Delhi High Court has recently held in Jagdish Kapila v. Raj Kumar & Anr. that when there is no material to show that the possession was parted by the petitioner or was handed over to the complainant, no charge under section 447 of the Indian Penal Code can be framed against the petitioner.
Court set aside the challenged order passed by the Trial Court saying it is erroneous as Trial Court had framed the charge on the presumption that the complainant was in possession of the shop at that time which was not the correct position.
The shop in issue is in Palika Bhawan, R.K.Puram, New Delhi which is an NDMC market. Petitioner is admittedly the allottee of the said shop from NDMC. Respondent had filed a complaint under Section 200 contending that petitioner had agreed to rent out the shop to the respondent and had demanded a sum of Rs.50,000/- to be paid in advance. It was alleged that Rs.50,000/- was paid as advance and keys were delivered on 18.01.2011 and that petitioner had assured that he would give a receipt for the same and would also remove his articles from the said shop.
The admitted factual position that emerged before the court was that the petitioner was the allottee of the shop from NDMC and had a decree in his favour and against the complainant restraining latter from forcibly dispossessing the petitioner from the said premises. The further position was that there was no documentary evidence to show any discussion with regard to renting out of the shop by the petitioner, payment of money by the respondent, the vacation of the shop and handing over of the vacant peaceful possession to the respondent.
There was further no documentary evidence to corroborate that any tenancy was created in favour of the respondent or possession handed over. On the contrary the complaint itself alleged that there were certain articles of the petitioner lying in the shop i.e. one table and chair and one side rack, which it alleged he agreed to remove within a day or so.
Counsel for the petitioner submitted before the court that the Trial Court had erred in framing a charge and not appreciating that petitioner was the allottee and in possession of the subject shop and there is no document or material to show that respondent/complainant was ever in possession of the shop.
The court found Trial Court not right in framing charge under section 447 IPC against the petitioner and set aside the order of the Trial Court saying that the charge framed against the petitioner was not sustainable. It accordingly discharged the petitioner.
Section 447 is punishment for Criminal Trespass which is defined under section 441 to be committed when a person enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. The impugned order clearly is erroneous in as much as the Trial Court has framed the charge on the presumption that the complainant was in possession of the shop at that time. As there is no material to show that possession was parted with by the petitioner or handed over to the complainant, petitioner could not have been charged with the offence under section 447 IPC.
Petitioner was represented by the advocate Aditya Madaan in the case.
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