1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1595 OF 2009 Mr. Ramesh R. Narang .. .. Applicant V/s. The State of Maharashtra & Anr. .. .. Respondents --- S/Shri Akhil Sibal a/w M.K. Kocharekar and Ms. Sonal Parab i/by M/s. Rajeev Sawant and Associates for the Applicant. Shri P.S. Hingorani, APP for the Respondent No.1. S/Shri Shirish Gupte i/by Gaurav Belosay & Rohit Mahadik for the Respondent No. 2. --- CORAM : J.H. BHATIA, J. DATE : 21ST MARCH, 2011 P.C. : 1 Heard learned counsel for the parties. 2 The applicant/petitioner before this court is an accused in FIR No. 100/2009, registered on 11.03.2009 for the offence punishable under section 323, 380, 506 of the Indian Penal Code on the basis of the report lodged by the respondent no.2. 3 Respondent No.2, the complainant, is father and the accused/applicant is his son. It appears that the complainant had two wives and from each wife he has three children. The family holds huge property and it is registered as Narang International Hotels Private Limited of which the complainant is the Chairman and Managing Director. The applicant -accused is Joint Managing Director and his 2 brother Rajesh is the whole time Director. It appears that a dispute is going on between the father and son for a long time in one or the other form. The complainant is residing with his children from second wife; while the present applicant and his brother - Rajesh are from his first wife. It appears that contempt actions were taken by the Supreme Court against the complainant as well as the accused at different times in connection with the breach of the orders passed by the court from time to time and therefore, the relations between the two are strained. It also appears that a settlement had taken place and as result of the same, a resolution was passed in the meeting of the Board of Directors on 31st December, 2001. The company holds a residential building situated at Pali Hill and as per the settlement, the accused was to reside on the second floor and the complainant was to reside on the first floor and Rajesh was to be accommodated elsewhere. The learned counsel for the parties inform that he has been accommodated in the annex building in the residential campus. As per the terms and conditions of the settlement, each of the three were to get certain remuneration and perquisite and as a part of the said remuneration and perks each of them was to get well furnished company house for residence. 4 On 11.03.2009 the complainant lodged a report with Sahar Police Station alleging that on 09.03.2009 at 12.30 hours when he was going down to the ground floor of the residential building for performing Pooja, he noticed that the accused was removing certain door and other furnitures and articles from the ground floor by some vehicle. As per the report when he objected, the accused threatened him and also asked him to do whatever he likes. When other two 3 sons of the complainant, who were living with him, came down and tried to intervene, the accused assaulted and threatened to kill them. Even though that incident had occurred on 09.03.2009, the FIR was lodged two days after the incident on 11.03.2009 and the offence was registered. Investigation is in progress. Learned APP makes a statement that investigation has been completed but the charge-sheet is not filed, as this matter was pending before the court for last two years and as the dispute is between father and son, the police are awaiting the result of this application. 5 The learned counsel for the applicant points out that even though in the FIR it is noted that the properties which the accused had removed were personal properties of the complainant, according to him they were not personal properties and all these properties are of the company and the complainant was not in possession of the ground floor, where the property was kept. According to him the property was removed from the ground floor of the residential building belonging to the company to the Ambassador Sky Chef situate at Sahar, Mumbai which is also the company premises. Therefore, he shifted certain properties from one premises to the another premises of the company and therefore, he had no dis-honest intention nor the said property was removed from the possession of the complainant. The learned counsel for the accused also pointed out that at the time of removing the property from the residential building to the company premises at Ambassador Sky Chef, the gate passes were prepared wherein each item of furniture, which was being shifted, was noted down and in the gate pass it is clearly mentioned that these articles of the company were being shifted to 4 Ambassador Sky Chef at Sahar, which is admittedly the company premises. 6 On the other hand the learned counsel for the complainant contended that the accused has no legal right to remove the movable properties belonging to the company from the said building. The learned counsel also contended that the accused had committed an offence under section 323 and 506 of the IPC and therefore, the police have rightly registered and investigated the offence under section 323, 506 and 380 of the IPC. The learned counsel also contended that the defence of the accused cannot be looked into at this stage and it may be looked only at the stage of the trial. 7 After hearing the learned counsel for the parties and on perusal of the relevant provisions of law, it appears from the contents of the complaint that the offence of using criminal force defined under section 350 was committed. The offence under section 506 of the IPC was also allegedly committed. Incidently, both these offences are non-cognizable offence. If any cognizable offience is committed alongwith these non-cognizable offence, the police may certainly take cognizance of the offences and investigate the same. As far as the offence under section 380 of IPC is concerned, it is the contention of the accused that at the time of the alleged incident, he had got prepared the gate passes, which clearly recorded shifting of each and every item from the ground floor of the residential building to the business premises of the company at Ambassador Sky Chef, indicates that he had no intention to commit an office of theft, particularly because the ground floor was never in the possession of the complainant. According to 5 the complainant, he was in possession of the first floor of the residential building. It appears that the ground floor was in joint possession of the parties and it is a company property. Whether the gate passes were prepared at the time of removing the property from residential building at Pali Hill or they were prepared later on needs to be investigated by the police. If the accused had clearly prepared the documents for shifting of the company property from one premises to another premises, possibly it may not be an offence, though an action may be taken under provisions of company law if he acted without resolution of Board. 8 The learned counsel for the accused contended that the company or the corporate house is worth to Rs. 1000/- crores and therefore, it is impossible to believe that the accused would commit theft of items of furnitures worth only Rs. 1.91 lakhs. This aspects also needs to be considered. All these aspects can be properly looked into by the trial court when the charge-sheet is filed. If the offence under section 380 of IPC is not made out, the trial court may also consider whether the investigation by the police for the offence under section 352 or 323 and 506 which are non-cognizable is justified or not. All these aspects can be looked into by the trial court. If during the investigation, no such circumstance in favour of the accused is found, his contention may be only in the nature of defence which can be considered at the time of trial. In any case, the proceedings cannot be quashed nor the investigation can be stopped. 9 For the aforesaid reasons, this application stands rejected. However, in 6 case the chargesheet is filed by the police against the accused, the applicant shall be at liberty to move the trial court for discharge and point out all the above referred circumstances and such application shall be considered and disposed of by the trial court on its own merits. (J. H. BHATIA,J.)