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.1067 OF 1997. WRIT PETITION NO.1067 OF 1997. WRIT PETITION NO.1067 OF 1997. Shri M.P.Vaidya & Ors. ..Petitioners. versus Kumar Waman Paranjape & Anr. ..Respondents. .... Mr.R.G. Ketkar, Advocate for the Petitioners. Mr.Y.S.Shinde, APP for Respondent No.2-State. None for Respondent No.1. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 8TH JULY,2008. : 8TH JULY,2008. : 8TH JULY,2008. ORAL JUDGMENT : 1. The submissions of the learned counsel appearing for the petitioners were heard yesterday. This writ petition is under Article 227 of the Constitution of India r/w section 482 of the Code of Criminal Procedure, 1973. The petitioners have challenged the order issuing process passed on the private complaint filed by the first respondent. 2. In the normal course, in view of the law laid down by this Court in the case of V.K.Jain & Others v/s. Pratap V. Padode & Anr. [2005(3) Mh.L.J. 778], the petitioners would have been relegated to a remedy of filing a revision application under section 397 of the said Code. However, in this petition filed in the year 1997, notice was issued on 4th November 1997 and the rule was issued on 2nd February 1998. Now it will be unjust to relegate the parties to another remedy. Moreover, availability of remedy under section 397 of the said Code does not take away or affect the power of this Court under section 482 of the said Code. Moreover, this is one of those rare cases where the power under section 482 of the said Code will have to be exercised. 3. The first petitioner, at the relevant time, was the Assessor and Collector of taxes of the Municipal Corporation of the City of Pune. The second petitioner was at the relevant time the Assistant Assessor and Collector of taxes of the said Corporation. The third petitioner is the said Corporation. The first respondent filed a private complaint against the petitioners in which the learned Magistrate should process under sections 166, 167, 192, 385, 506 of the Indian Penal Code. The allegation made in the complaint is that the first respondent was the sole occupier of the property bearing CTS No.1126B situated at Budhwar Peth, Pune. The first respondent applied to the third petitioner - Corporation praying for entering the property in his name in the official records and for assessing the said property in his name. The allegation is that the first and the second petitioners demanded a payment of Rs.2,445/- from the first respondent. It is alleged that the said demand of Rs.2,445/- was never supported by any bill or document. According to the case made out by the first respondent, the first and the second petitioners threatened to keep the official record as it is unless a demand for payment of Rs.2,445/- complied with by the first respondent. The allegation of the first respondent is that the first and the second petitioners declined to issue a bill in the sum of Rs.2,445/-. The allegation is that by demanding the sum of Rs.2,445/-, the petitioners have committed an offence punishable under section 161 of the Indian Penal Code (hereinafter referred to as ’the Penal Code’). The allegation is that the demand of the payment of the aforesaid amount without issuing a bill , amounts to committing an offence punishable under section 165 of the Penal Code. An allegation was also made as regards the commission of offences under sections 166, 177, 192, 385 & 506 of the Penal Code. The case of the first respondent was that property bearing CTS No.1126B was allotted to his share in the partition proceedings. 4. The learned counsel appearing for the petitioners has taken me through various documents annexed to the petition. He submitted that even assuming that the averments made by the first respondent in the complaint were true, the process could not have been issued by the learned Magistrate. It must be noted here that notice before admission was issued earlier in this petition. On the basis of the said notice, the first respondent appeared in person and filed a reply in writing. The orders on the Farad Sheet show that after rule was issued, a fresh notice was ordered to be served to the first respondent. The endorsement made on the Farad Sheet on 31st July 2000 shows that the first respondent has been duly served with the notice. None appears for the first respondent. However, I have perused the reply filed by the first respondent at the stage of admission. 5 Perusal of the document at Exhibit ’A’ annexed to the petition shows that the first respondent made an application to the first petitioner for separately assessing the said CTS No.1126B. It was stated that in partition, CTS No.1126 has been divided into CTS No.1126A and 1126B. The said application was filed by the first respondent on 26th December 1996. Alongwith the another letter dated 30th December 1996, the first respondent submitted a certified copy of the plan drawn by the City Survey Officer. It appears that by letter dated 3rd February 1997 sent by the petitioners, the first respondent was informed to deposit arrears of property taxes in the sum of Rs.2,445/- in respect of the said property, which were payable as on 31st March 1997. The third petitioner issued a letter dated 19th May 1997 to the first respondent informing the first respondent that the necessary steps will be taken according to his application after the arrears of taxes payable as on 31st March 1997 were paid by him. By the letter dated 5th June 1997, the first respondent was again informed to pay arrears of Rs.2,445/-. In the said letter, it was stated that a Bill for the arrears in the amount of Rs.2,445/- was already sent to the first respondent. 6. The aforesaid documents have not only been referred to and relied upon in the petition but the copies of the same have been annexed to the petition. Perusal of the reply filed by the first respondent shows that he has not disputed the said documents annexed to the petition. Thus, it appears that the demand in the sum of Rs.2,445/- made by the petitioners was on account arrears of property taxes upto 31st March 1997. Therefore, on the face of it, the learned Magistrate has committed a grave error by issuing process under sections 166, 167, 192,385 and 506 of the Penal Code. No case of commission of any of the offences was made out. 7. Hence, the petition must succeed. Rule is made absolute in terms of prayer clause (b). [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]