can only

be gone into trial. There is no merit in the writ petition. The same

is hereby dismissed.

August       31, 2009                      KAILASH GAMBHIR, J.
rkr