V.M. Kanade, J.@mdashThe applicants have filed this application u/s 482 of Cr. P. C. for quashing of complaint No. 37/SW/2010, filed in the Court of the learned Additional Chief Metropolitan Magistrate, 18th Court, Girgum and the order dated 5th March, 2010 passed therein. By the said order, the learned Magistrate directed respondent No. 1 to investigate u/s 156(3) of the Code of Criminal Procedure. Ad-interim relief was granted in favour of the applicants on 3rd May, 2010 and notice was issued to respondent No. 2. Respondent No. 2 appeared in person and has filed his affidavit-in-reply on 16th July, 2010 and thereafter the matter was kept for final disposal at the stage of admission. I have heard the learned Counsel for the applicant and respondent No. 2 who is appearing in person at length.
2. The brief facts are as under-Applicant No. 1 is the Chairman of NKGSB Cooperative Bank, having its registered office at Mumbai. The NKGSB Bank was established in the year 1917 and has 40 branches all over India, having turn over of Rs 3670 Crores. The said Bank is a multistate cooperative Bank, duly registered under the Multistate Cooperative Societies Act. Applicant No. 1 has been a Director of the Bank since 1995 and became Chairman in the year 2006. According to the applicants, applicant No. 1 being the Chairman of the Bank, does not look after day-to-day affairs of the Bank and he is not liable for the day-to-day affairs of the Bank. Respondent No. 2�s father was landlord of the building known as "Laxmi Sadan", situate at Girgum, Vitthalbhai Patel Road, Mumbai-4. He also had a flat in the said building being Flat No. 17. The said property was sold by the landlord and subsequently in the year 1968 the NKGSB Bank purchased the said property which is a cluster of buildings, collectively known as "Laxmi Sadan" along with 25 tenants in the said property. Respondent No. 2 is one of the tenants, occupying flat No. 17. In November, 2007 the Bank decided to carry out repairs and renovation of the said building since it was 75 years old and according to the applicants, he made application to the Bombay Municipal Corporation (hereinafter referred to as the "BMC") through an architect for carrying out tenanted repairs. The BMC granted permission. The Heritage Committee also granted N.O.C. for carrying out the renovation work vide its letter dated 19th November, 2007. The Municipal Corporation of Greater Mumbai, Mumbai Fire Brigade also granted no objection to carry out the proposed internal renovation work vide its letter dated 24-11-2008.
3. It is case the of applicants that the Bank was not going to consume additional FSI but only renovating the interior of the Bank. It is the case of applicants that respondent No. 2 started making various complaints to various authorities after the Bank started renovation work. According to the Bank, since the complaints were bogus, frivolous, no authority has taken any action against the said complaints. According to the applicants, in order to resolve the dispute, applicants had discussion with respondent No. 2. It is applicants� case that respondent No. 2 demanded money for withdrawing the said complaints. The applicants case is that initially respondent No. 2 had filed complaint to the Executive Engineer of the BMC and police complaint with D.B. Marg Police Station. According to applicants, respondent No. 2 agreed to withdraw those complaints, provided that he will be paid Rs. 30,000/- by the Bank. The Bank with an intention to buy peace, decided to make the payment and paid Rs. 30,000/- on 12-1-2009 to withdraw the complaints filed by him. Respondent No. 2 issued a receipt after receiving the money. It is the case of applicants that thereafter again further frivolous complaints were filed by respondents which were later on withdrawn by him by accepting Rs. 27,000/- on 16th July, 2009, by submitting letter/affidavit with the concerned authorities. He also wrote a letter to the Senior Inspector of Police dated 13th July, 2009 informing him that he had no further grievance against the Bank. Thereafter again he raised a dispute alleging that when the painting of the outer wall of the Bank was being done, the external wall and the door of the complainant was damaged and he demanded Rs. 7,500/- for repairs and again the said amount was paid to the complainant who issued receipts for the same and addressed a letter to the police authority informing that the complaint lodged by him was withdrawn since he has received money. It appears that respondent No. 2/complainant being emboldened by the money paid by the Bank and with an intention of extorting more money, kept on filing various false and frivolous complaints against the Bank. He thereafter filed a private complaint in the Court of Metropolitan Magistrate, Girgum, vide Complaint No. 37/SW/2010, alleging that applicant Nos. 1 and 2 in collusion with accused No. 3, the Assistant Engineer (Bldg. & Fact), �D� Ward, had carried out unauthorized and illegal structural alterations and additions and did not obtain mandatory permit/NOC from the various authorities, and therefore, were liable as per the provisions of Section 52 read with Section 43 of the Maharashtra Regional Town Planning Act, 1966 and u/s 427 of the I.P. Code. It was alleged that applicant Nos. 1, 2 and 3 were liable to be punished u/s 418, 336 of the I. P. Code.
4. It was further alleged that applicant Nos. 1 and 2 had created noise pollution and they are also liable to be punished under the provisions of the Environment Protection Act. It is further alleged that they were liable to be punished u/s 431 of the I.P. Code and as per the provisions of the Damages to the Public Property Act. The learned Magistrate after recording the verification of the complainant, was pleased to direct the police to make an investigation u/s 156(3) Cr.P.C. by its order dated 5th March, 2010. Pursuant to the said order, the investigating officer of the D. B. Marg Police Station started investigation and started calling applicant Nos. 1 and 2 to the police station very frequently. The applicants thereafter filed this application for quashing the complaint and the order passed by the learned Magistrate.
5. Respondent No. 2 has appeared in person and has filed his affidavit-in-reply.
6. The learned Counsel appearing on behalf of the applicants submitted that respondent No. 2 has filed the complaint with a mala fide intention of extorting money from the Bank and for the purpose of harassing the Bank and its officials. He submitted that the complaint u/s 52 read with Section 43 of the M.R.T.P. Act could be filed only by the authority under the said Act after notice is issued by the Planning Authority u/s 52 of the said Act and if there is a contravention of the said notice, the authority alone can file the complaint. He submitted that the same was the case in respect of complaint under the provisions of the Environment Protection Act, 1986. He submitted that on this ground, the said complaint is liable to be quashed. He invited my attention to the receipts issued by respondent No. 2 for withdrawing the earlier complaints which were filed by him. He submitted that therefore, even if averments in the complaint is accepted on its face value, the said complaint is not maintainable; and secondly, it was submitted that the said complaint was filed with mala fide intention to seek vengeance against the applicants and the Bank and to extort money with the help of police authorities who appeared to be hand in glove with them.
7. Respondent No. 2 appeared in person and vehemently urged that applicants were trying to mislead the Court. In the affidavit-in-reply he has given details of number of complaints which he has filed against the Bank. He submitted that there was sufficient documentary evidence to prove the allegations made in the complaints. He denied the allegations made by the applicants and Bank that he wants to extort money from them. He urged that he had sufficient money and in fact had offered deposit of Rs. 90 lacs in the Bank as fixed deposit and had of fered help to the Bank for the purpose of carrying out the repair works. However, his offer was not accepted. He also submitted that the applicants/Bank had approached Dinesh Afzalpurkar, the Ex. Chief Secretary of the State of Maharashtra, who had intervened and on his request he had accepted the amount and settled the disputes and withdrawn the earlier complaints. He also submitted that he has successfully fought a litigation even against British Airways for about 11 years in which he finally succeeded and the British Airways had to pay compensation to him. He also urged that he travelled in First Class in British Airways number of times in a year and therefore, the allegation of extortion was vehemently denied. He relied on dictionary meaning of the word "extortion" as laid down in Webster�s Third New International Dictionary, Law of Lexicon and Judicial Dictionary by Justice L. P. Singh.
8. I have heard the learned APP for the State, who submitted that investigation is going on and there is indication of commission of offence by the Bank and its officials.
9. I have heard the learned Counsel appearing for the applicants, the learned APP for the State and respondent No. 2 who is appearing in person, and given anxious consideration to their submissions. I am of the view that there is much substance in the submissions made by the learned Counsel for the applicants and they have made out a case for quashing the complaint filed by respondent No. 2 in the Court of Metropolitan Magistrate and the FIR which has been registered by the police, pursuant to the said order dated 5th March, 2010 for the following reasons.
10. In the present case, the admitted position is that the Bank is the landlord of the property known as "Laxmi Sadan". Respondent No. 2 who is an architect by profession is the tenant of the Bank, occupying one of the flats in the building and his father was owner of the property at one time before it was sold to the third party from whom the Bank purchased the property in 1968. The property is 75 years old and the Bank decided to carry out repairs and renovation. Respondent No. 2 had offered the officers of the Bank to provide assistance to the Bank by giving professional advise. The offer was not accepted by the Bank. Thereafter, complainant filed various complaints against the Bank and its officers to the various authorities. Respondent No. 2 in his affidavit-in-reply has given a list of complaints and the grounds therefore, filed by him in paragraph 10, which reads as under
10. I say from March 17, 2008 to September 22, 2008, I made complaints to
� The BMC Head Office
� The Additional Municipal Commissioner
� The Executive Engineer (Building Proposal) City-1, �E� Ward Municipal Office, Byculla, Mumbai
� The Assistant Municipal Commissioner, �D� Ward Municipal Office.
� The Assistant Engineer (B and F), �D� Ward Municipal Office.
� The Senior Inspector of Police, D.B. Marg Police Station, Mumbai-400 007.
ON THE FOLLOWING GROUNDS -
a) Structural Alterations carried out at 357/359 V.P. Road, Laxmi Sadan without mandatory permissions.
b) Monsoon shed erected without mandatory permission to conceal the illegal work being carried on inside.
c) Pitched roof and trusses demolished without mandatory permission, all internal columns and walls demolished.
d) Damage being done to the R.C. Roof-slab of flat No. 17 which was repaired and restored by me at my own cost just a year ago.
e) Safety of pedestrians on steel below was compromised.
f) Debris and dirt kept flying out of first and second floor windows, polluting the street and atmosphere as demolition work was being done without the mandatory tarpaulin/ cladding in place as required by the BMC. Residents of Raval Building from across the street also complained.
g) Inspite of the D. B. Marg Police having arrested them earlier, construction workers are allowed to live/stay overnight in the Bank and they create noise and nuisance at midnight.
h) Full window and glass came crashing down on two occasions to the first floor terrace from the second floor and luckily nobody was killed.
i) Rainwater outlet of first floor terrace is blocked/choked several times with rabid. The terrace floods several times, becomes a breeding ground for mosquitoes and the hotelier tenant�s celling below could have caught fire.
j) In days of power shortage, the Bank�s air-conditioners were left running all night with nobody inside the locked premises of the Bank.
k) On Saturday, August 23, 2008 at 8.30 P. M. one construction worker (Azmul Khan) was caught red-handed trying to commit theft inside the bedroom of our Flat No. 17.
11. Thereafter again the matter was settled between the parties on payment of Rs. 27,000/- to respondent No. 2 which fact is admitted by respondent No. 2 in paragraph 23 of his affidavit-in-reply which reads as under
I say on July 16,2009 I received a payment of Rs. 27,000/-from Mr. Ram Moonje who made it on his own free will and accord, being payment towards all legal expenditure incurred by me from January 2009 to July 2009 and this payment was part of our agreement terms. I say I issued a receipt for the same.
I say I stopped the process of moving Court and withdrew the Police Complaints. I say this shows that there is no iota of truth in the false allegations and complaints made by Mr. Mahesh Aras and Mr. Rajesh Kamat, who have stated that I first lodge false complaints and then approach the Bank for a settlement.
12. However, he further states in paragraph 24 of his affidavit-in-reply that he had written a letter to Bank�s CEO that their contractor had damaged the external wall, paint, glasses and doors of flat No. 17 and asked the Bank to restore the damage by paying compensation of Rs. 7,500/- and the Bank was also threatened that if this payment is not made, he would move the Court for the same. According to them, the Bank made payment of Rs. 7,500/- which is admitted by respondent No. 2 in paragraph 26. Thereafter in paragraph 27 he has stated that on account of noise pollution, nuisance, hardship, threats, damage, inconvenience and harassment all over again with the Bank�s renovation work in full progress, and therefore, he filed two criminal complaints - (a) Complaint No. 01/SW/2010 dated 1st January, 2010 was against the two Bank officers and the Bank AGM u/s 323, 504, 506, 420, 425, 426, 427 of the I. P. Code; (b) Complaint No. 37/SW/2010 dated 5th March, 2010 is the subject matter of this application.
13. Respondent No. 2 at page 13, sub-paragraph (x) of his affidavit-in-reply has stated that he lodged the complaints on 26th October, 2009 and 10th November, 2009 with -
(a) the Disaster Management Cell, MCGM Head Office, Mumbai;
(b) The Chief Engineer, Vigilance Dept., BEST, Mumbai;
(c) The Chief Fire Officer, Mumbai Fire Brigade, Byculla;
(d) The Officer-in-Charge, Memonwada Fire Staton, Mumbai;
(e) The Assistant Municipal Commissioner, �D� Ward, Mumbai;
(f) The Assistant Commissioner of Police, Main Police Control Room, Mumbai;
(g) The Assistant Commissioner of Police, Girgaum, Mumbai.
14. Then in paragraph 29 of the affidavit-in-reply, respondent No. 2 has stated that he has made complaints and has taken advise from the Anti-Corruption Bureau, Mumbai. Then he has also admitted that he had informed the applicants that for the purpose of settlement of the two criminal complaints filed by him in the Metropolitan Magistrate Court, the damages/costs could run anywhere between Rs. 1 lakh and Rs. 2 lakhs. He has further denied that he had ever offered to compromise on a condition or made a demand of Rs. 2 lakhs in return of compromise for out of Court settlement. In paragraph 35 he further states as under-
I say that few years ago after an eleven year long drawn Court battle with the world�s largest airline British Airways, I was awarded a compensation/damages of Rs. 1,35,000/- by the Honourable Court as the airline had failed to provide me any vegetarian meals thirty times in the First Class on the Mumbai-Los Angeles-Mumbai Sector.
15. While exercising inherent powers u/s 482 Cr.P.C. the Court has to be very cautious before quashing a criminal complaint. The Apex Court has in the case of State of Haryana v. Bhajanlal AIR 1992 Supreme Court 604 laid down the circumstances under which the High Court can exercise these powers, in paragraph 108 as under-
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers u/s 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirity do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers, u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a covnizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive or wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
16. Keeping the said principles in mind, in my view, the applicants have made out the case for quashing of the complaint. In the present case, in the complaint it is alleged that the Bank has violated the provisions of M.R.T.P. Act, the Environment Protection Act and the Indian Penal Code. So far as the provisions of the M.R.T.P. Act and the Environment Protection Act are concerned, no complaint has been filed on behalf of the Planning Authority or the competent authority and as such no grievance has been made by these authorities, alleging that unauthorized, illegal repairs were carried out by the applicant Bank. So far as the offences punishable under I.P.C are concerned, the applicant No. 1 is a Chairman of the Bank, applicant No. 2 is an employee of the Bank. There is no allegation made in the complaint that the applicants are personally responsible for the alleged aforesaid offences which have been committed under the I.P.C.
17. There is much substance in the submissions made by the learned Counsel appearing on behalf of the applicants. Respondent No. 2 has admitted in his affidavit in reply the number of complaints which he has filed against the Bank from time to time. He has also admitted that after the matter was settled after accepting the compensation, he has withdrawn all complaints. In the present case, it is an admitted position that no action has been taken by the authorities under the Maharashtra Regional Town Planning Act for the alleged violation of provisions of Section 52 of the said Act and/or other provisions of the said Act, nor any action has been taken by any of the authorities under the Environment Protection Act, 1986. Respondent No. 2 at one time was the landlord of the said premises which is now owned by the Bank. Respondent No. 2 appears to be a well educated businessman, having financial means and also appears to be well contacted in view of whatever is stated in the affidavit-in reply. The police at D. B. Marg Police Station, Mumbai also appears to be at his beck and call. He also appears to have some clout in various departments of the Government and the BMC and his affidavit-in-reply itself indicates that he has been approaching the various authorities against the Bank and its officials. In my view, therefore, there is sufficient material on record which indicates that respondent No. 2 has been filing complaints against the Bank and its officials with a mala fide intention of harassing them. Respondent No. 2 also appears to be in the habit of filing complaints and court cases which is evident from the averments made in his affidavit in reply wherein he has proudly stated his past achievement of litigating against British Airways for 11 years and succeeding in getting damages. In the present case, Respondent No. 2, after having made allegations and complaints to the police and various other authorities has withdrawn these allegations after accepting compensation from the Bank and, thereafter, he has continued to file the same complaints after having settled the dispute with the Bank after accepting the compensation. This conduct of Respondent No. 2 clearly establishes that the Respondent No. 2 has abused the process of the court for the purpose of settling his personal score with the Bank.
18. The complainant has himself admitted that he had filed similar complaints and the said complaints were withdrawn by him after accepting the compensation. This was happened at least more than three occasions and even in this case though it appears that he has not demanded that amount, he has informed the Bank that compensation may run anywhere between Rs. one to two lakhs. The complainant therefore, appears to be in the habit of filing the complaints against the Bank since last 2-3 years, which has been admitted by him in his affidavit-in-reply.
19. The present case, therefore, squarely falls in number of illustrations given by the Apex Court in the case of State of Haryana (supra). In my view, therefore, this is a fit case wherein this Court in exercise of its inherent jurisdiction can quash and set aside the criminal complaint and the order dated 5th March, 2010 passed by the learned Magistrate directing investigation pursuant to the said order and the FIR registered against the applicants.
20. In the result, application is allowed in terms of prayer Clauses (b) and (c). The order dated 5th March, 2010 passed by the learned Additional Chief Metropolitan Magistrate, 18th Court, Girgum in Criminal Complaint No. 37/SW/2010 is quashed and set aside. Similarly, Criminal Complaint No. 37/SW/2010 filed by respondent No. 2, pending before the said Metropolitan Magistrate, and the FIR registered by the Dr. D. B. Marg, Police Station is also quashed and set aside.
