NANDAN VASANT PILGAONKAR Vs. NARENDRA Y THALY

JUDGEMENT

(1.) THIS petition has been filed by the petitioner/original accused no. 1 assailing the Order of the Additional Sessions Judge, Panaji, in Criminal Revision Application No. 52 of 2000, decided on 4th May 2001, dismissing the revision filed by the petitioner/accused no. 1 challenging the rejection of his application for recall of process by the Order of the learned Judicial Magistrate, First Class, Panaji, dated 5th July, 2000.

(2.) THE complaint/case came to be filed by the present respondent/complainant, which was registered as Private Criminal Case No. 40/98/b, in the Court of the Judicial Magistrate, First Class, Panaji. THE said complaint/case was filed alleging the commission of the offences under Sections 447, 453, 506 Part II and 341 of the Indian Penal Code. On the filing of the said complaint, the learned Judicial Magistrate, First Class, Panaji, held an inquiry under Section 200 of the Criminal Procedure Code and recorded the statements of the complainant Narendra Thaly and P. W. 2 Nanda Mohankrishna Naik. THE learned Magistrate thereafter, taking into consideration the material that was available against the accused, held that there was a prima facie case for issuing process under Sections 453 and 341 of the Indian Penal Code against the petitioner/accused no. 1 only. THE other person, one Ronald Pinto, who was arraigned as accused no. 2, was discharged as the learned Magistrate found that there was no material against the said Ronald Pinto for issuance of process. THE learned Magistrate also found that there was no material for issuing process against the petitioner for an offence punishable under Section 506 of the Indian Penal Code. This Order of the learned Magistrate, dated 17th November, 1999, issuing process against the petitioner/accused no. 1 was sought to be recalled by the present petitioner, after he was served with the summons, by filing an application for recalling of process. In the application for recall of the process what was averred by the petitioner/accused no. 1 was that a Special Civil Suit No. 34 of 1998/b had been filed by the respondent/complainant seeking specific performance of an agreement dated 15th March 1995. In short what was contended before the learned Magistrate was that the dispute before the learned Magistrate, as stated in the complaint, was essentially a dispute of civil nature which had been deliberately spiced by the respondent/complainant for giving it a flavour of a criminal offence. THE learned Magistrate, after hearing the parties, by his Order dated 5th July 2000 rejected the application for recall of the process.

(3.) IT was then averred in the complaint that after the possession of the flats had been delivered to the respondent/complainant, the respondent/complainant gave the said three flats on leave and licence to Shri C. S. Ramesh, N. M. Shenoy and Rakesh Faria. The respondent/complainant then averred that on 26th October 1997 at about10. 30 a. m. Shri N. M. Shenoy alongwith the other two tenants came to the respondent/complainant's residence and informed him that on 25th October 1997 at about8. a. m. the petitioner/accused no. 1 had visited the said three flats and had commanded the said three persons to vacate the flats by 26th October 1997, failing which the petitioner/accused no. 1 had threatened that he would get goons on them and visit them with dire consequences. The three tenants also informed the respondent/complainant that apprehending danger to their lives, they had locked the said flats and had brought the keys for delivering them to the respondent/complainant. The respondent/complainant then accompanied by the three tenants went to inspect the said three flats. When he went to inspect the said three flats, what he found is stated in the complaint as reproduced below: - However, when the complainant reached the said flats he, Mr. Shenoy and his other colleagues were shocked to observe that the back doors of the said flats were broken open and 5 persons led by a person who later on identified as Mr. Ronald Pinto of Shadows Detectives Pvt. Ltd. , (Accused No. 2) had taken possession of the said flats. When told that the flats belonged to the complainant, the said Ronald Pinto informed the complainant that accused no. 1 had taken possession of the flats and employed him and others of Shadows Detectives Pvt. Ltd. , with orders not to allow any one to enter the said flats including the complainant. The said Pinto and others were carrying weapons of assault.