- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.355 OF 2007 WRIT PETITION NO.355 OF 2007 WRIT PETITION NO.355 OF 2007 Sadafulli Finvest Pvt.Ltd. ...Petitioner vs. Sushila Geraldine Fonseca & others ...Respondents Mr.R.R.Bhonsale for the petitioner Mr.Subodh Desai for Respondent Nos.1 to 3 Mr.Y.M.Nakhawa A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 30,2008 : AUGUST 30,2008 : AUGUST 30,2008 P.C.: P.C.: P.C.: 1. The submissions of the learned senior counsel for the petitioner were heard yesterday. The petitioner is the complainant in a private complaint filed alleging commission of offences under section 341, 447, 504, 506 r/w 34, 107 and 511 of the Indian Penal Code (hereinafter referred to as the said Code) against the Respondent Nos.1 to 3 herein. On the said complaint filed by the petitioner, the learned Magistrate passed an order issuing process against Respondent Nos.1 to 3 for offences under section 341, 447, 504, 506 r/w 34 r/w 107, r/w 511 of the said Code. A revision application was preferred by the Respondent Nos.1 to 3. By the impugned Judgment and order dated 13th November 2006 to 16th November 2006, the learned Additional Sessions Judge allowed the revision application and has set aside the order issuing process. - 2 - 2. With a view to appreciate the submissions made by the learned senior counsel for the petitioners, it will be necessary to refer the facts of the case in brief. 3. The third respondent herein is a public charitable trust which claims to be the owner of the property bearing new CTS C 963 to C 960 situated at Bandra (W), Bombay. The said property was let out by the said trust to one Mr.Naval J. Ardeshir by a lease dated 1st August 1968. An agreement was executed on 15th May 1981 by the trust in favour of the M/s.Suraj Properties Private Limited allowing the said developer to develop the property. There was an agreement dated 31st October 1981 executed by and between M/s.Suraj Properties Pvt.Ltd. and the said N.L.Ardeshir by which the said tenant agreed to vacate the property in lieu of grant of a newly constructed structure admeasuring 8000 sq. ft. on ownership basis. According to the case of the petitioner, after obtaining the permission of the Charity Commissioner, a conveyance was executed by the trust on 25th October 1985 in favour of the Chief Promoter of M/s.Maria Suraj Co-operative Housing Ltd. It is alleged that conveyance could be registered only in the year 2003 after the deficit stamp duty was paid. It is alleged that the City Survey Officer refused to delete the name of the trustees of the third respondent-trust. In an Appeal preferred before the Appellate Authority the name of the trust and trustees was ordered to be - 3 - deleted from in the city survey record. The allegation is that though the trust is no longer the owner of the property, a public notice had been published by the trustees of the third respondent-the trust calling for the offers for sale of property admeasuring 719 sq. meters bearing CTS C 960 (A-Part), C/961, C/962, C/963 together with a house known as ‘Salisbury House’. By the said public notice, the trustees invited the prospective buyers for inspecting the same. It is stated that a reply was published by the said society as well as by the petitioner to the said notice in the same newspaper. 4. In the complaint there is a reference to the various civil proceedings between the parties. Civil proceedings are in the nature of the the suit filed by the petitioner and the said society as well as the suit filed in this court by the trust and the trustees. 5. The allegation in the complaint is that the first to third respondents were instigating the prospective buyers to commit offence of criminal trespass on the said property as by the aforesaid public notice, the trust invited the prospective buyers to visit the property and to inspect the same. It is alleged that first to third respondents were trying to create hindrances in carrying out the amendment to the property card. It is alleged that the accused have committed various criminal acts in furtherance of common intention. It is stated in the - 4 - complaint that the accused by putting the petitioner in fear of injury to its reputation and property claiming the same to be theirs and are illegally trying to interfere with the rights of the petitioner. Reference is made to various complaints filed with the police station. The allegation is that the trust along with its associates tried to forcibly enter the premises of the petitioner. 6. The learned senior counsel for the petitioner has invited my attention to the averments made in the complaint and various documents produced along with the complaint. He pointed out that at least on four occasions i.e. on 8th January 2003, 23rd April 2003, 16th June 2005 and 27th December 2004 written complaints have been filed by the petitioners against the Respondent Nos.1 to 3 of their illegal activities. He submitted that the averments made in the complaint were sufficient to proceed against the accused for the offences for which the process was issued by the learned Magistrate. Inviting my attention to the public notice dated 28th April 2005 published by the trust, he submitted that though the trustees were aware that the trust was not in possession of the property, the prospective buyers were invited to visit the property with an intention of causing annoyance to the petitioner. He submitted that the revisional court has committed a gross error by interfering with the order issuing process. - 5 - 7. I have carefully considered the submissions. Perusal of the averments made in the complaint shows that essentially the petitioner is contending that the property was no longer vesting in the trust in view of certain documents and in particular the conveyance executed by the trust. This petition itself disclose that the trustees have filed a suit in this court and the petitioner and the society have filed a suit in the City Civil Court in respect of the same property. The dispute in the said suits is as regards the title claimed by the rival parties to the suit property. As narrated earlier, though various offences were alleged in the complaint, the process was issued only for offence under section 341, 447, 507, 506 r/w 34 and 511. Criminal trespass as contemplated by section 441 of the Indian Penal Code was alleged. The learned Senior Counsel for the petitioner tried to substantiate the case of commission of the said offence by inviting my attention to the public notice by which the offers were purportedly invited by the said trust for sale of the property. In the notice there is a recital that the prospective buyers may visit the property and inspect the same at their own cost. The contention of the petitioner was that this itself shows intention on the part of the accused of causing ing annoyance to the petitioner who is in possession of the property. It must be stated here that the said advertisement relates only to a part of the property. As - 6 - pointed out earlier, there are civil suits pending. Both the parties have asserted the title to the property and thus there is a pending dispute in the civil court as regards the title. Going by the allegations made in the complaint, it is very difficult to accept that an attempt was made by the accused to enter the possession of the property with an intention of committing an offence or to intimidate or annoy the petitioner in possession of the property. 8. It will be also necessary to consider section 503 of the Indian Penal code. On plain reading of the complaint, it is not possible to accept that a case was made out that the trustees had threatened the petitioner with any injury to person, reputation or property. The trust and the trustees claimed title to the property and they attempted to sale the property by publishing a public notice. As far as the allegations in the complaint regarding obstruction to the alleged possession of the petitioner is concerned, the same are very vague as rightly observed by the learned Additional Sessions Judge. In this context, the learned Additional Sessions Judge has also considered the allegations of the commission of offence under section 341 of the Indian Penal Code. Even taking the complaint for its face value, it is not possible to accept that the case of wrongful restraint or obstruction at the hands of the trustees of a public trust which is registered under the Bombay Public Trust Act,1950 has - 7 - been made out. The learned Additional Sessions Judge has observed that a public charitable trust is not a natural person. It is, therefore, stated in the impugned order that it is not possible to allege existence of mens rea or intention to commit any of the above offences against the trust. 9. Thus, it seems that there is essentially a civil dispute between the parties over the title to the property. 10. By the present petition, the petitioner has invoked Article 227 of the Constitution of India and section 482 of the Code of Criminal Procedure,1973. In a petition under Article 227 of the Constitution of India, the scope for interference is very limited. It is well settled that in so far as power under section 482 of the said Code is concerned, the same has to be exercised sparingly and in very rare cases. Considering the averments made in the complaint and what is held by the Additional Sessions Judge, no case is made out for interference. Accordingly, petition is rejected. 11. It is made clear that nothing stated in this order shall be construed as any finding on the dispute relating to the title to the property in dispute. - 8 - JUDGE JUDGE JUDGE