VINAYAK LAXMAN VARTAK Vs. LAXMIDAS VITHALDAS GANATRA

JUDGEMENT

(1.) PETITIONER, who is accused No. 2 in Criminal Case No. 434/p of 1985 pending in the Court of the Metropolitan Magistrate, 4th Court at Girgaon, Bombay, has brought this petition to quash the issue process order against him.

(2.) RESPONDENT No. 1 has filed a complaint in the Court of the afore-mentioned Magistrate ascribing to accused No. 2 and one Amin Hassan the commission of offences punishable under section 288, 403 and 406 read with section 114 of the Indian Penal Code. His case, briefly stated, is that he is a tenant of a building known as Kishor Bhavan situated at 29, Vithalbhai Patel Road, Bombay 400 004. The Bhavan is divided into two parts-one facing the road and the other to its rear. The two parts are separate and distinct. Complainant resides on the front side of the Bhavan on the ground floor. Accused No. 1 is the partner of a firm carrying on the business of Building Contractors and accused No. 2 is a Consulting Engineer. The Maharashtra Housing and Area Development Act empowers the authority to carry out repairs to buildings in a dilapidated and dangerous condition. The front side of the Bhavan was in a sound condition and did not require major repairs. The representations made by the tenants to the rear part of the Bhavan had the desired effect and the Authority as also the Bombay Municipal Corporation (BMC) directed the carrying out of certain repairs to the building. The Contractor, with ulterior motives, despite the limitation not to touch the front side, started carrying out repairs to that part of the building which faced the Vithalbhai Patel Road. To enable the carrying out of repairs, overhead water storage tanks were pulled down and the terrace demolished. The work being done by the Contractor was not upon the mark and the material used therein was substandard as also inadequate. Valuable parts of the building were removed and misappropriated by the first accused through his servants and labourers. Complainant and the association of tenants addressed several letters to the Authority complaining of the defects and incomplete work carried out by accused No. 1. The second accused was requested not to sanction the bills submitted by the first accused. No heed was paid to the warnings of the complainant. As a result, accused had committed offences punishable under sections 403 and 406 as also 288 read with 114 of the Indian Penal Code. The Magistrate took cognizance only under section 288 read with 114 of the Indian Penal Code and directed the issue of process to both the accused.

(3.) THE accused No. 2 submits that section 288 of the Indian Penal Code is not attracted to the facts of the present case. To appraise this contention it will first be necessary to set out the relevant portion of the said section:---