ANIL MADHOK Vs. PREM MAINI SYNDICATE BANK

JUDGEMENT

(1.) THIS writ petition is filed under section 482 of Criminal Procedure Code to quash and set aside the complaint filed by Respondent No. 1 against the Petitioner alleging offence under sections 420, 300, 341 and 451 of indian Penal Code. The Petitioner is Vice President of the oberoi Group of Hotels having its office at Hotel Oberoi towers, Bombay 400021 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 co-operation 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 committed by the petitioner inasmuch 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 section 420 and section 451 of Indian Penal Code. 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.) THE learned Counsel for the petitioner submits that the said complaint does not disclose the offence as alleged in the complaint and the complaint suppress certain material facts that the civil dispute is pending between the parties and if these materials were disclosed in the complaint, the magistrate would not have issued process against the petitioner. In order to substantiate the fact that the material facts have been suppressed in the complaint before the Magistrate, the petitioner produced documents and correspondence sent between the parties from 17th September, 1984 to 14th August, 1990. The petitioner also produced along with writ petition a copy of the plaint filed by 1st respondent, as Civil Suit No. 2735 of 1990 against the petitioner. It is disclosed from these documents that the civil dispute was going on between the parties and just after filing complaint before the Magistrate, the 1st respondent has filed abovementioned suit.