S.K. Kaul, J. - (1.) THIS appeal has been filed against an order of acquittal passed in favour of accused -Respondent.
(2.) THE facts of this case are that the Appellant owned house No. 20 -A Mall Avenue, P. S. Hazratganj, Lucknow. The complainant also owned a separate apartment at the side of the aforesaid house which is known as Sadhu Kuti which was meant for use and stay of the Christian Sadhus. It is alleged that the Appellant had gone to Allahabad in the month of December, 1971 after entrusting his house and the said Kuti in the care of Sri Ashley John and Sardar J. S. Kohli. On his return from Allahabad in the month of April, 1972 he found that the accused -Respondent has taken possession over the aforesaid Sadhu Kuti. He was informed by the aforesaid caretakers that the accused Respondent had taken forcible possession after getting its lock opened. The complainant -Appellant lodged a report in the police station and also gave a notice to the accused Respondent to vacate the aforesaid premises, failing which he filed a complaint before a Magistrate, who took cognizance of the case, and after summoning the accused -Respondent, asked him to stand trial under Section 448 IPC. The defence of the accused -Respondent was that he was tenant of the aforesaid permises and that he was paying rent to the complainant. The trial court held that the accused Respondent had taken forcible possession and as such an offence under Section 448 IPC was made out as a result of which he sentenced the accused Respondent to pay a fine of Rs. 200/ -. In default of payment of fine he was ordered to undergo two months' R. I. He was also ordered to vacate the premises within 30 days, failing which action was to be taken under Section 456 Code of Criminal Procedure. The accused -Respondent went up in appeal. The learned Additional Sessions Judge relying on a ruling reported in, 1979 LLJ 18 Ram Swarup v. State held that since a valid notice was not given as required by law, the accused Respondent could not be said to have committed criminal trespass as a result of which he allowed the appeal, set aside the order of the trial court. Feeling aggrieved, the complainant has come up to this Court by way of appeal.
(3.) IT was urged before me that the first ingredient of Section 441 of the IPC was attracted inasmuch as after breaking the lock the Respondent had taken possession. The second argument was that the notice served upon the accused Respondent was valid notice and therefore in any case amended provision of Section 441 was also attracted and as such the order of the trial court was perfectly correct in law.;