MODERN BOOK DEPOT Vs. ASWINI HANS

JUDGEMENT

(1.) This is an application filed under section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as "the Code) to quash the order dated 18.02.2006 of taking cognizance of offence; under Section 447 of the Indian Penal Code (in short 'the IPC') passed by the learned Sub-divisional Judicial Magistrate, Bhubaneswar in I.C.C. No.475 of 2006 and issuance of process against the present petitioners.

(2.) Mr. Pattnaik, learned Counsel for the petitioners submitted that Section 447 IPC would not apply to the facts and circumstances of the present case as the dispute, involved in this writ petition, is civil in nature. According to him, C.S. No.195 of ;2005 was filed by the present party before the learned Civil Judge (Senior Division), Bhubaneswar against the petitioners for eviction but the same fact has not been stated in the complaint for which the same is liable to be rejected.

(3.) Mr. Pattnaik, learned Counsel for the petitioners further submitted that the complainant is not the absolute owner of the shop room in question but a co-owner for which the proceeding at his instance only is not maintainable. According to him, the Orissa Amendment of Section 447 of the IPC is not attracted in this case because the petitioners have been regularly paying the rent but the complainant is refusing to receive the same. Since the learned Magistrate has not applied his judicial mind while passing the order of taking cognizance, the same should be quashed.