APPLN. 1280, 1292-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1280 OF 2010 Mr. Devanathan Sundrajan ...Applicant Vs. State of Maharashtra & Anr. ...Respondents AND CRIMINAL APPLICATION No. 1292 OF 2010 Mr. Sanjay Kumar Jain ...Applicant Vs. State of Maharashtra & Anr. ...Respondents *** Mr. Vijay Pradhan, Sr. counsel & Mr. S. J. Mishra i/b SRS Legal, for the Applicant. Mr. Vivek Bajwa i/b Vidhi Partners, for Respondent No.2. Mr. P. S. Hingorani, APP for the Respondent-State in Cri. Application No. 1280/2010. Mr. A. S. Shitole, APP for the Respondent-State in Cri. Application No.1292/2010. *** CORAM: V. M. KANADE J. DATE : OCTOBER 18, 2010 P.C. 1. Both these applications are field by the original accused for quashing the Criminal Complaint No. 0800019/SW/2010 and the FIR APPLN. 1280, 1292-10 - 2 - being M.E.C.R. No. 1 of 2010, registered with the Marine Drive Police Station, and the order passed by the learned Magistrate, directing the investigation under S. 156(3) Cr. P. C. 2. The applicant in Cri. Application No. 1280 of 2010 is original accused No.1 and applicant in Cri. Application No. 1292 of 2010 is original accused No.2. On 19th March, 2010 this Court was pleased to issue notice to the original complainant, which was made returnable on 16th April, 2010 and an ad-interim relief was granted in terms of amended prayer clause (e), with a direction that no coercive steps shall be taken against the applicants. Thereafter, the application was made by the learned counsel appearing on behalf of respondent No.2 for vacating the ad-interim relief and for dismissal of the criminal applications. By consent of the parties, the matter was taken up for final disposal at the stage of admission. Hence, rule made returnable forth with by consent of parties. 3. The brief facts are as under- . Respondent No.2 is a power of attorney holder of one Mukunddas Rathi. The complainant and said Mukunddas Rathi are partners of M/s. Seth Thakurdas Khinvraj Rathi. They are also joint owners of flat No. 17, situate on 3rd floor of building “Shanti Niketan”, APPLN. 1280, 1292-10 - 3 - 95-A, Marine Drive, Mumbai. According to the complainant, accused No.1 some time in February, 2008 informed the complainant that M/s. Cals Refineries were in urgent need of decent residential accommodation for their senior Director & his family members for a period of five years on leave & license basis. Accordingly, the negotiations took place between the parties. One was leave and license agreement dated 10th March, 2008 and second agreement was license & hire charges agreement of the same date. In the agreement, it was agreed that the license fees and hire charges of Rs.3,65,000/- per month was payable from 10-3-2008 to 9-3-2011 and further license fee and hire charges for the balance period from 10-3-2011 to 9-3-2013 would be Rs.4,19,750/- per month and the security deposit was Rs.5,00,000/-. The said agreement was registered with the Sub-Registrar of Assurances and the possession of the flat was handed over to the accused. According to the complainant, there was default in payment with regard to the license fees and hire charges and therefore three notices were sent to the accused and therefore, a legal notice dated 17th December, 2009 was sent by the complainant’s advocate, terminating the leave and license agreement and also to return the duplicate keys. According to the complainant, instead of returning the keys, he noticed that the accused had changed the lock APPLN. 1280, 1292-10 - 4 - of the flat, contrary to the terms and conditions of the agreement. The complaint, therefore, was filed by the complainant in the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Mumbai. In the complaint it was alleged that on account of non-payment of the license fees and hire charges, the accused who was entrusted with the said property were dishonestly using the said property in violation of the terms and conditions of the agreement, therefore, committed an offence punishable under S. 406 of the I. P. Code. It was further alleged that since the locks were changed by the accused, he had committed criminal breach of trust under S. 406 read with S. 120-B of the I. P. Code. It was further alleged that since accused had not handed over possession of the flat in spite of termination of the agreement by the complainant, he had committed an offence of criminal trespass and therefore, was liable for the offence punishable under S. 446 and 447 of the I.P. Code. In the complaint, a prayer was made for sending the case for investigation under S. 156(3) Cr. P. C. The learned Magistrate accordingly by an order dated 1st February, 2010 was pleased to direct the police to investigate into the said case. Pursuant to the said order, the Marine Drive Police Station registered the FIR vide M.E.C.R. No. 1 of 2010. 4. Mr. Pradhan, the learned senior counsel appearing on behalf APPLN. 1280, 1292-10 - 5 - of the applicants submitted that the applicants had been put in possession, pursuant to the lawful agreement of leave & license, which was executed between the parties and on account of leakage of flat they had asked the complainant to repair the said leakage and therefore, dispute had arisen between the parties, pursuant to which various civil cases were filed by both the parties against each other in Small Causes Court. He submitted that therefore, the offence punishable under S. 406 of the I. P. Code was not attracted. He also submitted that continuation of the occupation of the premises by the accused after the termination of the leave & license agreement would not amount to an offence under S. 441 of the I. P. Code and therefore, ingredients of the said offences were not attracted. In support of the said contention, he relied on the judgment of the Apex Court in the case of – Kanwal Sood Vs. Nawal Kishore [1983(3) SCC 25] and the judgment of the Allahabad High Court in the case of – Somnath Paul Vs. Ram Bharose [ 1991 Cri.L.J. O 2499]. He also relied on a judgment of the Apex Court in the case of – Superintendent and Remembrancer of Legal Affairs, West Bengal, Appellant v. Birendra Chandra Chakravarty, Respondent [AIR 1974 Supreme Court 290]. It was then submitted that the learned Magistrate erred in passing an order of directing the police to investigate under APPLN. 1280, 1292-10 - 6 - S. 156(3) Cr. P. C. without looking into the allegations made in the complaint, nor ascertaining whether it requires investigation at all. 5. The learned counsel for the applicants further relied on the judgment of the Madras High Court in the case of – S. P. Shenbagmoorthy, Petitioner v. Muka. Stalin & Anr., Respondents [ 2003 Cri. L. J. 271]. He also relied on the judgment of the Full Bench of this Court in the case of – Panchabhai Popotbhai Butani & Ors. etc. v. State of Maharashtra & Ors. etc. [ 2010 Cri. L.J., 2723]. 6. On the other hand, the learned counsel appearing on behalf of respondent/complainant submitted that scope of powers which can be exercised by this Court under S. 482 Cr. P. C. for quashing FIR is extremely limited. He submitted that the High Court was legally precluded from looking into any other material than the contents of impugned FIR itself. He relied on the following judgments in support of this submission - (i) C.B.I. & Ors. v. Tapan Kumar Singh [Judgment Today 2003(4) S.C.26]; (ii) M. L. Bhatt v. M. K. Pandita [ Judgment Today 2002(3) SC 89 ]; (iii) Pratibha v. Rameshwari Devi [Judgment Today 2007(11) SC 122]. 7. Secondly, it was submitted on behalf of APPLN. 1280, 1292-10 - 7 - respondent/complainant that at the stage of quashing of the FIR under S. 482 Cr. P. C. mala fide on the part of the complainant was of no consequence. He relied on following judgments in support of this submission- (i) M. Narain Dass v. State of Karnataka [Judgment Today 2003 (Supp.I) SC 412 (Para 11); (ii) State of Andhra Pradesh v. Aravapally Venkanna [ Judgment Today 2009(7) SC 64]. 8. Thirdly, it was submitted that the defense material produced by the accused cannot be looked into at the stage of quashing the FIR, in a petition under S. 482 Cr.P.C. In support of this submission, he relied on the judgment in the case of – Ravindra Kumar Madhan Lal Goenka Vs. M/s. Rugmini Ram Raghav Spinners Pvt. Ltd. [ Judgment Today 2009 SC 203 (Para 14) ]. 9. It was then submitted that so far as the complaint/FIR is concerned, the requisite allegations prima-facie attract the offences punishable under S. 406 read with S. 120-B, 446 and 447 of the I. P. Code, was very much there in the complaint. It was submitted that there was allegation regarding entrustment, dishonest use of the property in violation of the legal contract. It was submitted that dominion over the APPLN. 1280, 1292-10 - 8 - property was evident from the Leave & License agreement and hire charges agreement. Further it was submitted that dishonest usage in violation of legal contract was evident from the applicants’ continued possession and use of of the complainant’s flat in gross violation of the terms and conditions of the said agreement. It was then submitted that the dishonest use of the complainant’s flat could be seen from clause 3, 7, 9, 11, 15 and 22 of the Leave and License agreement. It was submitted that applicants had set up a case which was not only contrary to the terms and conditions contained in the said clauses, but also contrary to what they had stated and sought in their civil suit in Small Causes Court. It is submitted that this conduct reveals their dishonest intentions to continue usage of the property. It was submitted that on one hand, the Company M/s. Cals Refineries Ltd. filed L.D. Suit No. 250 of 2008 in the Small Causes Court at Mumbai in which the relief claimed by the accused was for a declaration that a Leave & License agreement should be declared as legal, valid and subsisting and by way of an interim relief an order of interim injunction was sought restraining the complainant from causing any obstruction in the repair work which was carried out by the accused and thereafter a civil suit was filed. 10. It was further submitted that during pendency of the said APPLN. 1280, 1292-10 - 9 - civil suit, the agreement was sought to be terminated by a letter dated 13th July, 2009. It was submitted that as per the terms of the agreement, the leave & license should not be terminated for a period of two years since there was a locking period of two years, in view of Clause 3 of the said Agreement. 11. It was further submitted that in the application filed by the complainant under S. 24 of the Maharashtra Rent Control Act before the Competent Authority, a new plea was raised that the condition of the flat was not revealed to them and the same was suppressed. It was submitted that the case filed by the complainant before the Competent Authority was allowed and the accused were directed to pay arrears of compensation and damages with a further direction to vacate the said flat. It was submitted that this order was confirmed in revision before the Additional Commissioner. 12. In support of the submission regarding commission of offence punishable under S. 405 of the I. P. Code, the learned counsel for respondent No.2 relied on following judgments - (i) R. K. Dalmia v. Delhi Administration [A.I.R. 1962 (SC) 1821]; (ii) Arvind Kotecha v. Mahesh Kumar Mathur [1992 Cri. L.J. 124 (Bombay High Court)]; APPLN. 1280, 1292-10 - 10 - (iii) Mannath Balchandran vs. Forbs Campbell & Co. Ltd. [ 1996 Cri. L.J. 2131 (Bombay High Court)]; (iv) Judgment of Delhi High Court, rendered in the case of - Syed Amin Chaudhary vs. State & Ors. 13. I have given my anxious consideration to the submissions made by both the counsels, after the matter was heard at length. In my view, after having perused the complaint, no case is made out for the offences of criminal breach of trust or criminal trespass, as alleged by the complainant. Even if the averments in the complaint are taken at its face value, the said offences which are alleged to have been committed by the accused, are not made out, as the ingredients of the said offences of criminal breach of trust and criminal trespass are not found in the averments made in the complaint. Secondly, the case at hand appears to be a civil dispute and appears to have been filed only for the purpose of putting pressure on the accused for either settling the dispute or for making them to pay the amount demanded by the complainant. 14. The brief admitted position is that the complainant had offered his flat to the Company – M/s. Cals Refineries Ltd. and found that the said premises are in a good condition and thereafter both the parties entered into leave & license agreement for Rs.3,65,000/- per APPLN. 1280, 1292-10 - 11 - month for a period of three years and further accorded licence and hire charges of Rs.4,19,750/- for further period of two years along with security deposit of Rs. 5,00,000/-. This agreement was registered with the Sub-Registrar on 10th March, 2008. According to the complainant, as per the terms of the agreement M/s. Cals Refineries Ltd. were required to make payment of Rs.43,82,000/- for subsequent 12 months advance licence fee and hire charges on 9th March, 2009. However, the said advance payment was not made. Therefore, according to the complainant they had committed default in making payment and therefore, three notices were issued by the complainant, dated 13-2-2009, 9-3-2009 and 16-3-2009. It is a case of the complainant that, therefore, as a result of breach of the said clause in the agreement, the accused had committed criminal breach of trust. Thereafter, after the complainant demanded the duplicate keys of the flat, they changed the lock and further committed act of criminal breach of trust. According to the complainant, since they continued to be in possession of the said flat, they also committed criminal trespass, since by notice dated 17th December, 2009 the complainant terminated the said agreement and in spite of termination of the said leave & leave agreement, the accused having retained possession of the flat, committed criminal trespass. In my view, having perused the APPLN. 1280, 1292-10 - 12 - said averments made in the complaint and even if the said averments are accepted at its face value, the offences of criminal breach of trust and criminal trespass are not made out by the Company. 15. So far as offence of criminal breach of trust is concerned, it is defined in Section 405 of the I. P. Code, which reads as under- “S. 405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. . Careful reading of the section shows that criminal breach of trust involves following ingredients- (a) a person should have been entrusted with property or entrusted with dominion over the property; (b) that person should dishonestly misappropriate or convert to his own use that property; or . dishonestly use or dispose of that property or wilfully suffers any other person so to do; (c) that such misappropriation, conversion, use or disposal APPLN. 1280, 1292-10 - 13 - should be in violation of any direction of law, prescribing the mode in which such trust is to be discharged or of any legal contract which the person has made touching the discharge of such trust. 16. In the present case, it has been alleged that the accused had dishonestly used the said property by not making payment of the advance amount which was agreed to be paid as per the contract and by remaining in possession, the accused had committed the criminal breach of trust. In the present case, it is an admitted position that the property was entrusted by ‘leave & licence’ agreement, provided that accused would be in possession of the premises for a period of five years. The accused, therefore, were in possession of the property, pursuant to ‘leave & licence’ agreement. During the time they were in possession, they did not transfer the property to any third party or created any other interest in favour of any other party. Therefore, it cannot be said that there was dishonest use or attempt made to convert or dispose of that property. As of today, it is an admitted position that the possession had been handed over. Viewed from any angle, therefore, it cannot be said that there was dishonest use of the said property. At the highest, it can be said that there was breach of contract between the parties. APPLN. 1280, 1292-10 - 14 - 17. In the present case, admittedly, a civil dispute is pending between the parties. According to accused, soon after taking possession of the property it is realized that there was a huge leakage in the flat and they had been asking the complainant to get the leakage repaired. The complainant had also approached the various Courts, including the competent court under S. 24 of the Maharashtra Rent Control Act and the accused had filed the suit in the Small Causes Court, seeking various reliefs. Under these circumstances, therefore, no offence of criminal breach of trust has been spell out from the averments of the complaint. 18. So far as the allegation regarding criminal trespass is concerned, in my view, even if the averments in the complaint are accepted at its face alue, even then the said offence is not made out. The Apex Court in the case of Kanwal Sood (supra) in paragraph 10 and 11, observed as under- “10. It may be pointed out that the appellant was allowed to occupy the premises in 1967 by Shri R. C. Sood. Under, the terms of gift-deed Shri Sood was entitled to remain in occupation of the premises during his lifetime. He could as well grant, leave and license to the appellant to occupy the premises along with him. Now the question arises about her status after the death of Shri R. C. Sood. At the most, it can be said that after the death of Shri Sood the leave and license APPLN. 1280, 1292-10 - 15 - granted by Shri Sood came to an end and if she stayed in the premises after the death of Shri Sood, her possession may be that of a trespasser but every trespass does not amount to criminal trespass within the meaning of Section 441 of the Indian Penal Code. In order to satisfy the conditions of Section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence. A bare perusal of the complaint filed by respondent No.1 makes it abundantly clear that there is absolutely no allegation about the intention of the appellant to commit any offence or to intimidate, insult or annoy any person in possession, as will be evident from three material paragraphs which are quoted below: “2. That the late Shri R. C. Sood was occupying the said premises in accordance with clause No.1 of a gift- deed, executed by him in favour of Shri Anand Mayee Sangh and after his demise the said premises had to be delivered to Shri Anand Mayee Sangh. 3. That after the demise of Shri R. C. Sood, the accused was repeatedly requested to voluntarily vacate and deliver the possession of the said premises to the Sangh but the accused paid no heed and hence a notice dated 13-11-1973, copy of which enclosed, was sent to the accused as required by U. P. Amendment of Section 448, I.P.C. the said notice was served upon accused on 14-11-1973 as per postal A.D. Receipt attached APPLN. 1280, 1292-10 - 16 - herewith. 4. That the accused was required to quit and vacate the said premises by the 20th day of November, 1973 but instead of vacating the premises the accused has been making unusual pretext and has thus committed an offence under Section 448, I.P.C.” 11. The appellant may be fondly thinking that she had a right to occupy the premises even after the death of Shri R. C. Sood. If a suit for eviction is filed in the Civil Court she might be in a position to indicate her right and justify her possession. This is essentially a civil matter which could be properly adjudicated upon by a competent Civil Court. To initiate criminal proceedings in the circumstances appears to be only an abuse the process of the Court.” 19. The said observations have been made after referring to Section 441, the offence of criminal trespass under the Indian Penal Code. The said judgment was followed by the Allahabad High Court in the cause of Somnath Paul (supra) in which the Allahabad High Court relied on the said judgment. The offence of criminal trespass, therefore, in my view, is not made out by the averments in the complaint. 20. Nowadays, there is a tendency on the part of the litigants to file criminal complaints only for the purpose of pressurising after filing APPLN. 1280, 1292-10 - 17 - the civil dispute. Every breach of contract does not constitute the criminal breach of trust; or continuation of the possession which has come under the lawful contract, does not amount to trespass in every case, after the termination of the contract. In order to constitute an offence, the said breach of contract was also contained in the ingredients of the offence, which is alleged to have been committed. In the present case there is no allegation that possession of the premises was given to any other third party or though it was given for residential use, the user was converted to commercial use, or that any third party interest was created in the property. The possession of the flat has been handed over to the complainant. The competent court under S. 24 of the Maharashtra Rent Control Act has also awarded damages and compensation to the complainant. This Court while exercising its inherent jurisdiction under S. 482 Cr.P.C. is expected to ensure that there is no abuse of process of law and the parameters for quashing of complaints, under S. 482 Cr. P. C. are quite well settled. In the facts and circumstances of the case, I am of the view that the applicants have made out the case for quashing the complaint. The learned counsel for respondent No.2 has relied on number of judgments. There can not be any dispute regarding the ratio of the said judgments. However, the ratio of the said judgments, in my APPLN. 1280, 1292-10 - 18 - view, would not apply to the facts of the present case. In the result, both the criminal applications are allowed in terms of prayer clauses (c) and (d). Rule is made absolute in the aforesaid terms. [ V. M. KANADE J.]