ABDUL SAMAD Vs. MD QUMRUDDIN

JUDGEMENT

(1.) IN the instant criminal revision, the petitioner challenges the order dated 20th January, 2007 passed the j. M. F. C. , Rajgangpur in I. C. C. No. 19 of 2006 framing charge under S. 448, I. P. C. against him.

(2.) THE case of the complainant-opposite party No. 1 is that the petitioner is the tenant of a shop room, which had fallen to his share. An agreement was executed on 21-4-2003 on the basis whereof vacant possession of the shop room was handed over to the petitioner for a period of three years subject to the terms and conditions contained therein. It has been further alleged that the complainant asked the petitioner to handover the vacant possession by a lawyer's notice dated 3-3-2006 to which the petitioner submitted a reply through his lawyer making it clear that he did not want to handover the vacant possession to the complainant. The complainant then sent a legal notice through his advocate on 19-6-2006 terminating the tenancy with effect from 1-7-2006. The notice was duly received by the petitioner on 22-6-2006. Since in spite of such notice, the petitioner did not handover the possession on 1-7-2006, the complaint petition was filed. The learned Magistrate, after due enquiry under S. 202, Cr. P. C. , took cognizance and issued summons to the accused-petitioner. After his appearance, charge has been framed under S. 448, I. P. C. on 20-1-2007.

(3.) COUNSEL for the petitioner submitted that the petitioner, after entering into an agreement with the complainant, took possession of the shop room in question. By an advocate's notice dated 3-3-2006 the complainant asked him to handover the vacant possession on expiry of the tenancy. The accused-petitioner through his advocate replied thereto that he did not want to give vacant possession of the shop room to the complainant. Again, the complainant gave a notice of termination. He further submitted that the agreement between the parties dated 21-4-2003 stipulated that the first party should issue three months' prior notice to the second party to vacate the shop. But the complainant had threatened the accused-petitioner and asked him to pay Rs. 1,50,000/- as security and rent of Rs. 15,000/- per month. He further submitted that under S. 441, I. P. C. , law is well settled that the complainant must establish the continuance in the premises by the accused of the offence of taking unauthorised possession or making unauthorised use of it. In the present case, such fact has not been established by the complainant either in his complaint or in his initial statement before the Court or through evidence of his witnesses. Therefore, the order of framing charge is illegal and liable to be quashed. Per contra, learned counsel for opposite party No. 1 vehemently contended that the petitioner failed to handover the vacant possession to opposite party No. 1 after due notice. Thereafter, the complaint case was instituted against him and after due inquiry processes were issued against the accused-petitioner. After appearance of the accused-petitioner, by the impugned order, charge has been framed under S. 448, I. P. C. , which does not call for any interference.