NARESH CHANDRA MOHANTY Vs. MILLAN KUMAR BADU

JUDGEMENT

(1.) THIS CRLMC arises out of a petition filed under Section 482 of Cr.P.C. wherein the petitioner has prayed for quashing the complaint petition in I.C.C. case No. 243 of 1996 pending in the Court of J.M.F.C., Cuttack.

(2.) THE petitioner is the accused and the opp. party is the complainant in the aforesaid case. As per the complaint petition, one Agani Sahoo leased out Plot Nos. 855 -Ac.022, 856 -Ac. 0.11, 857 - Ac. 0.24 and 858 -Ac. 0.06 decimals with total area of Ac. 0.68 decimals appertaining to Hal Khata Nos. 2185 and 2187 corresponding to C.S. Khata No. 130 situated in mouza Kusunpur (Etmaran bazaar) under Purighat Police Station, Cuttack with a building and some thatched houses to the accused. The complainant purchased the said land with structure standing over it through a registered sale deed on 5.8.1996. After selling the said land along with structure standing over it, Agani Sahoo sent a registered letter to the complainant intimating him that he was no more his landlord in respect of the aforesaid land along with the structure over it, but it was returned with an endorsement 'Absent since long'. The complainant who is an advocate being in need of accommodation for residential purpose as well as for his chamber sent a notice under Section 441 I.P.C. by registered post with A.D. to the accused to vacate the aforesaid land with structure within one month from the date of receipt of the notice. In spite of receipt of notice he did not respond to it. So the complainant lodged an F.I.R. against the accused at Purighat Police Station. As no action was taken, he filed the aforesaid complaint case before the Court of S.D.J.M. (Sadar), Cuttack to take action for the offence under Section 448 I.P.C. against him. The S.D.J.M., after recording initial statement of the complainant took cognizance of the offence under Section 448 I.P.C. against the accused and transferred the case to the Court of J.M.F.C., Cuttack.

(3.) LEARNED Counsel appearing for the accused/petitioner submitted that as per the complaint petition Agani Sahoo had leased out the aforesaid land along with the structure over it to the accused -petitioner on monthly basis. He further submitted that said Agani Sahoo entered into an agreement with the accused to sell him the aforesaid land along with the structure after his return from abroad. On return, when he did not execute the sale deed in favour of the accused/petitioner, he filed Title Suit No. 276 of 1996 before the Court of Civil Judge (Senior Division) First Court, Cuttack for specific performance of contract. Simultaneously he also filed a petition under Order 39 Rule 1 and 2 C.P.C. for injunction. However, the trial Court passed order to maintain status quo ante in respect of the disputed land with structure over it. While the status quo order was in force the complainant being fully aware of the said order purchased the said land with structure. So, the accused/petitioner made him a party in the suit as lis pendense purchaser. He further submitted that the complainant/opposite party, after being made a party in the suit filed a counter claim against the accused/petitioner praying for delivery of possession of the disputed property in his favour. The accused/petitioner filed another petition under Order 39 Rules 1 and 2 C.P.C. with a prayer to restrain the complainant/Opp. Party from creating any disturbance in his peaceful possession over the disputed property. The learned Civil Judge held that there was a prima facie case in favour of the petitioner, balance of convenience leaned in his favour and that he would sustain irreparable loss if the injunction order was not passed in his favour. But he rejected the petition observing that since the Opp. Party therein (complainant/opposite party) is an advocate he would not create disturbance in the peaceful possession of the accused/ petitioner over the said property. Being aggrieved with this order the accused/petitioner preferred Misc. Appeal No. 100 of 1998 before this Court wherein it was ordered that the complainant/opposite party would not forcibly evict the accused/petitioner from the disputed property and that the latter would pay Rs. 500/ - per month towards rent to the former. Accordingly, he was paying the same. The petitioner entered the disputed premises and the appurtenance thereto lawfully. So, the learned Counsel for the accused/petitioner submitted that the petitioner cannot be liable for the offence under Section 448 I.P.C. In support of his submission he relied upon a Division Bench decision of this Court in Akapati Bhaskar Rao v. Trinath Sahu and Anr. Per contra, learned Counsel appearing for the Complainant/Opp. party submitted that after Agani Sahoo sold the disputed land with the structure to the Complainant/Opp. party he issued a notice to the accused/petitioner indicating that he was no more his landlord in respect of the disputed property and requested him to contact the Opp. party/Complainant. Since he deliberately avoided to receive notice the Complainant/opp. party issued him a notice under Section 441 I.P.C. as amended by the Orissa Act 22 of 1986 to vacate the aforesaid land with structure within one month of receipt of the said notice. When the said premises with appurtenance were not vacated he filed the complaint case. As per the submission of learned Counsel for the complainant/ opp. party the accused/petitioner entered the disputed premises lawfully but after receipt of the notice sent by Complainant/opp. party when he did not vacate possession of it his possession therefrom became illegal. So, the trial Court rightly took cognizance under Section 448 I.P.C. against the accused/petitioner. He further submitted that he petitioner lost the Title Suit No. 276 of 1996 and preferred an appeal before this Court, which is subjudice. Even if the appeal is pending there is no bar to proceed with the I.C.C. case No. 243 of 1996. In support of his submission he relied upon the decisions 'Commissioner of Income Tax, Mumbai v. Bhupen Champak Lal Dalal' : [2001]2SCR178 and State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. and Ors. 1996 (I) O.L.R. (S.C.) 411.