State of Maharashtra v. Kamlakar Mahadev Gite — 1996 DIGILAW 273 (BOM)

JUDGMENT - S.S. PARKAR, J. :---This appeal has been filed by the State of Maharashtra against the judgment and order dated 21st November 1981 passed by the learned Additional Sessions Judge, Satara in Criminal Appeal No. 94 of 1981 whereby the learned Additional Sessions Judge was pleased to allow the said appeal and set aside the order of conviction and sentence passed against the respondent accused by the Chief Judicial Magistrate, Satara on 15th July 1981 in Criminal Case No. 221 of 1979. The respondent accused was convicted by the learned Chief Judicial Magistrate, Satara under section 454 of I.P.C. for trespass and sentenced him to undergo RI for three months and to pay a fine of Rs. 200/- in default to undergo one month's RI. The respondent was also convicted under section 380 I.P.C. and sentenced to undergo RI for three months and to pay a fine of Rs. 200/- in default to undergo RI for one month. The respondent accused was also convicted under section 341 of I.P.C. for wrongful restraint and sentenced to suffer RI for one month and to pay a fine of Rs. 100/- in default to undergo RI for one month. The substantive sentences were ordered to run concurrently. 2.The brief facts leading to the prosecution case are as follows :- The respondent accused was the owner of house No. 57/2 situated in Satara which was tenanted to the complainant Mohan Pandurang Gudage. According to the complainant while he was in occupation and possession of the said tenament during the material period i.e. 5th June 1978 and 11th July 1978 the respondent-accused broke open the lock of the premises occupied by the complainant of the said house and committed theft, trespass and stolen the property of the complainant viz. carpet, chaddar, soap box, towel etc. worth Rs. 96/- from the said premises. The said fact was noticed by the complainant when he visited his room on 9th July 1978. On that day he found another lock was put on the said room. The complainant therefore approached the respondent-accused and enquired from him about the new lock with a blank paper seal put on the same. According to the complainant the respondent-accused replied to him that the lock and seal was put by the Municipal authorities. On that day he found another lock was put on the said room. The complainant therefore approached the respondent-accused and enquired from him about the new lock with a blank paper seal put on the same. According to the complainant the respondent-accused replied to him that the lock and seal was put by the Municipal authorities. The complainant, therefore, approached the Municipal authorities where he was told that the seal was not fixed by the Municipal authorities. The complainant, therefore, lodged his complaint against the accused-respondent for having broken open the lock and committing trespass as well as theft of his articles from the said premises. The said complaint was registered and investigated by the police and charge-sheet came to be filed against the accused. 3.The accused denied the commission of the offence. According to him the complainant himself had handed over possession of the premises in question sometime in November 1977 to the accused who was the landlord of the premises. In support of his case before the trial Court the complainant had led his own evidence, regarding the tenancy rights and the possession in respect of the premises in question. The respondent-accused had also led the evidence of certain witnesses to show that after November 1977 when the complainant had handed over possession of the premises in question to the landlord accused, he had rented the said premises to two other persons, one by name Basaveshwar and subsequent to one Dr. Mane on 1st December 1977. The said Dr. Mane was examined on behalf of accused as defence witness and he had produced leave and licence agreement executed between him and the respondent-accused. The trial Court after appreciating the evidence led on behalf of the prosecution as well as the defence gave finding that there was no evidence to show that the complainant who was tenant in respect of the premises in question had any time handed over the possession back to the respondent-accused. It was further found by the trial Court that there was no termination of the tenancy by the landlord of the complainant-tenant. It was further found that the standard rent application filed by the complainant-tenant against the respondent-landlord was also pending in the Court. It was further found by the trial Court that there was no termination of the tenancy by the landlord of the complainant-tenant. It was further found that the standard rent application filed by the complainant-tenant against the respondent-landlord was also pending in the Court. Then further reliance was placed by the trial Court on the evidence of P.W. 5 Shaikh who is working in Municipality and he pointed out that on the complaint of the tenant he had visited the premises in question and he found that the premises were locked and were not occupied. He has further given evidence that the lock was not put by the Municipality. The main question which had fallen for consideration before the Court was regarding the possession in respect of the said premises. Finding that there was no proof or that there was no evidence about the complainant tenant having handed over possession of the premises in question to the landlord, the trial Court convicted the respondent-accused and sentenced him as mentioned above. 4.Aggrieved by the judgment and order of conviction and sentence imposed by the trial Court, the respondent accused filed Criminal Appeal No. 94 of 1981 in the Sessions Court, Satara. The said appeal came to be heard by the learned Additional Sessions Judge, Satara who allowed the said appeal and set aside the order of conviction and sentence passed against the respondent-accused by the trial Court. 5.It is this judgment and order of acquittal dated 21st November 1981 passed by the learned Additional Sessions Judge, Satara which has been impugned by the State in the above appeal. Mrs. Pingulkar, learned Public Prosecutor appearing on behalf of the State argued that the learned Additional Sessions Judge was wrong in setting aside the judgment and order of the trial Court which had rightly convicted the respondent-accused for the aforesaid offences. According to her since the tenancy of the complainant was not terminated by the accused landlord and since the standard rent proceedings were pending in the Civil Court between the complainant and the accused, it would show that the possession of the premises in question was with the complainant-tenant. According to her the accused has also not produced any documentary evidence to show that the possession of the premises in question was handed over to the accused landlord. According to her the accused has also not produced any documentary evidence to show that the possession of the premises in question was handed over to the accused landlord. She further argued that the evidence of P.W. 5 Shaikh who is working as a clerk in the Municipality did not show that the possession of the premises in question was in the hands of the accused landlord and, therefore, the trial Court had rightly convicted the respondent-accused for the said offences. 6.We have gone through the judgments of the two courts below and have carefully considered the reasons given by them. We have also gone through the evidence on the record. We also bear in mind that this is an appeal against acquittal and in appeal against acquittal this Court would not be justified in interfering with the order of acquittal unless and until it is shown that the reasons given by the lower Court are perverse or that the findings given by the lower Court are against the evidence on record. We are also aware that in an appeal against acquittal if two views are possible and the view taken by the lower Court which has acquitted the accused is a possible view then we cannot substitute our own view. In view of the said legal position we find that the reasons given by the learned Additional Sessions Judge acquitting the respondent-accused of the offences for which he was convicted by the trial Court are not at all perverse. On the contrary it is a possible view which could be taken in the facts and circumstances of the case. The learned Additional Sessions Judge has pointed out that admittedly the notices were issued by the Municipality to the landlord for vacating the premises as the same were in dilapidated condition and were not worthy for occupation by the tenants. It was also found that the accused landlord had intimated to the Municipality that the tenants have not vacated the premises in their occupation in the building in question. The accused-landlord has also furnished a list of the tenants to the Municipality and in the said list the name of the complainant is not shown as the tenant of the accused-landlord. It is also the case of the accused-respondent that the tenant had given vacant possession of the premises in question to the accused-landlord in November 1977. The accused-landlord has also furnished a list of the tenants to the Municipality and in the said list the name of the complainant is not shown as the tenant of the accused-landlord. It is also the case of the accused-respondent that the tenant had given vacant possession of the premises in question to the accused-landlord in November 1977. It was also found by the learned Sessions Judge that when P.W. 5 Municipal employee visited the premises in question no tenant was occupying any of the tenaments of which he was the tenant including the complainant and the tenament claimed by the complainant-tenant was also locked. In view of these facts the learned Additional Sessions Judge had given finding that the complainant has not proved that he was in possession or occupation of the premises in question. Now in order to substantiate the aforesaid charges against the respondent-accused the question of possession was very important and unless and until it was proved by the prosecution beyond any reasonable doubt that it was the complainant tenant who was in possession of the premises in question on the relevant date that is in July 1978, doubt arises as to whether aforesaid alleged offences could have been committed by the respondent-landlord. The learned Additional Sessions Judge has also considered the evidence of Dr. Mane whose statement was recorded by the police in the course of investigation but was examined as a defence witness who produced two documents, leave and licence agreement entered into between him and the respondent-accused whereby the same premises in question were shown to have been given on leave and licence to said Dr. Mane. 7.We see absolutely no reason to find fault with the aforesaid reasoning given by the learned Additional Sessions Judge which is supported by the evidence on record and according to us is a plausible view taken by the lower Court. 8.We, therefore, confirm the aforesaid order dated 21st November 1981 passed by the learned Additional Sessions Judge allowing the appeal of the respondent-accused being Criminal Appeal No. 94 of 1981 and setting aside the order of conviction and sentence passed by the learned Chief Judicial Magistrate in Criminal Case No. 221 of 1979 by his judgment and order dated 15th July 1981. We, therefore, dismiss the above appeal for the aforesaid reasons. The bail bond of the respondent-accused shall stand cancelled. Appeal dismissed.