SHRIKRISHNA GANGADHAR JOSHI Vs. VIJAY KRISHNAJI LIMAYE

JUDGEMENT

(1.) THE petitioner against whom Criminal Case No.26/s/92 has been filed by the Respondent No.1 in the Court of the Metropolitan Magistrate, 5th Court, Dadar, Bombay for prosecution under Section 24 (4) of the Bombay Rent Control Act has preferred this Revision Application challenging the order of the learned Trial Magistrate dated 11th September 1992 rejecting the application of the petitioner dated 9th March 1992 for his discharge.

(2.) THE complaint came to be filed in the learned Magistrate's Court on 9th January 1992 by the Respondent No.1 alleging that the petitioner had cut off the electricity to the cabins which were in his occupation. Pursuant to the said private complaint filed in the Magistrate's Court the report was called for from the police. After the report was filed, the learned Magistrate was satisfied that there was a prima facie case and, therefore, the process was issued under the aforesaid provisions of the Rent Act against the petitioner-accused. THE provision of electricity is an essential amenity and the landlord is prohibited from cutting off or withholding any essential supply or service enjoyed by the tenant in respect of the premises let out to him without any just cause. THE petitioner filed application dated 9th March 1992 before the learned Magistrate for discharge on the ground that the particulars of the offence were not given and secondly on the ground that the relationship of landlord and tenant is not established.

(3.) IT is the said order which is challenged in this Revision Application. Mr. Dani, learned Advocate appearing on behalf of the petitioner-landlord mainly contended in this revision application also that the relationship of landlord and tenant is not established and unless it is shown, the complaint itself is not maintainable. He tried to rely on the same statements which were relied on in the previous proceedings on behalf of the petitioner before the trial Magistrate. IT is well established that in order to uphold the maintainability of the criminal complaint what is to be seen is whether the complaint itself makes out a prima facie case or not which in my view has been sufficiently done in this matter. The opening sentence of paragraph 2 of the complaint states as follows : " The accused Shrikrishna Joshi is the landlord of the premises and he has given me the premises in 1976 on rent. " The said averment was sufficient to entertain the complaint. IT is only at the trial that the accused landlord will be able to destroy the said averment in the complaint by leading evidence. IT would not be possible to decide this question on the basis of affidavits raising rival contentions by the opposite parties. Even the contentions raised by both the sides have been considered by the trial Magistrate and, thereafter, he was of the view that the complainant had prima facie established that he was tenant in respect of the premises in question. The said finding cannot be faulted at this stage but the said finding, as stated by the trial Magistrate himself at the fag end of para 7 of the impugned judgment is "prima facie" finding. This would mean that it will be open for the petitioner -landlord to establish at the trial that no relationship of landlord and tenant existed between the petitioner and the complainant.