M A MOHAMED ALI Vs. R RAMADOSS

JUDGEMENT

(1.) PETITIONER M. A. Mohamed Ali has been convicted under S. 448 I. P. C. and sentenced to pay a fine of Rs. 200, in default simple imprisonment for two months, and an order under S. 522 Crl. P. C. Has also been passed directing restoration of possession of the bungalow occupied by the petitioner to the respondent-complainant. The complainant's case was that he had leased his bungalow No. 117, Scheme Road, Mahalingapuram, Nungambakkam, to P. W. 2 M. G. Menon on 5-6-1965 on a monthly rent of Rs. 350, that P. W. 2 M. G. Menon intimated on 14-6-1965 that he wanted to vacate the bungalow as he was ill and actually vacated the bungalow on 20-6-1965 and that the petitioner who was allowed to remain in a portion of the bungalow as a guest refused to vacate the bungalow. On the other hand, the case of the petitioner was that he occupied the bungalow only as a tenant under the complainant and that he allowed P. W. 2 to remain as a guest in a portion of the bungalow. The petitioner has examined himself and three other witnesses in support of his case.

(2.) ON an examination of the evidence in this case, I have no doubt that the petitioner took the bungalow on rent from the complainant. One strong circumstance is the fact that he has obtained receipt Ex. D. 1 admittedly granted by the respondent for having received advance. There is also no good reason for disbelieving the evidence of the petitioner and his witnesses. There can be no doubt that the complainant has used the device of filing a complaint in the criminal court to get possession of the bungalow instead of going to the Rent Controller. The story of the complainant that P. W. 2 came as a tenant on 5-6-1965, got ill and wanted to vacate the bungalow within ten days on 14-6-1965 could hardly be believed. There is no reasonable explanation as to how the receipt Ex. D. 1 came to the possession of the petitioner, if really it was given to P. W. 2. There can be no doubt that the complainant has taken advantage of the fact that he has not mentioned the name of the petitioner in the receipt Ex. D. 1 to plead that he gave it to P. W. 1. But it is unnecessary to base the decision in this case on the above findings which one can easily arrive at on a perusal of the evidence in this case.

(3.) IT is unfortunate that this case has been transferred by the learned Chief presidency Magistrate to a Special Honorary Presidency Magistrate for trial. This court has given repeated instructions that cases like criminal trespass ought not to be transferred to Honorary Presidency Magistrates for trial as they cannot be expected to clearly understand the distinction between civil and criminal trespass. One has to read only the complaint and the sworn statement to come to the conclusion that there is no criminal trespass, and in fact, if the case had been handled by a Stipendiary Presidency Magistrate, he would have dismissed it under s. 203 Crl. P. C. In the complaint, the respondent has stated that the petitioner was in illegal and unauthorised occupation of the premises and that when he questioned him, the petitioner abused him and threatened to use force against him if he dared to interfere with his occupation. It should be noted that the evidence of P. W. 2 is that the petitioner came to occupy the bungalow lawfully as a guest, and hence there can be no question of unauthorised or unlawful occupation of the bungalow. There is no averment in the complaint that the petitioner had the necessary mens rea required for criminal trespass under S. 441 indian Penal Code. In the sworn statement the complainant has stated that the petitioner was not his tenant, that he got in unlawfully and that he threatened him. The evidence of the complainant, Decree. Ramadoss, P. W. 1, is equally unsatisfactory, as there is nothing in the evidence to show that the petitioner had the necessary means rea required for criminal trespass. When the complainant was examined on 12-81965, his complaint seems to be that the petitioner had not vacated the bungalow and he was illegally occupying it. Even when he was subsequently recalled and examined as a defence witness, on 8-10-1965, he did not state that the petitioner continued to remain in the bungalow unlawfully with intent to commit an offence or to intimidate, insult or annoy him. P. W. 4 Raghavan deposed that the petitioner said that he will neck out P. W. 1, the complainant. But even if that statement is true it would not show that the petitioner used any force. The alleged threat mentioned in the complaint was a conditional one, namely, that he will use force in case the complainant interfered with his occupation of the bungalow; thus, even if the petitioner was only a licencee as would appear from the evidence of P. W. 2, he cannot be convicted of criminal trespass. But if, as already pointed out by me, the petitioner is really a tenant of the complainant, the complaint was totally unjustified as it would not only be false but frivolous. The conviction of the petitioner for criminal trespass cannot be justified. The conviction and the sentence of fine are, therefore, set aside.