ANIL MADHOK Vs. PREM MAINI

JUDGEMENT

(1.) THIS writ petition is filed under Sec. 482 of Cr. P. C. to quash and set aside the complaint filed by Respondent No.1 against the Petitioner alleging offence under Sec. 420, 300, 341 and 451 of I. P. C. The Petitioner is Vice President of the Oberoi Group of Hotels having its office at Hotel Oberoi Towers, Bombay 400 021 which hotels are owned by the East India Hotels Ltd. which is a public limited company. The first respondent is the Assistant General Manager of the Syndicate Bank, International Division, having its office at Maker Tower, Cuffe Parade, Bombay. It is the case of the first respondent, that first respondent was occupying premises situated on the Mezzanine floor approximately 15000 sq. ft. on leave and licence basis. A fire has taken place on 12th April, 1990 whereby the said premises which was under the use and occupation of the 1st respondent got damaged. As a result, the equipment, furnitures and records of the 1st respondent were partially damaged. Immediately after the fire, the representative of the 1st respondent were permitted by the Fire Brigade Authorities to enter into the said premises to take away the records of the bank from the premises and also to enable the surveyor to take survey so as to assess the loss and damage sustained by the first respondent bank. At the time of fire, as a temporary measure, the employees of the first respondent were shifted to various offices of the bank. On 14th June, 1990, it is alleged that Mr. Babu Rajan of first respondent bank had a discussion with the petitioners, and petitioners agreed that they would extend all possible cooperation to the bank taking away absolutely essential records from time to time from the said premises and also facilitate to conduct insurance survey. It is further alleged that at that time, representation was made by the petitioner that in order to carry out the work of the repairing of the damaged premises, the bank should hand over the duplicate key of the bank premises. Believing in the said promise or representation, the complainant handed over duplicate key of the bank to the petitioner. Subsequently on 23rd July, 1990 the petitioner informed the bank that they have removed the furniture and records of the bank from the said premises to the basement of the Oberoi Tower and called upon the first respondent to remove the said furniture and record from the basement of the hotel premises on the plea that the fire hazard was also there in the basement of Oberoi Hotel. THIS act of the removal of the furniture records etc. which was in exclusive possession of the bank was termed as offence commited by the petitioner in as much as they were removed dishonestly and without the knowledge and consent of the 1st respondent. It is also alleged in the complaint that the petitioner, by letter dated 25th July, 1990 informed the 1st respondent that the petitioner is not going to give back the possession to the bank. According to 1st respondent, this breach of promise by the petitioner constituted an offence under Sec. 420 and Sec. 451 of I. P. C. With these allegations, the 1st respondent approached the Magistrate. The Magistrate taken cognizance of the same and issued process which has been challenged in this writ petition.

(2.) I heard counsel for the petitioner Mr. Kamdar with Shirish Gupte and Shri Dharmadhikari for the 1st respondent. I also heard Mr. Thakur learned A. P. P. for State.

(3.) ON examining the complaint I am of the opinion that there was a breach of promise made by the petitioner. That the duplicate key of the Bank premises was given to the Petitioner on the premise that the key was required for carrying out the repairing work of the damaged premises and thereafter to hand over the premises to the Bank. This allegation, if at all proved, is nothing but the breach of promise and no criminal element is involved in this case, particularly in the light of the correspondence that was going on between the parties before filing of the complaint. The learned counsel for the 1st respondent submits that the offence of cheating has been disclosed in the complaint. He submits that after handing over the key, the petitioner took up the stand that the possession of the building will not be given back to the 1st respondent. This allegation has to be examined in the light of the observations made by the Supreme Court in Madhavrao Scindia and another Versus Sambhajirao Chandrojirao Angre and others reported in AIR 1988 Supreme Court, 709. The Supreme Court has held in Paragraph 7 as under : "7.The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. "