Delhi District Court
Hardev Dohil vs State on 3 October, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Rev. No.29/12
Hardev Dohil .........Petitioner
Versus
State ..........Respondent
J U D G M E N T
Present revision petition has been filed on 02.07.2012 challenging order dt.26.03.2012 passed by learned Metropolitan Magistrate - 01 (Central), Tis Hazari Court passed in case FIR No.270/07 PS Parsad Nagar.
2. Vide impugned order, learned Trial Magistrate observed that prima facie case for offence U/s 453 IPC is made out against accused from the charge sheet and evidence of the witnesses recorded U/s 161 Cr.P.C. Accordingly, notice for the said offence was served upon the accused.
3. Case FIR No.270/07 came to be registered on the complaint of Sh. J.S. Kapoor, a trustee of S. Mela Singh Kapoor Family Trust, 11 Patel Road, Patel Nagar, New Delhi addressed to SHO PS New Rajinder Nagar. In the complaint, it was alleged that the accused - petitioner forcibly took possession of Flat no. 413/414 situated on the 4th floor, Dohil Prem Sadan, Rajendra Place, New Delhi Crl. Rev. No.29/12 1 by breaking open locks of the complainant.
4. In brief, it is case of the complainant that he took possession of the aforesaid flat after payment of entire sale consideration to M/s. H. Dohil Construction Company (P) Ltd. At that time, the flats were unfit for use for want of electricity connection and other amenities, although the vendor had assured to provide these facilities in the near future. Vide letter dt.16.03.06 complainant - respondent herein is alleged to have put forth demand of Rs. 3,15,000/, but he (complainant) refused to make this payment and sent reply dt. 24.04.06 making it clear that nothing was payable by him, maintenance having never been carried out by the company. Thereafter, the aforesaid company sent letter cancelling allotment of flats. Vide reply dt.22.05.06 the complainant communicated to the aforesaid company once again that he had no liability and further that the building was lying vacant being unfit for use for want of electricity and other amenities. Complainant also requested for referral of the dispute between him and the aforesaid company to the arbitrator. However, the accused - petitioner started threatening with forcible dispossession.
It is case of the complainant - respondent that he filed a petition U/s 9 of Arbitration & Conciliation Act before Hon'ble High Court whereupon vide order dt.01.06.06 Hon'ble High Court restrained the accused - petitioner herein from taking forcible possession of the flats or from alienating or creating any third party interest in the flat. However, the accused - petitioner took forcible Crl. Rev. No.29/12 2 possession of the flats by breaking open locks of the complainant.
Vide impugned order learned Trial Magistrate ordered for framing of notice and accordingly served notice for the accused - petitioner for offence U/s 453 IPC hence this petition.
5. Arguments heard. File perused.
6. In the course of arguments, learned counsel for petitioner contended that no prima facie case for offence U/s 453 IPC is made out against the accused and that impugned order deserves to be set aside. In support of his submissions, learned counsel has referred to paras 28 & 29 of the agreement between M/s. H. Dohil Construction Company (P) Ltd. and under the agreement the promoters of the company was entitled to reenter upon and resume possession of the flat where buyer neglected, omitted or failed for any reason whatsoever to pay to the promoter or TDSM any amount due and payable by the buyer under the terms and conditions of the agreement (where before or after delivery of possession) on or before the respective due date thereof, time being the essence of the contract.
As further submitted by learned counsel for petitioner, notice dt.16.03.06 was sent by the construction company to the complainant while referring to previous letter dt.06.04.98 and thereby, calling upon him to clear all dues before 15.04.06. A total sum of Rs.3,12,325/ was due as on that date. It has been submitted that since the complainant failed to comply with notice, the company Crl. Rev. No.29/12 3 was justified in reentering the premises. Learned counsel for petitioner has also referred to letter dt.17.05.06 and 01.06.06 from M/s. Dohil Construction Co. to the trustee of the complainant.
On the other hand, Learned Addl. P.P. has referred to order dt.01.06.06 passed by Hon'ble High Court in OMP NO.261/06 titled as S. Mela Singh Kapoor Family Trust Vs. M/s. H. Dohil Construction Company (P) Ltd. & ors. and submitted that since M/s. H. Dohil Construction Company (P) Ltd. respondent no.1 & another - respondent no.2 M/s. Dohil Prem Sadan Management Co. were restrained from taking forcible possession of portion of Flat no.413/414 situated on the 4th floor, Dohil Prem Sadan, Rajendra Place, New Delhi and also from selling, alienating, dispossessing and / or creating any third party interest in these flats, the respondents could not reenter the premises at all.
The allegation levelled by the complainant is that although the order dt. 01.06.06 was in force, the accused took forcible possession Flat no.413/414 situated on the 4th floor, Dohil Prem Sadan, Rajendra Place, New Delhi, while breaking open the locks.
Learned counsel for petitioner has submitted that prescribed period of limitation for taking cognizance of an offence U/s 453 IPC is two years whereas prescribed period for taking cognizance of offence U/s 448 IPC is one year, but herein the challan was put in court on 06.05.08. It has been contended that since Crl. Rev. No.29/12 4 offence is alleged to have been committed in June,06, learned Metropolitan Magistrate could not take cognizance of the offence when challan came to be presented after the prescribed period of one year. Therefore, contention is that petition deserves to be allowed.
7. A perusal of order dt.01.06.06 passed by Hon'ble High Court in OMP No. 261/06, would reveal that the Hon'ble Judge issued following directions in the said petition while observing in the manner as : "Having heard learned counsel for the petitioners and scrutinized the documents placed on record, I am of the view that the petitioners have made out a prima facie case in their favour. The balance of convenience is in favour of the petitioners, who have been in possession of the flats in question ever since the year 1999 without any dispute having been raised by the respondents. Irreparable injury is also likely to be caused to the petitioner no. 1 trust if it is dispossessed from the flats in question. Any delay in the matter may also result in defeating the purpose of passing an injunction order.
In this view of the matter, till the next date of hearing, the respondents no.1 & 2, their agents, employees and other persons working on their behalf, are restrained from taking forcible possession of the flats bearing no.413 & 414, 4th floor, Prem Sadan, Rajendra Place, New Delhi and are further restrained from selling, alienating, disposing of and / or creating any third party interest in respect of the said flats, subject however to the condition that the petitioners in order to secure the interests of the respondents shall deposit in this Court a sum of Rs.3,15,000/ (rounded off) by way of a cheque drawn in the name of the Registrar General, High Court of Delhi. The said amount shall be kept in the fixed deposit receipt initially for a period of three months.
The petitioners shall comply with the provisions of Order XXXIX Rule 3 CPC within three days."
It has been submitted by counsel for the complainant that the amount was deposited by the complainant before the Hon'ble High Court in terms of the Crl. Rev. No.29/12 5 aforesaid order.
8. In view of the directions contained in the order dt.01.06.06 passed by Hon'ble High Court, the opposite party could not take forcible possession of the flats. Since the complainant was forcibly dispossessed by the opposite party by breaking open locks, learned Trial Magistrate has rightly observed that prima facie case for an offence U/s 453 IPC is made out against the accused - petitioner.
9. In this case, the complainant has levelled specific allegation that the accused took forcible possession of flat no.413/14 by breaking open locks despite the injunction order passed by the Hon'ble High Court. Clause "fourthly" of Section 445 IPC provides that a person is said to commit house breaking who commits house trespass if entrance is effected into the house or any part of it by opening any lock in order to the committing of the house trespass or in order to the quitting of the house after a house trespass. So the case is covered by the provisions of 453 IPC. Offence under Section 453 IPC is punishable with imprisonment of 2 years. Having regard to the provisions of Section 468 CrPC, the period of limitation for taking of cognizance shall be three years. Therefore, this court does not find any merit in the contention raised by learned counsel for the petitioner that the Trial Court could not take cognizance of the offence beyond a period of one year.
10. In view of the above discussion, finding no merit in the petition, same is Crl. Rev. No.29/12 6 hereby dismissed.
Trial Court Record be returned. File of revision petition be consigned to Record Room.
Parties to appear before Learned Trial Court on 16.10.2012.
Announced in Open Court
on 03.10.2012 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Rev. No.29/12 7