1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3363 OF 2008 (LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2008 (APPEAL AGAINST ACQUITTAL) Mr. Jaweed Akhtar a. Khan ...... Applicant. V/s H. Hussein Khan and Ors. ...... Respondents ----- Mr. Uday P. Warunjikar for the applicant. Mr. D.P. Adsule, APP for the State. ------ CORAM: V.M. KANADE, J. DATE: 3rd October, 2008 P.C.: 1. Heard the learned Counsel for the applicant. 2. Applicant is challenging the judgment and order passed by the Judicial Magistrate, First Class dated 28/07/2008 in Regular Criminal Case No.485 of 2004 whereby the Trial Court was pleased to dismiss 2 the complaint filed by the applicant herein for the offence punishable under sections 504, 506(ii), 427, 447 read with section 34 of the Indian Penal Code. 3. It is the case of the applicant in his complaint that he is a General Secretary of the Firdaus “D” Wing Tenants' Association. It is his case that on 13/6/2004, at about 10.15 p.m,, the accused demolished the wall of the building and entered inside the property of the complainant' s association and threatened and abused the complainant. Initially, NC was lodged by the complainant at Mumbra Police Station and since the police failed to initiate any proceedings, a private complaint was filed by the complainant. The Trial Court, after perusing the evidence on record, was pleased to dismiss the complaint. 4. The learned Counsel appearing on behalf of the applicant herein – original complainant, submitted that the learned Magistrate had failed to take into consideration, firstly, that the offence of mischief was committed under section 427 of the Indian Penal Code. He submitted that the learned Judge has not taken into consideration the evidence of the complainant and his witnesses who had duly proved that the accused had committed the aforesaid offence of mischief and criminal trespass. He submitted that, practically, there was no discussion made by the learned Magistrate in respect of the aforesaid offence. He also submitted that the Trial Court has also erred in holding that the offence under section 404, 506(ii) was not proved by the applicant. 3 5. I have read the evidence of the complainant and his cross- examination and the judgment and order of the Trial Court. The Trial Court, after appreciating the evidence on record, has come to the conclusion that there is contradiction between the evidence of the complainant and the other witnesses. He has further observed that, in the evidence of the complainant, no case has been made out for the offence punishable under sections 504 and 506(ii) of the Indian Penal Code. He has observed that there is material improvement in the evidence of P. W. 2 – Abdul Hamid Usman Shah Patel. The Trial Court has also noticed that P W 3 – Sayyadali Mohammad Acchan has not stated in his evidence what threat and criminal intimidation was given by accused Nos. 1 to 3 at the relevant time and place and, therefore, no offence was committed by the accused punishable under sections 504, 506(ii) of the Indian Penal Code. So far as offence under sections 427 and 447 of the Indian Penal Code is concerned, the Trial Court has, in paragraphs 11 and 12 of its judgment, has taken into consideration the evidence of witnesses and after comparing the evidence of P. W. 1, P. W. 2 and P. W. 3, has recorded a finding that there is material contradiction in the evidence of the complainant, P. W. 2 and P.W.3 on the crucial aspect of damage caused by the hammer by accused Nos. 1 to 3. The Trial Court has further observed that the Society in question did not file any complaint and that it is not mentioned anywhere in the complaint or in the evidence that accused Nos. 1 to 3 entered the premises of Firdos Building and the property owned by the complainant. The Trial Court, therefore, came to the conclusion that the complainant had not proved 4 commission of the offence under sections 427 and 447 of the Indian Penal code. 6. I do not see any infirmity in the order passed by the learned Magistrate. The learned Magistrate has given cogent reasons for dismissal of the complaint of the complainant. Hence, no case is made out to interfere with the order passed by the learned Magistrate. Leave is, therefore, refused. Application is dismissed. Appeal does not survive. (V.M. KANADE, J.)