INDU PATHARIA AND ORS Vs. RAKESH KUMAR

JUDGEMENT

(1.) Petitioners, Indu Patharia, Ajayvir Patharia, Ashutosh Patharia, Dharamvir Chopra, Bhavay Chopra, Ram Gopal and Seema, have filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), for quashing Complaint No. 199/08 dated 23.5.2008 (Annexure P/1) filed against them by Rakesh Kumar, Respondent/complainant and the summoning order dated 13.2.2009 passed by the Additional Chief Judicial Magistrate, Sonepat.

(2.) It has been pleaded in the petition that Petitioners No. 1 and 2 are husband and wife, Petitioner No. 3 is their son, Petitioner No. 4 is their son-in-law, Petitioner No. 6 is their next door neighbour and Petitioner No. 7 is their daughter. Petitioners No. 1 to 3 are senior citizens. Respondent is the neighbour of Petitioners No. 1 and 2 and there was a common boundary wall between their houses. Being a property dealer, the Respondent has developed close ties with musclemen, social outcastes and his elder brother is practicing Advocate in the District Courts at Sonepat and handling his unfinished business. Petitioners No. 1 and 2 purchased this house in the year 1985 from one Surender Kumar Arora, who had obtained the same from his father by virtue of the decree dated 15.4.1985. The Respondent had an eye on 26 sq. yards piece of their plot situated on the western side and had encroached upon that part of the plot on 9.3.2008, after demolishing the common boundary wall. They tried to reason with the Respondent by showing their title deed and the site plan but all in vain. When the peaceful method to resolve the dispute failed, Petitioner No. 2 got FIR registered against the Respondent under Sections 447, 427 and 506 IPC at Police Station Civil Lines, Sonepat. The police inspected the place of occurrence and took the photographs. The Respondent got enraged on account of the registration of the FIR and started hurling abuses and throwing brickbats at their house. Fearing for their safety, they moved applications to various authorities for permission to erect a new wall in place of the demolished wall and for providing police protection for doing so. One such application was moved before the Deputy Commissioner, Sonepat, which was forwarded to Superintendent of Police for appropriate action. They got their boundary wall re-constructed under police protection on 13.4.2008. The complainant realizing that things were slipping out of his hands, filed the above said false, frivolous and vexatious complaint against all of them, in which they were summoned by the Additional Chief Judicial Magistrate, Sonepat, for the offences under Sections 427, 448, 506/149 IPC, vide order dated 13.2.2009. The dispute is of civil nature which has been given a criminal flavour, in order to pressurize Petitioner No. 1 to accept the demands of the Respondent. A civil suit based on the same set of facts is already pending between them in which status quo order has been passed. Even if the averments made in the complaint are taken to be true on its face value, no offence is made out against them. This complaint is a counter-blast to the said FIR, which was filed after two months of the registration of that FIR and about 40 days of the alleged occurrence. Conscious efforts have been made to rope in each and every family members of Petitioner No. 1 and even the neighbour has not been spared. All this depicts, the malafide of the Respondent. Petitioners No. 1 to 3 are not physically capable of doing the acts which have been attributed to them.

(3.) On notice of motion having been issued, the Respondent appeared and submitted his reply. He contended therein that the total area of the plot No. 94-R and 94-L is 665 sq. yards, but Surender Kumar Arora and his father sold 700 sq. yards to Petitioners No. 1 and 2 and one Jugal Kishore Juneja, though at the spot only 665 sq. yards of land was available, which was allotted by the Custodian Department to the original owner Lakshman Dass. There was dry toilet measuring 6'.6" x 5' x 6" on the western boundary of his house, adjacent to the boundary of Petitioners No. 1 and 2 and the rest of the boundary was secured by barbed iron wire. The Petitioners tried to forcibly occupy 25 sq. yards of the land from his house/plot by demolishing their pacca latrine and removing the barbed iron wire fencing. It was in respect of that act of the Petitioners that he filed the complaint in which correct facts have been given. Petitioner No. 1 by using his resources and by way of undue influence got registered FIR dated 17.3.2008. Under the garb of that FIR, all the Petitioners used their influence over the police and local authorities to construct a wall inside the