1 criwp-401.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 401 OF 2011 1. Harish Gokuldas Kalantry, age 50 years, Indian Inhabitant, 2. Dinesh Gokuldas Kalantry, age 59 years, Indian Inhabitant, Both residing at 140, Azad Society, Ambawadi, Ahmadabad. 3. Sudha Kiran Kalantry, age 52 years, Indian Inhabitant, 4. Kiran Gokuldas Kalantry, age 58 years, Indian Inhabitant, both residing at Madhuban Apartment, Abdul Gaffar Khan Road, Worli, Mumbai - 400 018. Petitioners versus 1. Deepak Manohar Patil, Rakhi Galaxy, Kannot Place, Town Centre, CIDCO, Aurangabad, Maharashtra. 2. The State of Maharashtra, through MIDC, Cidco Police Station, Aurangabad, Maharashtra. Respondents --------- Shri Girish Kulkarni, Advocate, with Shri Madhusudan Pareek, instructed by Ms. Priyanka Sawji, Advocate, for the Petitioners. Shri Ajay Inder Sangwar with Mr. Ashish Aggrawal, instructed by Shri S.P. Chapalgaonkar, Advocate, for Respondent No.1. Shri N.R. Shaikh, Astt. Public Prosecutor, for Respondent No. 2. ---------- 2 criwp-401.11 Coram: A.H. Joshi and A.R.Joshi, JJ. Date : 03.10.2011. Judgment : ( Per: A.H.Joshi, J.) 01. Rule. Rule is made returnable forthwith and heard, by consent. 02. Heard both sides, and perused the record. 03. The parties herein have been litigating for considerably long time. The circumstances which are undisputed and disputed, are narrated in summary in two paras to follow:- 04. Facts not in dispute:- (i) Respondent is an employee of M/s Presto Export Limited. One Dr. Prithvi Paul Singh Sethi is the Director of M/s Presto Export Ltd. (ii) M/s Presto Export Limited engaged services of the petitioners herein for certain purposes, namely, acquisition of certain assets of Devgiri Textile Mills Limited, a subsidiary company of Maharashtra State Textile Corporation Limited. (iii) Some written arrangement has been arrived at between the parties and the terms thereof are not explicitly brought on record, as admitted-stipulations. (iv) Whatever be the terms, the petitioners herein undertook the bidding for the assets of the Devgiri Textile. 3 criwp-401.11 (v) The amount payable to Devgiri Textile was paid by M/s Presto Export Limited. (vi) M/s Presto Export Limited claimed entire assets of Devgiri Textile, consisting of land, building, plant and machinery. (vii) The petitioners disputed and denied the right of M/s Presto Export Limited to get entire assets of Devgiri Textile Mills, and raised a plea that what was to be acquired for and on behalf of M/s Presto Export Limited was only the plant and machinery and that M/s Presto Export Limited had no right over rest of the assets of the Devgiri Textile Mills. (viii) M/s Presto Export Limited. has filed suit for specific performance, being Suit No. 2477 of 2010, in the Bombay High Court, on its Original Side at Bombay. (ix) In the said suit, the petitioners herein have appeared and are contesting the suit. Inter alia, Petitioners (defendants) have pleaded that right of M/s Presto Export Limited pertains to the 'plant and machinery' only, and it had no right over other assets of Devgiri Textiles Ltd. (x) The petitioners herein admitted in the written statement that Deepak Manohar Patil is looking after the plant and machinery of Devgiri Textile Mill, for and on behalf of M/s Presto Export Limited. 4 criwp-401.11 05. Facts in dispute: (i) The agreement between the parties was for acquisition of entire assets by petitioners for and on behalf of M/s Presto Export Limited. (ii) Which amongst the two parties, is in possession of the property of Devgiri Textile Mill. 06. FIR was lodged by respondent No.1 in Police Station, MIDC Area, Chikalthana, Aurangabad, against the petitioners for offences punishable under Sections 406, 420, 467, 471 and 506(2) read with Section 34 of IPC. 07. Substance of the complaint can be summarized as follows: (a) Petitioners through their firm Remi Twist Spin Industries were assigned work for bidding for purchase of properties of Devgiri Textile Mill, by Presto Exports Ltd. which the petitioners had undertaken. (b) Entire bid amount, including the amount payable for stamp duty and huge amount over ` 8.00 crores was paid by M/s Presto Export Limited. (c) Order of status quo has been granted by the Hon'ble Supreme Court, as well, the accused persons are restrained from dealing with the assets-subject matter in any manner detrimental thereto. 5 criwp-401.11 (d) While the complainant (Deepak Manohar Patil) was photographing through his Mobile in the premises of Devgiri Textile Mills, the accused persons obstructed his entry in the premises and threatened him not to enter in the premises. (e) Some industrial activities were commenced by accused persons, as was evident from the power consumption etc. 08. In this petition, the petitioners have challenged the maintainability of the complaint lodged to police and urged that the FIR cannot be registered and proceeded with for inquiry therein. 09. Though various grounds are urged during oral submissions, the points incorporated in the petition have been further argued and elucidated. For ready reference, the grounds in the petition, which are emphasized, are quoted below: " (f) It is pertinent to note that by order dated 4th January 2011, Hon'ble Supreme Court granted status quo only with regard to running of the mill. It is in Petitioners right to allow or disallow anybody to enter in factory premises. ............................................................................................................ (h) The entire FIR does not mention the ingredient of Section 506 of IPC against Petitioner Nos. 2 to 4. Thus, on this count also the the Complaint under Section 506 fails qua the Petitioners; ............................................................................................................ 6 criwp-401.11 (k) Admittedly, there are ongoing disputes between the said Mr. Prithvi Pal Singh Seth and the Petitioners in respect of the said premises. The orders of the Hon'ble Apex Court if read carefully would reveal that the Petitioners have succeeded in the litigations. Thus, by virtue of the same, the Complainant or his employer Mr. Prithvi Pal Singh Seth is not entitled to enter the premises; (l) It is pertinent to note that Petitioners in the business of textile mills, where many other workers are working and in such case Complainant has failed to name any independent witness in whose presence he was restrained from entering in the premises of the Petitioners, therefore in the absence of the same the vague allegation of obstructing him to enter in the premises of the Petitioners doesn't suffice, hence offence under Section 341 of IPC is not made out; ............................................................................................................. (p) None of the ingredients of offence u/s 341, 506 r/w 34 of IPC are made out or are constituting any offence in the said complaint. " (quoted from para 4, pages 6 to 9 of memo of Criminal WP) 10. In reply to submissions of the learned Advocate for the Petitioners, the learned Advocate for the respondent has urged following points: 7 criwp-401.11 (a) From admitted position, status of the Petitioners is that of an agent of Presto Exports Ltd. and they have no right whatever to assets of Devgiri Textile Mill. (b) The petitioners do admit in the pleadings i.e. in written statement filed in the civil suit, as well as in other proceedings that Deepak Manohar Patil is the representative of M/s Presto Export Limited and he has been taking care of the property and was enjoying free access in the premises of Devgiri Textile Mill. (c) There is an order of status quo granted by the Hon'ble Supreme Court and the petitioners herein are restrained from abuse or otherwise creating any adverse interest in the property - the subject matter. (d) In these premises, it is obvious that the rights of the Principal ( M/s Presto Export Limited) are not in dispute, because though the petitioners are disputing the right of M/s Presto Export Limited in respect of assets, other than Plant and Machinery. (e) As a natural corollary, therefore, Deepak Patil has a right to access in the premises of Devgiri Textile Mill. (f) In this background, the complaint of Deepak Patil adequately discloses the commission of cognizable offences by the accused persons. 8 criwp-401.11 (g) Truthfulness or correctness of the complaint can be gone into only in the course of investigation. 11. Learned Counsel for respondent no.1 has relied upon the following judgments: (1) Mahesh Chaudhari Vs. State of Rajasthan 2009 DGLS (Soft) 297. (2) Ramprasad vs. State of M.P. AIR 1970 Supreme Court 1818 (3) State of Bihar Vs. Sri Rajendra Agrawalla 1996 CRI L.J. 1372 (S.C.) (v) Rukmini Narvekar Vs. Vijaya Satardekar 2009 CRI.L.J. 822 (S.C.) (vi) State of Bihar Vs. Md.Khalique 2002 CRI.L.J.553 (S.C.) (vii) Kamaladevi Agarwal Vs. State of W.B. 2001 CRI.L.J. 4733(1) (S.C.) (viii) Central Bureau of Investigation Vs. Ravi Shankar Srivastava AIR 2006 SC 2872(1). (ix) Mahavir Prashad Gupta and another Vs. State of National Territory of Delhi and others. AIR 2000 SC 3101. 12. We have considered various aspects addressed before us. From the undisputed facts, the point which emerges for consideration is: "Whether on the given date Deepak Patil had right of entry in Devgiri Textile Mills and whether he was wrongfully restrained and whether, prima facie, thereby offences under Sections 341, 506 etc of IPC and other offences described in the report, were committed ?" 9 criwp-401.11 13. From undisputed facts, it is seen that : (a) In the written statement filed by accused in Civil Suit No.2477 of 2006, the right of access of Deepak Patil in the premises of Devgiri Textile Mill, at least to the extent of guarding the plant and machinery, is unquestionable. (b) Status quo has been ordered by the Hon'ble Apex Court by its order dated 4.1.2011. 14. What is urged by way of grounds in the petition, as well as in the oral submissions, is the challenge to the truthfulness, worthiness and probability of statements contained in FIR. It is also urged that description does not constitute the fact of the matter i.e. the obstruction/wrongful restraint, intimidation etc. 15. The argument that description does not constitute the offenses under Sections 341, 506 of IPC, is bald inasmuch as the description given in the complaint does adequately describe the commission of offences. 16. Truthfulness or worthiness thereof are matters to be considered at the trial, but are not the matters which can be scrutinized in present challenge. 10 criwp-401.11 17. We are, therefore, of the considered view that the petitioners have failed to make out a case to fit into test whether the FIR can be quashed, either being absurd or, so artificial that no prudent man can ever consider existence thereof. 18. Moreover, considering the earlier litigation between the parties and admitted fact that the Principal of the complainant has a right of access and when it is obstructed as pleaded and is not denied by the accused persons and even if it is denied, when the complaint does adequately describe the offences, there are no grounds to throttle the process of criminal law to operate. 19. We, therefore, dismiss the petition and discharge the Rule. (A. R. JOSHI, J.) (A.H. JOSHI, J.) pnd/criwp-401.11