IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3612 OF 2008 Umesh Dattatray Borude .. Applicant Versus The State & Ors. .. Respondents Mr.S. Malik i/by Mr.Tanvir Shaikh for the applicant. Mr.J.P.Yagnik, A.P.P for the respondent no.1. Mr.S.S.Redekar for the respondent nos.2 and 3. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 29th January 2009. : 29th January 2009. : 29th January 2009. P.C.: . Heard the learned counsel appearing for the applicant. The applicant is the original complainant who filed a private complaint alleging commission of offences under section 382, 451, 341 read with section 34 and section 120-B of the Indian Penal Code. The learned Magistrate has passed an order of acquittal and therefore present application is filed under sub section 4 of section 378 of the Code of Criminal Procedure, 1973 for grant of special leave. It is not in dispute that the applicant and 2nd and 3rd respondents (the accused) are related to each other through a common ancestor by the name Laxman Seth. One Dattatraya happens to be a (2) son of daughter of said Laxman Seth. The said Dattatraya expired on 06th September 1996. The applicant/complainant is one of the sons of Dattatraya. Admittedly the said Laxman Seth had a son by the name Anant. The accused no.1 is the son of the said Anant and accused no.2 is the widow of the said Anant. The complaint filed by the applicant proceeds on the footing that his late father Dattatraya was doing wholesale business in coconuts in the name and style of Vijay Pradeep & Co as a proprietor thereof from Shed No.3 (consisting of gala Nos.4, 5 and 6) and stall Nos.21, 24, 25 and 49), all situated in C.J.Shah Mandai, New Municipal Market (Ganesh Market), Lalbaug It is alleged that Dattatraya was carrying on business for 45 years prior to his death. Reliance is placed on various documents such as income tax returns, professional tax returns, telephone bill etc to show that Dattatraya was carrying on wholesale business from the said shed No.3. The case of the applicant as made out in the complaint is that the deceased Dattatraya was the owner of the business conducted in the premises and was in actual physical possession thereof. The case is that at any given time stock of coconuts worth Rs.01,00,000/- was lying in the premises. Reliance is placed on a Will (3) dated 24th December 1995 executed by Dattatraya by which he made a bequest of gala Nos.4, 5 and 6 and the stalls referred to above in favour of the applicant and his brother. The case of the applicant is that he was also assisting deceased Dattatraya in the business. The case is that the demise of Dattatraya paralysed family, and no one could look after the property or business. The case is that the accused took advantage of the adversity and usurped the material lying in the premises. On 24th January 1997, the applicant alongwith his brother and mother visited shed No.3 to perform pooja and resume the business. However, they were physically prevented by the accused and denied access to the shed No.3. The applicant visited Kala Chowki police station to report the incident. The two accused were also called there. However, the accused persuaded the police officer not to register the complaint. The applicant and his mother approached the accused to sort out the problems but the efforts could not succeed. Reliance is placed on the notice dated 03rd February 1997 issued by the applicant without prejudice to his rights and contentions. In the complaint the grievance is that the accused committed theft of coconuts worth Rs.2,00,000/-. The allegation is of commission of offence of house trespass which is (4) punishable under section 451 of the Indian Penal Code. The said allegations relate to shed no.3 comprising of shop nos.3, 4 and 5. An allegation is also made as regards commission of offence under section 341 of the Indian Penal Code. 2. The learned counsel appearing for the applicant has taken me through the impugned judgment and the documents on record including the notes of evidence. He submitted that there is abundant evidence on record to show that for a period of 45 years, the deceased Dattatraya was carrying on business in shed No.3 consisting of gala Nos.4, 5 and 6. He submitted that the learned Magistrate has also accepted the case made out by the applicant that his father was exclusively carrying on business in the shed No.3 consisting of the said three shops. He submitted that going by findings recorded by the learned Judge, the possession of the said three galas by the applicant was accepted by the learned Judge. He pointed out that in criminal case the learned Judge was not concerned with the title relating to the shops/galas in dispute and once trespass by the accused was established, the learned Judge could not have passed an order of acquittal. He submitted that (5) the impugned judgment and order is perverse and is contrary to overwhelming documentary evidence on record which proves the prior possession of the applicant and the dispossession at the hands of the accused. 3. I have carefully considered the submissions. I have perused the impugned judgment and order and the relevant documents on record including the notes of evidence. The factors which are taken into consideration by the learned Judge can be summarised as under: (i) The evidence of the defence witness no.1 shows that the shop nos.3 and 4 were standing in the name of the accused no.2. Shop no.5 was standing in the names of the accused nos.2 and the Radhabai Damodar Khandkar. The premises in dispute are of the ownership of Bombay Municipal Corporation. (ii) The applicant has not claimed ownership in respect of shed no.3 comprising of (6) three shops. (iii) The Will executed by Dattatraya records that shop nos.4 and 5 were standing in the name of accused no.2. (iv) The applicant has not established his exclusive possession over the disputed premises on the material date i.e 24th January 1997. (v) It is not the case of the applicant that on 24th January 1997, the accused made entry in the disputed premises illegally and remained in possesion thereof unlawfully. (vi) There was no documentary evidence produced on record to show that desease father of the applicant had kept stock of coconuts worth Rs.01,00,000/- at the relevant time in the premises in dispute. (7) (vii) In notice dated 03rd February 1997 issued by the applicant, he has stated that he and his brother were fair and generous and were willing to share their property with the accused and requested them to convey acceptance of offer within fortnight after receipt of notice. 4. It will be necessary to refer to evidence of the applicant. In the cross examination he pleaded ignorance about the fact whether any of the shop nos.4, 5 and 6 are standing in the name of the accused. It will be necessary to refer to relevant part of his cross examination. ". ... My father was doing the business in all seven galas in the said Market. In shed no.3 there are three shops bearing nos.4, 5 and 6. There are known as shops. The other shops being shop nos.21, 22, 23 and 43 situated in the Lalbaug market. These shops are in the name of my father, my mother, one cousin Popat Borude (8) and one Kotrekar. However, I am not aware whether any shops are standing in the names of accused. The shop no.21 is standing in the name of my mother Smt.Nalini Borude. However, I cannot say on whose names the other shops are standing. I can produce the documents to show that shop no.21 is standing in the name of my mother. My great grand father was the original My great grand father was the original My great grand father was the original owner owner owner of shop nos.4, 5 and 6, in shed no.3 of shop nos.4, 5 and 6, in shed no.3 of shop nos.4, 5 and 6, in shed no.3. ..." (Emphasis added) 5. A suggestion was given to him in the cross examination that on 24th January 1997 when he went to shop no.3 (shop nos.4, 5 and 6) the goods belonging to accused nos.1 and 2 were stored in the said gala Nos.4, 5 and 6. His response was that he was unable to say whether the goods belonging to accused nos.1 and 2 were stored in said galas. The mother of the applicant also stepped into witness box. In the cross examination she admitted that Laxman Seth, (the grand-father of her husband Dattatray) was the original owner of the gala Nos.4, 5 and 6. She admitted that Laxman Seth had one son and one daughter and the name of his son was Anant. (9) It must be noted that the accused no.1 is the son of Anant and the accused no.2 is the widow of Anant. 6. She stated that she was unable to say whether gala No.4 is standing in the name of the accused no.2 from the year 1968. When a suggestion was given that accused no.2 was having B.M.C licence and rent receipts in her name, the mother of the applicant stated that she was not aware of the said fact. She stated that she was not aware whether rent receipts or B.M.C licence of gala no.3 was in the name of the accused since 1969. The learned Judge has also referred to the evidence of other prosecution witnesses as well as defence witnesses examined by the accused. The material defence witness is Appasaheb Mane, an employee of Estate Department of B.M.C. 7. After taking overall view of the matter, the learned Judge has come to the conclusion which he has recorded in the judgment and in particular paragraph 6 thereof that as on 24th January 1997, the applicant has not established his exclusive possession over the disputed premises. Considering the admitted relationship between the parties and the evidence on (10) record, the said conclusion is certainly a possible conclusion which could have been drawn on the basis of the evidence on record. Foundation of the entire case of the applicant is the exclusive possession of his deceased father and thereafter his exclusive possession. As the learned Judge found that the applicant has not proved his exclusive possession, he has passed an order of acquittal. 8. It is well settled law that if in an appeal against acquittal, the Court finds that the conclusion reached by the learned trial Judge is a possible conclusion which could have been drawn on the basis of the evidence, no interference can be made. Even accepting the arguments made by the learned counsel appearing for the applicant, at highest what can be stated is that another conclusion could have been drawn by the learned trial Judge. However, that is no ground to interfere. No case is made out for grant of leave. Application is rejected. It is however made clear that observations made in this order are only for a limited purposes for considering the prayer for grant of leave and none of the observations shall be construed as adjudication on the title of the parties. (11) (A.S.Oka,J)