N C SHAH Vs. PREMCHAND SURAJSINGH KURMI

JUDGEMENT

(1.) Smt. D.J. Khera for the petitioner and none appeared for the Respondent no.1 and Shri Dinesh Adsule A.P.P. appeared for the State.

(2.) A process had been issued by the learned Magistrate, 43rd Court, Borivali, Bombay against the petitioner under section 437 r/w, 114 of the I.P.C. on a complaint made by the first respondent. The first respondent alleged in his complaint before the Magistrate that he had purchased a shop for running grocery store, which is situated at Motilanagar no.1, Opp: B.E.S.T. depot, Goregaon (W), Bombay in the name and style of 'Hemant Stores'. It alleged in the complaint that on 25-3-1989 at about 11-30 a.m. the petitioner came to the shop and called out the respondent no.1 and their servants from out of the shop and as soon as they came out, the petitioner have ordered the staff of the B.M.C., to demolish the said shop and thereby committed the offence. He further alleged in the complaint that there was no notice issued before demolition of the building.

(3.) I have examined the pleadings contained in the complaint as well as the writ petition It is disceivable from these materials that the petitioner while discharging their official duty demolished the building. The allegation of the petitioner that the shop in question was constructed unauthorisedly. Moreover, it is found that the averment about the ownership of the shop as pleaded by the first respondent is quite vague. Therefore I feel that the complaint is filed as a counterblast for having demolished the building unauthorisedly constructed, at the instance of the petitioner. Apart form that the complaint is filed without considering the legal consequence of Sec. 521 of B.M.C. Act. The process issued therefore has to be held as an abuse of the jurisdiction of the court. In view of this the complaint is liable to be quashed.