- (1.) THIS petition has been filed by the petitioner/original accused no. 1 assailing the Order of the Additional Sessions Judge, Panaji, in Criminal Revision Application No. 52 of 2000, decided on 4th May 2001, dismissing the revision filed by the petitioner/accused no. 1 challenging the rejection of his application for recall of process by the Order of the learned Judicial Magistrate, First Class, Panaji, dated 5th July, 2000.
(2.) THE complaint/case came to be filed by the present respondent/complainant, which was registered as Private Criminal Case No. 40/98/b, in the Court of the Judicial Magistrate, First Class, Panaji. THE said complaint/case was filed alleging the commission of the offences under Sections 447, 453, 506 Part II and 341 of the Indian Penal Code. On the filing of the said complaint, the learned Judicial Magistrate, First Class, Panaji, held an inquiry under Section 200 of the Criminal Procedure Code and recorded the statements of the complainant Narendra Thaly and P. W. 2 Nanda Mohankrishna Naik. THE learned Magistrate thereafter, taking into consideration the material that was available against the accused, held that there was a prima facie case for issuing process under Sections 453 and 341 of the Indian Penal Code against the petitioner/accused no. 1 only. THE other person, one Ronald Pinto, who was arraigned as accused no. 2, was discharged as the learned Magistrate found that there was no material against the said Ronald Pinto for issuance of process. THE learned Magistrate also found that there was no material for issuing process against the petitioner for an offence punishable under Section 506 of the Indian Penal Code. This Order of the learned Magistrate, dated 17th November, 1999, issuing process against the petitioner/accused no. 1 was sought to be recalled by the present petitioner, after he was served with the summons, by filing an application for recalling of process. In the application for recall of the process what was averred by the petitioner/accused no. 1 was that a Special Civil Suit No. 34 of 1998/b had been filed by the respondent/complainant seeking specific performance of an agreement dated 15th March 1995. In short what was contended before the learned Magistrate was that the dispute before the learned Magistrate, as stated in the complaint, was essentially a dispute of civil nature which had been deliberately spiced by the respondent/complainant for giving it a flavour of a criminal offence. THE learned Magistrate, after hearing the parties, by his Order dated 5th July 2000 rejected the application for recall of the process. The learned Magistrate meanwhile on 17th July 2000 explained the substance of the accusation to the present petitioner for offences punishable under Sections 453 and 341 of the Indian Penal Code. The petitioner/accused no. 1, being dissatisfied with the Order of the learned Magistrate dated 5th July 2000, filed Criminal Revision before the Additional Sessions Judge, Panaji. The said Revision was registered as Criminal Revision Application No. 52 of 2000. The said Criminal Revision Application came to be dismissed by the learned Additional Sessions Judge, Panaji, by his Judgment dated 4th May 2001. In the earlier round of litigation, the Judgment and Order passed by the Additional Sessions Judge, Panaji, in the said Criminal Revision Application No. 52 of 2000 was assailed before this Court by the respondent/complainant herein by filing Criminal Revision Application No. 6 of 2001 and by the present petitioner/accused no. 1 by filing Criminal Writ Petition No. 7 of 2001. Both the proceedings came to be decided by this Court by its Judgment dated 29th March 2001 and the learned Single Judge of this Court set aside the Judgment of the Additional Sessions Judge, Panaji in Criminal Revision Application No. 52 of 2000, which was dated 8th December 2000 remanding the revision to the learned Additional Sessions Judge, Panaji, for deciding it afresh in accordance with law. In compliance with the Order of this Court, the learned Additional Sessions Judge, Panaji, by his Judgment dated 4th May 2001, after hearing the parties afresh, dismissed the Criminal Revision Application No. 52 of 2000, which is assailed before me in the present Criminal Writ Petition. In the complaint filed by the respondent/complainant, it was averred that on 15th March 1995 the respondent/complainant entered into an agreement with one M/s. Quarlet Enterprises for purchasing three flats bearing Nos. G-5, G-6 and F/5-6 in a building known as 'river View Residency', situated at Ribandar, Goa, for a total consideration of Rs. 14,29,300/ -. It was alleged that the petitioner/accused no. 1 is one of the partners of the firm M/s Quarlet Enterprises. It was further alleged in the complaint that by April 1996, the respondent/complainant had paid the entire consideration to the said firm and the payment of the entire consideration was acknowledged by the said firm by its letter dated 23rd July, 1997. By the said letter, the respondent/complainant was called upon to pay the balance amount of Rs. 24,300/- and take the possession of the flats. The respondent/complainant has averred that by his letter dated 13th September 1997 he had forwarded a Pay Order No. 875753 for Rs. 24,300/- drawn on Syndicate Bank, Panaji to the said firm. It was then averred by the respondent/complainant that the petitioner/accused no. 1, being a partner of the said firm, handed over the keys of the said three flats to the wife of the respondent/complainant on 7th October 1997.
(3.) IT was then averred in the complaint that after the possession of the flats had been delivered to the respondent/complainant, the respondent/complainant gave the said three flats on leave and licence to Shri C. S. Ramesh, N. M. Shenoy and Rakesh Faria. The respondent/complainant then averred that on 26th October 1997 at about10. 30 a. m. Shri N. M. Shenoy alongwith the other two tenants came to the respondent/complainant's residence and informed him that on 25th October 1997 at about8. a. m. the petitioner/accused no. 1 had visited the said three flats and had commanded the said three persons to vacate the flats by 26th October 1997, failing which the petitioner/accused no. 1 had threatened that he would get goons on them and visit them with dire consequences. The three tenants also informed the respondent/complainant that apprehending danger to their lives, they had locked the said flats and had brought the keys for delivering them to the respondent/complainant. The respondent/complainant then accompanied by the three tenants went to inspect the said three flats. When he went to inspect the said three flats, what he found is stated in the complaint as reproduced below: - However, when the complainant reached the said flats he, Mr. Shenoy and his other colleagues were shocked to observe that the back doors of the said flats were broken open and 5 persons led by a person who later on identified as Mr. Ronald Pinto of Shadows Detectives Pvt. Ltd. , (Accused No. 2) had taken possession of the said flats. When told that the flats belonged to the complainant, the said Ronald Pinto informed the complainant that accused no. 1 had taken possession of the flats and employed him and others of Shadows Detectives Pvt. Ltd. , with orders not to allow any one to enter the said flats including the complainant. The said Pinto and others were carrying weapons of assault. The two witnesses examined by the respondent/complainant stated in their statements as under :- P. W. 1 Narendra Thaly : - We were shocked to observe the back door of the said flat No. G-6 was broke open and 5 persons lead (sic) by one person whose name I later came to know as Ronaldo Pinto of Shadows Detective Pvt. Ltd. , accused no. 2 herein had taken possession of my flat. Accused no. 2 on my saying that the flat belongs to me and I want to enter the said flat told me that accused no. 1 had taken possession of the same flat and employed him and ors. of Shadow Detective P. Ltd. gave orders not to allow me or anybody else in the said flat. I did not enter as the accused no. 2 and ors. were carrying weapons of assault i. e. 2 of them were having knives and other having lathi. As we apprehended untoward incident and violent retaliation of the accused no. 2 we left the site of the flats. P. W. 2 Nanda Mohankrishna Naik :- I say that I along with my other colleagues and Mr. N. Thaly came to the said flats at Ribandar around 11 .30 hours and to our surprise discovered that door of flat in my possession G-6 was wide open. We also noticed that 5 to 6 persons having appearance of goons were present therein. Mr. Narendra Thaly asked the persons present therein as to how they had come in the said flats which are belonging to him and on licence with us the said people stated that they were security guards engaged by Mr. N. Pilgaonkar and further stated that Mr. N. Pilgaonkar has told them that he has now taken possession of the flats and further directed the security guards not to allow any person including Mr. N. Thaly to the said flats without prior written permission of Mr. N. Pilgaonkar. The said persons threatened me, my colleagues as well as Mr. Thaly of dire consequences if we did not leave the vicinity immediately. Those people did not allow us to move towards the flat or enter the same.;