rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2845 OF 1999 CRIMINAL APPLICATION NO.2845 OF 1999 CRIMINAL APPLICATION NO.2845 OF 1999 IN IN IN CRIMINAL APPEAL NO. OF 1999 CRIMINAL APPEAL NO. OF 1999 CRIMINAL APPEAL NO. OF 1999 Omnath Chudamani Sharma .. Applicant Vs. Deepak Mahadev Patil & Anr. .. Respondents Mr.Ravindra A.Lokhande i/b.D.A.Nalawade for the Applicant. Mr.Y.S.Shinde, A.P.P.for the State. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 20TH JANUARY, 2009 DATED : 20TH JANUARY, 2009 DATED : 20TH JANUARY, 2009 P.C. P.C. P.C. . Heard the learned Advocate for the Applicant. By this application, the Applicant is seeking special leave to prefer an Appeal under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The Applicant filed a private complaint alleging commission of offences under section 452, 427, 323, 380 and 506(II) read with section 114 of the Indian Penal Code. ( 2 ) 2. The case of the Applicant/complainant is that he had taken a loan from the Respondent accused as he was in need of money. The Respondent accused had threatened the Applicant to dispossess him from his flat and therefore on 10th and 18th March, 1981 the Applicant had lodged a complaint against the Respondent Accused with D.N.Nagar Police Station at Mumbai. 3. The case of the Applicant that on 19th March, 1981 at about 9.30.p.m., when he was present in the flat alongiwth his family members, the Respondent Accused alongwith 50 persons entered the flat carrying deadly weapons like swords, knives, lathis etc. The Respondent accused broke open the side door of the flat with the help of his associates. Thereafter, the Respondent accused removed the main latch of the front door by breaking it open. The Respondent Accused abused and threatened the Applicant. The Respondent accused caught the Applicant and placed a knife on his neck and threatened him that if he did not go out of the flat, he alongwith his family members would be ( 3 ) killed. The case of the Applicant is that the Respondent accused forced the Applicant to sign a writing and thereafter the Respondent accused alongwith the associates pushed the Applicant and his family members out of the flat. The allegations is that the Respondent assaulted the Applicant and his wife. It is alleged that the Respondent accused alongwith the assailants threw away the articles of the Applicant in the flat. 3. The case of the Applicant is that he raised shouts when secretary of the society and other persons in the building gathered and witnessed the incident. Police were called and Applicant was sent for medical check up. 4. The learned counsel for the Applicant submits that there was enough evidence on record to prove forcible dispossession by the Respondent and his associates as well as the fact that the Respondent accused assaulted the Applicant and his wife. He submitted that the impugned Judgment and order is ( 4 ) perverse. 5. I have carefully considered the submission. While passing orders of acquittal, the learned Judge of the Trial Court has considered the following circumstances. a. There is a Civil Suit pending between the parties and there is a proceeding under section 145 of the Code of Criminal Procedure, 1973 pending between the parties. b. Though it is alleged that large number of residents from the society had gathered to the spot of incident, not a single witness from the society residents was examined by the Applicant as a witness. c. The secretary of the society (P.W.6) admitted that he had not seen the alleged incident and that he was not aware if the Respondent accused made entry in the flat without the consent of the Applicant. ( 5 ) d. Except interested witnesses, independent witnesses such as neighbours of the Applicant were not examined. e. The Applicant could not provide any documentary evidence to show that he was in possession of the flat since July, 1975 and that there was no documentary evidence on record to show that the society had placed him in possession of the flat. The documents like cooking gas connection record or electricity bills were not produced by the Applicant. f. Though, according to the Applicant 28 to 30 persons entered in the flat at the time of incident, the Respondent was named as the only accused. Medical officer was not examined to prove the medical certificate for establishing the injuries on the person of the Applicant and his wife. g. There were material contradictions and ( 6 ) omissions in the complaint filed by the Applicant. 6. Considering the factual aspects taken into account by the learned Magistrate, the view taken by the learned Magistrate appears to be a possible view and no interference is called for in the Appeal against acquittal. Hence, the Application is rejected. (A.S.Oka, J.) (A.S.Oka, J.) (A.S.Oka, J.)