Tarun Kumar Gupta, J. - (1.) THIS is an appeal against a judgment of acquittal dated 19th May, 1999 passed by learned A.C.J.M., Alipore in T. R. No.34 of 1997. By the judgment impugned learned Trial Court acquitted both the respondent accused persons.
(2.) BEING aggrieved with said judgment of acquittal the complainant company has filed this appeal. The appellant complainant?s case may be summarized as follows:- M/s. Triveni Sheet Glass Works Limited is a company incorporated under the Indian Companies Act, 1956. Said Company is the owner of flat No.101, first floor, Saikat Apartment at 274 Parnasree Pally, P. S. Behala. Accused No.1 Yogesh Chandra Agarwal came to Calcutta some time in September, 1994 in connection with his service in a private firm and approached Mr. P. N. Agarwal, one of the directors of said company to provide him a temporary accommodation. Sri P. N. Agarwal permitted accused No.1 along with his wife being accused No.2 to live in said company?s flat as a licensee without any license fee. As accused persons did not vacate said flat in spite of repeated requests there was revocation of license and filing of a Civil Case being Title Suit No.104 of 1996 in the Court of learned Assistant District Judge, 7th Court, Alipore praying for eviction. The suit was decreed ex parte on 10th of October, 1996. Execution proceeding being Title Execution Case No.31 of 1996 was filed. Writ of delivery of possession was accordingly issued. The Court bailiff in execution of said writ of delivery of possession handed over possession of the flat to the company?s representative on 4th of January, 1997at 1 P. M. The company representative kept said flat under lock and key. On that day around 7 P. M. accused persons along with some other unknown persons forming an unlawful assembly broke open the padlock of said flat and criminally trespassed therein by taking forcible possession of the same and wrongfully restrained the company representative to enter into said flat. The matter was reported to the nearby police station by letter dated 4th of January, 1977 which is recorded Vide G. D. entry No.334 dated 4th of January, 1977 at Behala P. S. Later on a specific complaint was filed against both the accused persons under Section 147/448/341 Indian Penal Code. Processes were accordingly issued and accused persons appeared and faced trial under Section 147/448/341 Indian Penal Code. The defence case as it is gathered from the trend of cross-examination of relevant P. W.s as well as from the statements of accused persons under Section 313 Cr. P. C. is that accused No.1 was occupying said flat with his wife as a caretaker and that there is no incident as alleged. In order to prove this case appellant complainant adduced oral evidence of six witnesses. P. W. 1 Meghadri Kumar Chattopadhyaya deposed that he was authorized to file the criminal case by the company through a resolution (Ext.1) and a letter of authority (Ext.2). He further deposed that accused Yogesh Chandra Agarwal was permitted to stay in said flat of the company as a licensee without any license fee at the instance of P. N. Agarwal, the then director. He further deposed that the company obtained an ex parte decree of eviction against the accused persons and that delivery of possession of the flat was given by the Court bailiff to him, being representative of the company, on 4th January, 1997 at 1 P. M. He further deposed that office peons namely Uttam Mukherjee and Amit Biswas were kept in said flat to guard the same and that he went out to make arrangement for security guard for said flat. According to him, one of them informed him over phone that in the evening the accused persons along with some unknown miscreants forcibly entered said flat by breaking open the door and drove them out and that at about 10 P. M. on that day he along with those persons had been to Behala P. S. and lodged a diary. P. W. 2 Uttam Kumar Mukherjee deposed that on 4th of January 1997 around 10 A. M. the Court bailiff delivered possession of the case flat to Mr. M. K. Chattopadyaya as representative of the company in presence of him and other employees of the company and that he and Amit Biswas, another peon of the company, remained in the flat but around 6.30 P. M. /7 P. M. the accused persons along with some unknown persons forcibly entered the flat by breaking open the door and drove them out. According to him, they informed Mr. Chattopadyaya over phone and around 10 P. M. went to Behala P. S. to lodge a G. D. P. W. 3 Sanatan Chakraborty is a police constable who produced concerned G. D. No.334 dated 4th of January, 1997 (Ext.5). P. W.4 Pradip Kumar Dey is a group D employee of the concerned Court who produced writ of delivery of possession (Ext.3) to show that as per report of bailiff the possession was delivered on 4th of January, 1997 at about 11 A. M. P.W.5 Amit Kumar Biswas deposed that on 4th of January, 1997 around 1 P. M. while the possession of the case flat was handed over to Mr. M. K. Chattopadyaya, the company?s representative by the bailiff he along with other office personnels were present and that he and one Uttam Mukherjee were asked to stay in said flat.
(3.) HE further deposed that around 6.30 P. M. / 7 P. M. the accused persons accompanied by many persons forcibly entered said flat by breaking open the door and drove them out. According to him they informed Mr. M. K.Chattopadyaya around 7.15 P.M. and that they had been to Behala P. S. where Mr. Chattopadyaya also came and lodged a diary around 10 P. M. P. W. 6 Amulyadhan Bose deposed that he being a process server of Alipore Court executed the writ of delivery of possession in connection with Execution Case No.31 of 1996 on 4th of January, 1997 and delivered possession of the premises to M. K. Chattopadyaya, employee of the decree holder company. HE also proved & identified his report (Ext.3). On the basis of said evidence on record learned Trial Court acquitted the accused persons from all the charges. Learned counsel for the appellant submits that learned Trial Court disbelieved the oral evidence of the eye witnesses of the incident namely P.W.2 Uttam Kumar Mukherjee and P. W.5 Anil Kumar Biswas by giving unnecessary stress to some omissions and / or contradictions as came out from the written complaint as well as G. D. (Ext.5). He further submits that in the process learned Trial Court also disbelieved the evidence of P.W.6 (Court bailiff) regarding handing over possession of the flat in question to P.W.1 on 4th of January, 1997. He further submits that the report of bailiff (Ext.3) clearly goes to show that on 4th of January, 1997 the possession of the case flat was handed over to the representative of the complainant company (P.W.1). According to him, learned Trial Court wrongly held that handing over possession was a myth and a paper transaction and that oral evidence of forcible dispossession of employees of company namely, P.W.2 and P.W.5 was not believable. Accordingly, he has prayed for setting aside said order of acquittal & for passing appropriate order of conviction and sentence. In support of his contention he has referred case laws namely State of U. P. vs. Anil Singh (AIR 1988 Supreme Court page 1998) and the case of Rajesh Singh and Ors. vs. State of U. P. [2011 (2) CLJ (SC) page 173].;