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2013 DIGILAW 1883 (BOM)

Salete Miranda e Shetty v. Pramod Faterpekar

2013-09-17

R.C.CHAVAN

body2013
JUDGMENT This revision is directed against the revisional order passed by the learned Additional Sessions Judge, Mapusa whereby the learned Judge set aside the order of the learned Magistrate dismissing a complaint and directed issuance of process against the applicants for the offences punishable under Sections 380 and 427 read with Section 34 of the Indian Penal Code. 2. Facts which are material for deciding this revision are as under:- The complainant, one Mr. Pramod Faterpekar, filed the complaint in his individual capacity, though in the body of the complaint he stated that he was Branch Manager of Sine Fine Advertisement Private Limited, Mumbai and duly constituted Attorney of the Managing Director of the Company Mr. D.K. Bandekar and filed the complaint in terms of the Power of Attorney. The applicants are owners of property bearing Survey No.60 at village Betim. Sine Fine Advertisement Private Limited claimed to have entered into an Agreement with the applicants for permitting the Company to erect a neon sign board on their property along with generator room etc.. After the term of agreement expired and disputes began. It was alleged that on 27/01/2004 at about 11:30 p.m. the applicants forcibly broke open the tin shed cabin of generator room and removed diesel tank of generator worth Rs.20,000/-, battery, power supply switches, air cleaner of generator, fuses and six diesel cans of five litres all worth Rs.20,000/-. On 28/01/2004 Mr. Pramod Faterpekar claims to have filed a report with Police Station, Porvorim but since the police officer refused to register FIR, the complainant seems to have approached the Civil Court. Again on 15/03/2004 at about 4:30 p.m. , the applicants are alleged to have attacked the complainant and two workers and damaged metals sheets of generator shed. A Civil Suit was filed but the Company could not secure any injunction. Mr. Pramod Faterpekar then filed the complaint. The complainant sought that a process be issued against the applicants. This complaint was filed on 19/06/2004. The learned Magistrate called for “say” of the investigating officer and Additional Public Prosecutor. The investigating officer filed say on 23/06/2004 and after considering this say by order dated 06/08/2004, the learned Magistrate dismissed the complaint. 3. Pramod Faterpekar then filed the complaint. The complainant sought that a process be issued against the applicants. This complaint was filed on 19/06/2004. The learned Magistrate called for “say” of the investigating officer and Additional Public Prosecutor. The investigating officer filed say on 23/06/2004 and after considering this say by order dated 06/08/2004, the learned Magistrate dismissed the complaint. 3. The complainant then filed Criminal Revision Application No.72 of 2004 which was allowed by order dated 15/01/2005 directing the learned Magistrate either to proceed under Section 156(3) or Section 200 of the Code of Criminal Procedure. This order was passed without hearing the applicants. The complainant seems to have then applied for transfer of the Criminal complaint from one Court to another which application too was allowed without hearing the applicants. On 01/09/2006, the learned Magistrate to whom the case was transferred referred the matter for investigation to the police. On 01/07/2007, the police inspector filed his report. The complainant expired on 05/03/2008 and the complaint is now sought to be prosecuted by one Mr. Nilkanth Narvekar. On 07/05/2009 and 25/06/2009, two witnesses were examined before the Court. On 06/08/2009, the learned Magistrate again dismissed the complaint holding that there was not enough material to issue process. Aggrieved thereby, one Pravina Pramod Faterpekar i.e. widow of the original complainant filed a revision which revision was allowed by the impugned order. 4. I have heard the learned counsel for the applicants and the learned counsel for the respondent – complainant. The learned counsel for the applicants submits, first, that the entire process is vitiated because the learned Magistrate, rather than examining the complainant and witnesses himself, allowed an examination-in-chief by the complainant's Advocate. He submitted that object of examination of the complainant and complainant's witness by the Court under Section 200 of the Code of Criminal Procedure was to enable the Magistrate to ascertain the truth. This job could not have been abdicated by him. For this purpose, he relied on Judgment in Mr. Shailesh H. Bajaj vs. Sesa Goa Limited and another in Criminal Writ Petition No.6 of 2005 where this Court held as under :- “18. It appears that the learned Magistrate was a silent spectator to the Complainant being examined by his learned Advocate and bringing on record facts which were replicated from the complaint. Shailesh H. Bajaj vs. Sesa Goa Limited and another in Criminal Writ Petition No.6 of 2005 where this Court held as under :- “18. It appears that the learned Magistrate was a silent spectator to the Complainant being examined by his learned Advocate and bringing on record facts which were replicated from the complaint. As already stated, it was the judicial duty of the Magistrate who had himself to examine the Complainant with a view to find out the truthfulness of the allegations made in the complaint and not to have left the matter in the hands of the Advocate appearing on behalf of the Complainant. The learned Magistrate failed to take note of the fact that the Complainant was an inanimate person and could not have broken public peace even if a provocation was given to Mr. Mukherjee, the Director of the Complainant. The failure of the learned Magistrate in not examining the Complainant by himself, as to the contents of the complaint, and allowing the matter to be dealt with by the Advocate of the Complainant by examining the Complainant in examination in chief, has certainly caused prejudice to the accused which has led to process being issued against him the accused for an offence which was prima facie not made out. Since the accused has approached this Court at the earliest, the said gross procedural irregularity certainly needs to be corrected by this Court. Being so, the petition deserves to succeed on the first submission alone and the process issued against the accused deserves to be quashed and set aside with a direction to the learned J.M.F.C., to examine the Complainant and his witness/s on oath and by himself as required under Section 200 Cr. P.C. It may be reiterated that leaving the matter of examination of the Complainant and his witness to the advocate of the Complainant, is a serious irregularity, which needs to be corrected. Consequently, the petition deserves to succeed on the first submission alone. Other submissions made on behalf of the accused to be looked into by the learned Magistrate, before issuing process. Case is remanded to the learned JMFC with a direction to follow Scrupulously the provisions of Section 200 of the Code.” 5. In Vasant Waman Pradhan vs. Dattatraya Vithal Salvi and another, reported in 2004 (1) Mh.L.J.487 on which too the learned counsel relied. Case is remanded to the learned JMFC with a direction to follow Scrupulously the provisions of Section 200 of the Code.” 5. In Vasant Waman Pradhan vs. Dattatraya Vithal Salvi and another, reported in 2004 (1) Mh.L.J.487 on which too the learned counsel relied. The Hon'ble Court held as under:- “17. Whenever the complaint is presented in the Court in view of provisions of Section 200 of the Code, the Magistrate is obliged to examine the complainant upon oath and the substance of such examination hall be reduced to writing and shall be signed by the complainant and also by the magistrate. It is pertinent to note that word "examination' has been used in Section 200 of the Code which means that the Magistrate is obliged to put questions to such complainant and to elicit the answers from him. This section enjoins a judicial duty to be performed and it requires application of judicial mind while examining such complainant on oath. The said work is not to be left to the clerk working in such Courts. It is to be noted that when such complainant is examined on oath by Court, he is interrogated for such examination, the truth is very likely to surface because complainant knows that he is being examined on oath by the Magistrate. Generally the complaints are drafted by lawyers or their clerks at the say of the complainant and such formulated conversation is presented before the Magistrate when the complaint is filed. Therefore, in that context also such examination is the best way of surfacing the truth on record. In such examination the complainant in all probability tells the truth and truthful version of the incident which enables the Magistrate to consider by application of judicial mind whether process is to be issued or not.” 6. The learned counsel for the respondent - complainant on the other hand, submitted that this could not vitiate the order issuance of process, since even examination of complainant and witnesses by an Advocate of the complainant would have enabled the learned Magistrate to ascertain the truth. In any case, according to the learned counsel, since the learned Magistrate had, in fact, dismissed the complaint after examination of the two witnesses, it could not be said that the examination of witnesses by the Advocate had any impact which could prejudice the accused. 7. In any case, according to the learned counsel, since the learned Magistrate had, in fact, dismissed the complaint after examination of the two witnesses, it could not be said that the examination of witnesses by the Advocate had any impact which could prejudice the accused. 7. The learned counsel for the respondents drew my attention to Judgment of Supreme Court in Chandra Deo Singh vs. Prakash Chandra Bose alias Chabi Bose and anr. reported in AIR 1963 SC 1430 , on the question of object of enquiry by Magistrate before issuing process where it has been held that - “7. Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, nor he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No. 1 that the very object of the provisions of Ch. XVI of the Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolo s complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions can, according to Mr. A privilege conferred by these provisions can, according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects behind the provisions of s. 202, Cr. P.C. is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused persons, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under s. 202 can in no sense be characterized as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry....................” 8. Following Chandra Deo Singh, in Smt. Nagawwa vs. Veeranna Shivlingappa Konjalgi and ors, reported in AIR 1976, SC 1947 (1). The Supreme Court re-iterated that “4. It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited-limited only to the ascertainment of the truth or falsehood, of the allegations made in the complaint--(i) on the materials placed by the complaint before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.” 9. This Court in Annapurna Nayak (Dr.) vs. Gyan Chand Varshey (Gupta) and anr reported in (2008) Mh.J. (Cri.)624, followed this view holding as under:- “5. In Chandra Deo Singh vs. Prakash Chandra Bose alias Chabi Bose and anr reported in AIR 1963 SC 1430 , the Supreme Court has held that the object of section 202 of Criminal Procedure Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent the person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind that provision and it is to find out what material is there to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of material placed before the Magistrate by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under section 202, Criminal Procedure Code can in no sense be characterized as a trial. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in the enquiry under Section 202 of Criminal Procedure Code.” 10. The learned counsel for the respondents submitted that in the face of these observations it may not be open to this Court to set aside the order directing issuance of process. He submitted that a summoning order need not be a reasoned order and therefore, dissecting it would amount to prejudging issues which ought to be reserved for trial. 11. In Bhushan Kumar and anr. vs. State (NCT of Delhi) and another, reported in (2012) 5 Supreme Court Cases 424, it has been held that “13. He submitted that a summoning order need not be a reasoned order and therefore, dissecting it would amount to prejudging issues which ought to be reserved for trial. 11. In Bhushan Kumar and anr. vs. State (NCT of Delhi) and another, reported in (2012) 5 Supreme Court Cases 424, it has been held that “13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued. 14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith. 15. In Kanti Bhadra Shah vs. State of W. B. (2000) 1 SCC 722 , the following passage will be apposite in this context: “12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial”. (emphasis supplied) 17. In Chief Controller of Imports & Exports vs. Roshanlal Agarwal this Court, in para 9, held as under:(SCC pp 145-46) “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. (2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722 , it was held as follows: (SCC p. 749, para 6)” “6. The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. 19. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order. 21. The conclusion of the High Court that the petition filed under Section 482 of the Code is not maintainable cannot be accepted in view of various decisions of this Court. (Vide Pepsi Foods Ltd. vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 749 , Dhariwal Tobacco Products Ltd. & Ors. vs. State of Maharashtra & Anr. (2009) 2 SCC 370 and M.A.A. Annamalai vs. State of Karnataka.” 12. On this aspect the learned counsel for the applicants drew my attention to Judgment in Sau. Sangita w/o. Ashok Borawar & ors. vs. Sou. (1998) 5 SCC 749 , Dhariwal Tobacco Products Ltd. & Ors. vs. State of Maharashtra & Anr. (2009) 2 SCC 370 and M.A.A. Annamalai vs. State of Karnataka.” 12. On this aspect the learned counsel for the applicants drew my attention to Judgment in Sau. Sangita w/o. Ashok Borawar & ors. vs. Sou. Surekha w/o. Nandu Borawar & anr., reported in 2010 ALL MR(Cri.) 3034 where the Court held as under :- “17. It is contended by the learned Counsel for the applicants that the material collected by the police and perused by the learned Magistrate as well as the allegations contained in the complaint taken at their face value are not sufficient to proceed against the accused. However, as stated above, I am of the opinion that this is not a case wherein there is absolutely no material to proceed against the accused. The sufficiency or otherwise of the material cannot be a matter of enquiry by the Trial Court. In the same judgment (Smt. Nagawwa v. Veeranna Shivlingappa Konjalgi and Ors.), referred to above, the Apex Court has observed, 'Whether the reasons were good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court in revision'. The principle enunciated by the Apex Court in the aforesaid judgment equally applies to the decision rendered by the Revisional Court in these matters. The Revisional Court has exceeded its jurisdiction in causing interference in the order passed by the Magistrate by directing issuance of process against accused Nos. 8 to 16. The Magistrate on consideration of the material has formed an opinion that there is sufficient material to proceed against accused Nos. 1 to 7 only. It was not open for the Revisional Court to probe further and record a contrary opinion. The order passed by the Revisional Court is in excess of jurisdiction vested in him. The order passed by the Revisional Court, therefore, needs to be quashed and set aside.” 13. The learned counsel for the applicants submitted that it was not open to the Sessions Court to probe into the reasons for the learned Magistrate to dismiss the complaint or to come to a contrary conclusion. 14. I am afraid that such is not the ratio of the Judgments cited. The learned counsel for the applicants submitted that it was not open to the Sessions Court to probe into the reasons for the learned Magistrate to dismiss the complaint or to come to a contrary conclusion. 14. I am afraid that such is not the ratio of the Judgments cited. An order directing issuance of process need not be a well reasoned order, since in itself, it does not preclude consideration of defence at trial. However, an order dismissing a complaint will have to be a well reasoned order, amenable to scrutiny by revisional Court, since it puts an end to the case. Therefore, such order can be interfered with for good reason. 15. On this point, to sum up, it would have to be held that though the learned Magistrate should ideally have examined the complainant and key witness, himself, examination-in-chief by complainant's advocate, in itself is not fatal and this cannot be a ground for setting aside an order directing issuance of process. 16. The learned counsel for the applicants next submitted that the dispute between the parties is a purely Civil dispute and therefore, a Criminal process should not have been allowed to be issued. He submitted that in fact in the Civil Court, the complainant had failed to obtain a temporary injunction. He pointed out that this Court had considered an appeal by the Company whom complainant claims to represent and drew my attention to Judgment in Sine Fine Advertising Pvt. Ltd., and others vs. Mrs. Salette Miranda e Shetty, reported in 2005(2) Goa L.R.342 where this Court held as under :- “2. After the expiry of the said period, the plaintiffs wanted the defendant to renew the said agreement for a further period of five years on payment of 10 % increase in the annual advance rent. Initially, the annual advance rent payable was Rs. 12,000/- per annum. The defendant, however, by letter dated 17.1.2004 refused to renew the said agreement and had called upon the plaintiffs to remove the neon sign board from her property, within a period of seven days from the date of the said letter. Initially, the annual advance rent payable was Rs. 12,000/- per annum. The defendant, however, by letter dated 17.1.2004 refused to renew the said agreement and had called upon the plaintiffs to remove the neon sign board from her property, within a period of seven days from the date of the said letter. The plaintiff, therefore, filed the suit, inter alia for injunction restraining the defendant from taking any action in pursuance of the notice cum letter dated 17.1.2004 and also for mandatory injunction from obstructing the plaintiffs from installing the generator and diesel tank and other machinery which according to the plaintiffs, were illegally and forcibly removed by the defendant on 28.1.2004. An application was also made for temporary injunction. Initially order of status quo was passed which was continued till the month of May, 2004. 3. The plaintiffs are relying on the letter/agreement dated 12.11.1998 on a stamp paper of Rs. 10/-. According to the plaintiffs, on the basis of the clauses in the agreement, the defendant was bound to renew this agreement every five years, by enhancing 10 % increase in the annual advance rental charges at the end of every block of 5 years. From the original document produced on behalf of the appellants, it appears that the defendant in her own handwriting had made changes in the said letter by adding the words "at my discretion" in the sixth line of page 2 by scoring out the typed words "for the next period of 5 years term w.e.f. 1-1-2005 by enhancing". There is also addition of words "mutual consent", by hand in the next line. Initial has been put by the defendant with date 12/11 put below her initial. It is contended on behalf of the appellant that the words "at my discretion" and "mutual consent" were also deleted which appears from the original agreement/letter produced on behalf of the appellants/plaintiffs. No doubt that reading of the agreement with the scoring out of the typed as well as written portion, the clause in the agreement does make sense, however, in the written statement, the stand taken by the defendant is that the defendant did not agree with the renewal clause in the letter which was sent to her on behalf of the plaintiffs for her signature and therefore, she scored out the typed portion and in her own handwriting inserted the words "at my discretion". The plaintiffs, however, wanted the defendant to put instead the words "mutual consent". Realizing that the words "mutual consent" might come in her way, she canceled the words "mutual consent" and put the words "at my discretion". It is the defendant's case that the plaintiffs have deliberately scored out the hand written words "my discretion". The learned Counsel for the respondent argued that this stand taken in the written statement or reply/affidavit has not been denied on behalf of the plaintiffs by filing rejoinder. Apart from that what I find is that the initials put by the defendants are at the end of the 6th line on page 2 of the letter of 12.11.1998 and, thereafter, at the beginning of 7th line on that page. On both the lines, there are scoring out twice, the typed portion and the written portion and, therefore, if the defendant had done scoring, she would have been asked to put her initials twice. Her initialing on line No. 6 as well as line No. 7 is once only. It means that she had initialed for cancellation of the typed portion and substituted the hand written portion and she must not have canceled the handwritten portion herself, in which case the plaintiffs would have asked her to put her initials again. In view of the aforesaid position, I do not find any fault with the impugned order. 5. It is an admitted fact that right from January, 2004 till today the plaintiffs have not used the neon sign board. Initially, there was an interim order of maintenance of status quo until 14th May, 2004 and thereafter also no one was using the place for hoarding. Since the plaintiffs are admittedly not using the neon sign board for display of hoardings fixed at the site, from January, 2004 until today, there is no question of granting temporary injunction.” 17. The learned counsel for the applicants submitted that in view of this, it is clear that there is a genuine Civil dispute between the parties and therefore, resorting to invocation of Criminal process amounts to abuse of process of Court. He submitted that in such a case, this Court would be justified in quashing the proceedings. The learned counsel for the applicants submitted that in view of this, it is clear that there is a genuine Civil dispute between the parties and therefore, resorting to invocation of Criminal process amounts to abuse of process of Court. He submitted that in such a case, this Court would be justified in quashing the proceedings. For this purpose, he relied on Judgment in Madhavrao Jiwajirao Scindia and others vs. Sambhajirao Chandrojirao Angre and others, reported in (1988)1 Supreme Court Cases 692where the Hon'ble Court held as under :- “7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 8. Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals. Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued.” 18. It is unnecessary to refer to them. In course of hearing of the appeals. Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued.” 18. The learned counsel for the applicants submitted that in the context of existence of a bona fide Civil dispute where even this Court exercising Civil appellate jurisdiction had held in applicants' favour, the complaint ought to be quashed. 19. The learned counsel for the applicants further submitted that in the context of the Civil dispute, the learned Additional Sessions Judge should have seen that applicants could not at all harbour any Criminal intention to make up offences of theft and mischief both of which require intention to cause wrongful loss to the adversary. The learned counsel for the applicants relied on Judgment in the case of Kesavan Nair vs. State of Kerala, reported in 2005(3)KLT 391where the High Court of Kerala held as under:- “5. To appreciate this argument, I shall first try to find out as to what constitutes "theft" under Indian Penal Code. Section 378 of Indian Penal Code defines "theft". In section 378, a reference is made to the expression "dishonestly". The said word "dishonestly" is defined under Section 24 of IPC. On reading Section 24, I further find that a reading of section 23 IPC will also be necessary to understand the real import of the expression, "dishonestly". So, to perceive as to what constitutes the offence of "theft", a joint reading of all the above sections is absolutely essential. I shall therefore extract all the above sections one by one as follows: S.378: Theft.-- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. S.24: "Dishonestly" –Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". S.23. 'wrongful gain' --"Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. 'Wrongful loss'.-- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. 6. S.23. 'wrongful gain' --"Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled. 'Wrongful loss'.-- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. 6. A close reading of Sections 378, 24 and 23 IPC extracted above would show that proof of removal of a movable property by the accused alone will not be sufficient to establish "theft". Prosecution has to further prove that the accused had intended to take the movable property "dishonestly" as defined under section 24 read with Section 23 IPC. To prove that the accused intended to take the property "dishonestly", prosecution has also to establish that the accused intended to cause wrongful gain or wrongful loss of the movable property as stated in section 23 of IPC. Thus, to prove the offence of "theft", prosecution has to establish that the accused moved the articles with the requisite intention contemplated by section 378 IPC read with sections 23 and 24 of IPC.” “9. But, the records in this case will not reveal that the accused had any intention to cause wrongful gain or wrongful loss in respect of any "movable" property. In the charge sheet itself it is stated that the accused had removed the movables with the intention to evict the complainant. The definite case of the prosecution is that the movables were removed with the intention to evict the complainant. It is specifically stated in complaint that the accused had threatened the complainant that his articles will be removed in case he did not vacate the premises. The accused thereafter allegedly removed the files, books etc. from the possession of the complainant. But those movables were kept exposed and intact in the premises of the house of the accused. Thus, even if the entire allegations in the records are accepted, it will only reveal that the accused moved the articles with the intention to evict the complainant from the building but they did not have the intention to cause any wrongful gain or wrongful loss of any movable property. Therefore the allegations revealed from records will not constitute offence under Section 380 IPC. If no offence under Section 380 is attracted, no offence under Section 451 also will lie.” 20. Therefore the allegations revealed from records will not constitute offence under Section 380 IPC. If no offence under Section 380 is attracted, no offence under Section 451 also will lie.” 20. He also relied on Judgment of this Court in Shriram Damodar Mulay and another vs. Thakurdas Ramnarayan Sharma and another, reported in 1977 BCI(0)63where this Court held as under :- “2. Non-applicant No.1 in this application (hereinafter referred to as the 'complainant'), has filed the criminal case in question against the two accused alleging that offences Under Sections 380, 425 and 441 as also Under Section 109 of the I P. C. have been committed. The allegations in the complaint are that the complainant was running a hotel in a tin-shed in Municipal House No. 231/8 at Amravati. Accused No. 1 is the Chief Officer of the Amravati Municipal Council, while accused No. 2 is the sub-overseer working in the Municipal Council. The complainant further alleges that accused No. 1 prosecuted the complainant in Criminal Case No. 519/1972 for constructing the said hotel without municipal permission. The complainant admitted that he was fined in that case. Thereafter accused No. 1 issued two notices on Feb. 3, 1976 and March 17, 1976, asking the complainant to demolish the building. In the first notice it was stated that the demolition was necessary as the construction was without municipal permission, while in the latter notice it is stated that the construction was an encroachment. The notice was not complied with. Accused No. 1, therefore, ordered the demolition of the structure on April 30, 1976. This order was carried out by the accused No. 2 on May 10, 1976 with the help of labourers. The material of the demolished structure had been removed to the Municipal Council premises. The complainant alleges that he has suffered a loss to the extent of Rs. 8,000/-. After making these averments, he has alleged in para 2 of the complaint as follows: Thus, accused No. 1 illegally ordered on 30-4-76 the accused No. 2 contravention of the provisions of Municipal Act, to commit theft, mischief and criminal misappropriation and accused No. 2 accordingly committed these offences. This complaint was placed before the Magistrate, who passed an order in Nov. 30, 1976, that the case be registered Under Sections 109, 425 and 380 of the IPC and that the summons be issued to the accused. This complaint was placed before the Magistrate, who passed an order in Nov. 30, 1976, that the case be registered Under Sections 109, 425 and 380 of the IPC and that the summons be issued to the accused. Thus, the Magistrate took cognizance on the basis of this complaint and it is this order that is being challenged in the present application. 10. The contention of the complainant is that both the accused have committed offences Under Sections 38o and 425 of the IPC. For constituting an offence of theft, there must be an intention to take dishonestly some movable property from the possession of another. Section 24 of the IPC defines the term 'dishonestly' to mean that there must be a wrongful gain to one person or a wrongful loss to another. The complaint has nowhere alleged that the removal of the building material (after demolition work was over) has been done by accused Nos. 1 and 2 with a view to cause any wrongful gain or wrongful loss to the complainant. In fact Mr. Deshpande for the accused frankly stated during the course of arguments that these materials have been shifted to the municipal premises for safe custody so as to enable the complainant to get them. It is thus clear that the complainant has not alleged facts which constitute an important ingredient of dishonest removal. The same is the position if the ingredients of the offence of 'mischief are taken into account. The gravamen of that offence is that there must be an intention to cause or there must be a knowledge that the accused person is likely to cause a wrongful loss or damage to another, on account of any destruction. The word 'wrongful' loss' is defined Under Section 23 of the IPC and according to that definition, loss would be wrongful if it is done by wrongful means, In the present case, the complainant has not even alleged that the accused had the requisite intention or knowledge of causing wrongful loss or damages. On the contrary, the allegations in the complaint themselves show that the accused No. 1 has acted not wrongfully but legally and in accordance with the powers vested in him Under Sections 179 and 189 of the Maharashtra Municipalities Act. On the contrary, the allegations in the complaint themselves show that the accused No. 1 has acted not wrongfully but legally and in accordance with the powers vested in him Under Sections 179 and 189 of the Maharashtra Municipalities Act. There is thus no scope for the complainant to urge that the demolition of the building in pursuance of these powers would be a mischief.” 21. In Jeewa Ram and others vs. Madan Lal and another, reported in AIR 1979 SC 1568 on which the learned counsel for the applicants relied. The Hon'ble Court held as under :- “12. It was further contended by the learned Counsel for the complainant that the very fact that the accused had removed the stall despite the injunction issued by the civil court would go to show their dishonest intention. I am unable to persuade myself to accept this contention also. The intention must be to cause wrongful loss to any other person. Here when the accused petitioners were acting in pursuance of the notice already issued by them, it can not be said that their intention was to cause wrongful loss to the complainant. The removal of the stall may entail loss to the complainant but that does not mean that it was wrongful or the intention of the accused was to cause him wrongful loss. Under Section 60 of the Easements Act a licence is revoked and under Section 63 of that Act the possession can be taken after removing the temporary structure etc.. I am, therefore, clearly of the opinion that in the circumstances of this case the complaint does not disclose the offence under Section 382 I.P.C. also and, therefore, the learned Magistrate had acted rather perversely in taking cognizance of the offence under Sections 166 and 382 I.P.C. against the accused persons.” 22. He also cited Judgment in Indian Oil Corporation vs. NEPC India Limited and others, reported in (2006)6 Supreme Court Cases 736 where the Hon'ble Court held as under :- “19. Section 378 defines theft. It states : "whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." The averments in the complaint clearly show that neither the aircrafts nor their engines were ever in the possession of IOC. Section 378 defines theft. It states : "whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." The averments in the complaint clearly show that neither the aircrafts nor their engines were ever in the possession of IOC. It is admitted that they were in the possession of NEPC India at all relevant times. The question of NEPC committing theft of something in its own possession does not arise. The appellant has therefore rightly not pressed the matter with reference to Section 378.” 23. On this question, the learned counsel for the respondents cited Judgment in K. N. Mehra vs. State of Rajasthan, reported at 1957 Cri. L.J. 552 (Vol.58, C. N. 245)(1), where the Hon'ble Supreme Court held as under: “7. Theft is defined in S. 378 of the Indian Penal Code as follows : Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." Commission of theft, therefore, consists in (1) moving a movable property of a person out of his possession without his consent, (2) the moving being in order to the taking of the property with a dishonest intention. Thus (1) the absence of the person's consent at the time of moving, and (2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft. In the Courts below a contention was raised, which has also been pressed here, that in the circumstances of this case there was implied consent to the moving of the aircraft inasmuch as the appellant was a cadet who, in the normal course, would be allowed to fly in an aircraft for purposes of training. It is quite clear, however, that the taking out of the aircraft in the present case had no relation to any such training. It was in an aircraft different from that which was intended for the appellant's training course for the day. It was taken out without the authority of the Flight Commander and, before the appointed time, in the company of a person like Phillips who, having been discharged, could not be allowed to fly in the aircraft. It was in an aircraft different from that which was intended for the appellant's training course for the day. It was taken out without the authority of the Flight Commander and, before the appointed time, in the company of a person like Phillips who, having been discharged, could not be allowed to fly in the aircraft. The flight was persisted in, in spite of signals to return back when the unauthorized nature of the flight was discovered. It is impossible to imply consent in such a situation. 8. The main contention of the learned counsel for the appellant, however, is that there is no proof in this case of any dishonest intention, much less of such an intention at the time when the flight was started. It is rightly pointed out that since the definition of theft requires that the moving of the property is to be in order to such taking. "such" meaning "intending to take dishonestly", the very moving out must be with the dishonest intention. It is accordingly necessary to consider what, "dishonest" intention consists of under the Indian Penal Code. Section 24 of the Code says that "whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly". Section 23 of the Code says as follows : 'Wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled. 'Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property." Taking these two definitions together, a person can be said to have dishonest intention, if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legal y entitled or to cause loss, by wrongful means, of the property to which a person so losing is legally entitled. It is further clear from the definition that the gain or loss contemplated need not be a total acquisition or total deprivation but it is enough if it is a temporary retention of property by the person wrongfully gaining or a temporary "keeping out" of property from the person legally entitled. This is clearly brought out in illustration (1) to s. 37 8 of the Indian Penal Code and is uniformly recognized by various decisions of the High Courts which point out that in this respect "theft" under the Indian Penal Code differs from "larceny" in English law which contemplated permanent gain or loss. (See Queen-Empress v. Sri Churn Chungo ILR 22 Cal.1017 (FB) (A), and Queen-Empress v. Nagappa ILR 15 BOM.344 (B). In the present case there can be no reasonable doubt that the taking out of the Harvard aircraft by the appellant for the unauthorized flight has in fact given the appellant the temporary use of the aircraft for his own purpose and has temporarily deprived the owner of the aircraft, viz., the Government, of its legitimate use for its purposes, i.e., the use of this Harvard aircraft for the Indian Air Force Squadron that day. Such use being unauthorized and against all the regulations of aircraft-flying was clearly a gain or loss by unlawful means. Further, the unlawful aspect is emphasized by the fact that it was for flight to a place in Pakistan. Learned counsel for the appellant has urged that the courts below have treated absence of consent as making out dishonesty and have not clearly appreciated that the two are distinct and essential constituents of the offence of theft. The true position, however, is that all the circumstances of the unauthorized flight justify the conclusion both as to the absence of consent and as to the unlawfulness of the means by which there has been a temporary gain or loss by the use of the aircraft. We are, therefore, satisfied that there has been both wrongful gain to the appellant and wrongful loss to the Government.” 24. I have carefully considered rival contentions in the light of enunciation of law in the reported Judgments relied on. In the case at hand, it is clear that there was a Civil dispute between the parties about the permission by applicants to erect a neon sign board on applicants' property. I have carefully considered rival contentions in the light of enunciation of law in the reported Judgments relied on. In the case at hand, it is clear that there was a Civil dispute between the parties about the permission by applicants to erect a neon sign board on applicants' property. That agreement had expired and on the question whether it stood automatically renewed, at least prima facie the Civil Courts have not held in favour of the respondents. I have examined the agreement and the corrections made therein, which have been elaborately discussed by this Court in Sine Fine Advertising Pvt. Ltd., and others (Supra).In this context, it would be hard to hold that the respondent was in “possession” of movables which were allegedly stolen or damaged. The learned counsel for the respondents submitted that under the agreement, it was for the respondents to carry the entire responsibility about the articles, including that of payment of taxes, implying that the respondent was in possession. In my view, merely because the agreement absolved applicants of all liabilities arising out of the billboard, the respondents could not be held to be in even constructive possession to prove any dishonest moving of the property by applicants, presuming that applicants did remove the property or damaged it. 25. Further, the existence of Civil dispute itself will rule out any dishonest intention on the part of applicants to cause any wrongful loss to the respondents or wrongful gain to the applicants. Since the relevant provisions have already been reproduced in Judgments relied on and quoted in those Judgments in preceding paragraphs, it is not necessary to quote them again. The ratione of Judgments relied on clearly rule out complicity of the applicants in offences of theft and mischief for which the learned Additional Sessions Judge has chosen to issue process. Therefore, continuance of the proceedings would amount to abuse of process of Court. The learned counsel for the applicants also drew my attention to para 12 of the plaint filed by the respondents where the respondents had inflated the cost of diesel tank which was allegedly forcibly removed to Rs.2,00,000/-, when in the complaint before the Magistrate, as also in statements on oath before the learned Magistrate damage caused and cost of articles stolen was valued at Rs.20,000/- only. This speaks volumes about the attitude of the Company which complainant professed to represent. 26. This speaks volumes about the attitude of the Company which complainant professed to represent. 26. In view of the foregoing, the Criminal Revision Application is allowed and the impugned order passed by the learned Additional Sessions Judge, Mapusa dated 11th October, 2011 allowing Criminal Revision Application No.94 of 2009 is set aside and the order dated 6th August, 2009 by the learned Judicial Magistrate F. C., “B” Court, Mapusa dismissing Criminal Miscellaneous Application No.121/S/2004/B is restored.