The applicant No.1 is a Company engaged in the business of pesticides and insecticides etc. Applicant Nos. 2 & 3 are its Secretary and Managing Director respectively. At the relevant time, the office of the applicant - Company was at Juhapura-Vasana area. The complainant - respondent No.2 herein - had entered into an agreement (Annexure-A) with the applicant-Company and was running a Canteen since 15.3.1986. The agreement entered into between the parties initially was for 3 years. One of the conditions of the agreement was that the electricity charges were to be borne by the complainant-respondent No.2.
2. Respondent No. 2 herein has filed complaint (Annexure-C) against the present applicants in the Court of learned Chief Judicial Magistrate, Ahmedabad (Rural), which was registered as Criminal Case No. 1599/2007. The principal grievance of the complainant was disconnection of electric supply by the applicants and that thereby the applicants have committed offences punishable under Section 24(4) of the Bombay Rent Act and Sections 426, 114 r.w. section 34 of the Indian Penal Code. The learned Magistrate after due verification registered the complaint and issued process by order dated 11.7.2007. Hence, this application for quashing the said criminal case.
3. Heard learned advocate Ms. P.J.Davawala for the applicants, learned advocate Mr. A.I.Pathan for respondent No.2 and learned A.P.P. Mr. N.J.Shah for the State.
4. During the course of hearing, the learned advocate for the respondent - complainant has placed on record affidavit-in-reply filed by respondent No.2, which has been seriously objected by the learned advocate for the applicants. After hearing the learned advocates for the parties, the affidavit-in-reply is permitted to be placed on record.
5. The learned advocate for the applicants-accused has taken the Court to the relevant record of the case and especially the agreement entered into between the parties. The learned advocate pointed out that the complainant is not the tenant of the applicants. It was submitted that considering the nature of the complaint, prima facie, the complaint is not maintainable and, therefore, the same should be quashed.
6. on the other hand, learned advocate for the respondent-complainant submitted that the disputes regarding nature of relationship between the applicants and the complainant - along with other dispute is pending before the civil court. It was submitted that the trial Court had, after applying its mind and considering the contents of the complaint, issued process and, therefore, at this stage this Court should not interfere with the complaint. The learned advocate for the complainant-respondent No.2 herein has also submitted that the applicants had filed Criminal Case No. 1330/2006 against the complainant for criminal trespass, which is decided in favour of the present complainant. The learned advocate submitted that the applicant-Company is unnecessarily harassing the complainant-respondent No.2.
7. The complainant has filed complaint before the Court for the offences under Sections 426 & 114 of the Indian Penal Code and for the offence under Section 24 of the Bombay Rent Act. Section 426 of IPC deals with offence of mischief. In order to prove the offence of mischief, prosecution is required to establish three ingredients, viz. (i) intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person, (ii) causing the destruction of some property or any change in it or in its situation, and (iii) such change must destroy or diminish its value or utility, or affect it injuriously.
I may consider offence of mischief in context of the present case.
8. According to one view, offence of mischief is committed only with reference to the movable property. If it is so, then, the present complaint cannot be said to be maintainable. Assuming that the complainant side may not be agreeable to that view, then if we refer the complaint in substance, the complainant makes two grievances, by attributing two acts to the applicants; firstly, that the applicants acting in collusion and connivance with Torrent & Co., electricity supplier has discontinued electricity supply of the complainant and thereby the applicants have caused damage and economic loss to the complainant's hotel business. Secondly, the applicants have by their act wrongly and illegally deprived the complainant of his property. Neither of these acts, assuming assertion made by the complainant in his complaint to be true, attract offence of mischief. As to the former act, it may be pointed out that "property" contemplated under the provision is physical, tangible and corporeal property. So alleged economic loss to the complainant's hotel business would not attract section 425, nor alleged act of applicants of depriving the complainant of possession of the property, even if it is wrongfully or illegally, can be read as an act of spice of "diminish" or "destroy" "value" or "utility of the property" or as "affecting property injuriously". None of the ingredients of offence would be attracted by the alleged act of the applicants. Deprivation of person from his lawful occupation of his property does not attract section 425. Remedy lies for the applicants elsewhere and not under section 425. In short, it may be stated that deprivation or withdrawal of water supply or electricity supply, per se, generally speaking, do not attract the offence of mischief.
9. In the same manner, commission of offence under section 24(4) of the Bombay Rent Act is also doubtful. The relevant part of section 24 reads thus:
"24(1) No landlord either himself or through any person acting or purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.
(3) If the Court on inquiry finds that the tenant has been in enjoyment of the essential supply or service and that it was cut off or withheld by the landlord without just or sufficient cause the Court shall make an order directing the landlord to restore such supply or service before a date to be specified in the order. Any landlord who fails to restore the supply or service before the date so specified shall for each day during which the default continues thereafter be liable [upon a further direction by the Court to that effect] to fine which may extend to one hundred rupees.
(4) Any landlord, who contravenes the provisions of subsection (1) shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine or with both.
Explanation-I : In this section essential supply or service includes supply of water, electricity, lights in passages and on staircases, lifts and conservancy or sanitary service.
Explanation-II : For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply or service is cut off by the local authority or any other competent authority."
10. It would appear that essential ingredients of Section 24(1) of the Bombay Rent Act are thus:
(i) Parties should be landlord and tenant;
(ii) The supply or service about which complaint is made should be essential;
(iii) that the said supply or service was enjoyed by the complainant/tenant qua the premises about which complaint is made;
(iv) that the said supply or service is cut off or withheld;
(v) that such act of cut off or withdrawal of essential supply is by the landlord himself or person purporting to act on behalf of the landlord;
(vi) that there was no just or sufficient cause for such withdrawal of supply.
In the present case, presence or existence of at least two ingredients can certainly be said to be in doubt. One about nature of relationship between the parties. The parties should be landlord and tenant. It is true that the Bombay High Court has taken a view that even criminal court can consider and decide the nature of relationship between the parties. In a given case, such exercise may be resorted to, but, in the present case it may not be in the interest of justice to relegate parties to the criminal court to agitate the nature of relationship between the parties by that Court. It is so, because civil litigation is pending between the parties. The said civil dispute is fairly old and it was submitted at the time of hearing that the same is pending before the appellate Court. Let the civil court decide the issue of relationship between the parties. It would be relevant to mention here that civil suit filed by the present applicant is decreed in his favour and the appeal of the original complainant is pending before the District Court. The applicants can justifiably urge that prima facie the issue of relationship between the parties stands decided in his favour. In short, pendency of dispute as to relationship of landlord and tenant is an admitted fact. Then, on the last ingredient, viz. "just" and "sufficient" cause for discontinuation or withdrawal of essential supply, the applicants have more than one cause to urge in support of this; one, the applicants alleges that its Unit viz. Gujarat Agro Industries Corporation, has closed down to function at the disputed place since long i.e. in 1992. The complainant was allotted the disputed site only to run a canteen on licence basis. It is the further say of the applicant that the main purpose was to serve the employees of the applicants-Company. Thus, the complainant cannot validly insist to continue in occupation of the disputed place when the applicants' business is closed down. It is the further say of the applicants that upon closing down of their Unit, they have handed over the premises to the Home Department of the State Government in April, 2003. Further, it is not in dispute that electricity is supplied by a different and independent entity, i.e. Torrent Power Co. These are the circumstances which can be said to be "just" circumstances, though "sufficiency" of it may be debatable.
11. In the typical facts of the present case, brief reference may be made to the effect of factum of owner returning or transferring the premises. It would not be incorrect to observe that the alleged act of disconnection of essential supply would take backseat, when in reality question mark is placed on continuation of occupation of disputed place by the complainant. Right to essential supply cannot be de hors the premises, wherein the essential supply to be enjoyed. However, while saying so, it may be stated that statutory conferment of escape clause in the form of "just and sufficient cause", notwithstanding the landlord in order to secure vacant possession, if resort to discontinuation or withdrawal of essential supply, then he would have tough time in defending the penal action initiated under section 24 of the Act.
In short, debatable nature of couple of essential ingredients of section 24(1) & (4) renders continuation of proceedings an abuse of process of court, particularly when the answer to this debatable ingredient is prima facie in favour of the applicants. It is also material to note that in the present case, fact of complainant having secured new and separate connection makes examination of issue in detail more or less academic exercise.
12. The learned advocate for the applicants drew the attention of the Court to the decision in the case of Rajnarayan Baijnath Yadav v. State of Gujarat & Anr., reported in 2006(1) GLH 293. Head Note says, "Quashing of complaint registered under section 138 of the Negotiable Instruments Act, 1881 - From the facts it appeared that complaint is lodged against the wrong person instead of against the real person - Held, that the principle of vicarious liability cannot be made applicable in criminal matters and without verification the complaint has been filed and the same is nothing but abuse of process of law."
13. The learned advocate for the respondent-complainant submitted that in that case the Court was pleased to quash the complaint only because the same was
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filed without verification and the Court had found that it is abuse of process of law. 14. In that case, it is held thus;" "In my view, the principle of vicarious liability cannot be made applicable in criminal matters. There is nothing on record to show that the applicant was in any way connected with the business of his brother or even remotely he was connected with the transaction in question." These observations help the applicants. However, it may be stated that the submission that the Company cannot be held liable for criminal act, is too broad proposition to be accepted. 15. In the facts of the present case, viz. Taking of a new electricity connection by the complainant, and secondly, pendency of civil cases between the parties, it would not be just, proper and legal to keep pending criminal case. 16. The learned advocate for the complainant urged that the observations made in this order and allowing of this criminal misc. application may not affect, in any way, the pending civil disputes between the parties. It hardly needs to be stated that the Court before which civil proceedings are pending would consider the matter irrespective of the order passed or observations made in this application. 17. This application is allowed. Rule is made absolute. Interim relief granted earlier stands vacated.