R.N. Biswal, J.
1. This CRLMC arises out of a petition filed under Section 482 of Cr.P.C. wherein the petitioner has prayed for quashing the complaint petition in I.C.C. case No. 243 of 1996 pending in the Court of J.M.F.C., Cuttack.
2. The petitioner is the accused and the opp. party is the complainant in the aforesaid case. As per the complaint petition, one Agani Sahoo leased out Plot Nos. 855-Ac.022, 856-Ac. 0.11, 857- Ac. 0.24 and 858-Ac. 0.06 decimals with total area of Ac. 0.68 decimals appertaining to Hal Khata Nos. 2185 and 2187 corresponding to C.S. Khata No. 130 situated in mouza Kusunpur (Etmaran bazaar) under Purighat Police Station, Cuttack with a building and some thatched houses to the accused. The complainant purchased the said land with structure standing over it through a registered sale deed on 5.8.1996. After selling the said land along with structure standing over it, Agani Sahoo sent a registered letter to the complainant intimating him that he was no more his landlord in respect of the aforesaid land along with the structure over it, but it was returned with an endorsement 'Absent since long'. The complainant who is an advocate being in need of accommodation for residential purpose as well as for his chamber sent a notice under Section 441 I.P.C. by registered post with A.D. to the accused to vacate the aforesaid land with structure within one month from the date of receipt of the notice. In spite of receipt of notice he did not respond to it. So the complainant lodged an F.I.R. against the accused at Purighat Police Station. As no action was taken, he filed the aforesaid complaint case before the Court of S.D.J.M. (Sadar), Cuttack to take action for the offence under Section 448 I.P.C. against him. The S.D.J.M., after recording initial statement of the complainant took cognizance of the offence under Section 448 I.P.C. against the accused and transferred the case to the Court of J.M.F.C., Cuttack.
3. The present CRLMC has been filed to quash the complaint petition of the said case.
4. Learned Counsel appearing for the accused/petitioner submitted that as per the complaint petition Agani Sahoo had leased out the aforesaid land along with the structure over it to the accused-petitioner on monthly basis. He further submitted that said Agani Sahoo entered into an agreement with the accused to sell him the aforesaid land along with the structure after his return from abroad. On return, when he did not execute the sale deed in favour of the accused/petitioner, he filed Title Suit No. 276 of 1996 before the Court of Civil Judge (Senior Division) First Court, Cuttack for specific performance of contract. Simultaneously he also filed a petition under Order 39 Rule 1 and 2 C.P.C. for injunction. However, the trial Court passed order to maintain status quo ante in respect of the disputed land with structure over it. While the status quo order was in force the complainant being fully aware of the said order purchased the said land with structure. So, the accused/petitioner made him a party in the suit as lis pendense purchaser. He further submitted that the complainant/opposite party, after being made a party in the suit filed a counter claim against the accused/petitioner praying for delivery of possession of the disputed property in his favour. The accused/petitioner filed another petition under Order 39 Rules 1 and 2 C.P.C. with a prayer to restrain the complainant/Opp. Party from creating any disturbance in his peaceful possession over the disputed property. The learned Civil Judge held that there was a prima facie case in favour of the petitioner, balance of convenience leaned in his favour and that he would sustain irreparable loss if the injunction order was not passed in his favour. But he rejected the petition observing that since the Opp. Party therein (complainant/opposite party) is an advocate he would not create disturbance in the peaceful possession of the accused/ petitioner over the said property. Being aggrieved with this order the accused/petitioner preferred Misc. Appeal No. 100 of 1998 before this Court wherein it was ordered that the complainant/opposite party would not forcibly evict the accused/petitioner from the disputed property and that the latter would pay Rs. 500/- per month towards rent to the former. Accordingly, he was paying the same. The petitioner entered the disputed premises and the appurtenance thereto lawfully. So, the learned Counsel for the accused/petitioner submitted that the petitioner cannot be liable for the offence under Section 448 I.P.C. In support of his submission he relied upon a Division Bench decision of this Court in Akapati Bhaskar Rao v. Trinath Sahu and Anr. Per contra, learned Counsel appearing for the Complainant/Opp. party submitted that after Agani Sahoo sold the disputed land with the structure to the Complainant/Opp. party he issued a notice to the accused/petitioner indicating that he was no more his landlord in respect of the disputed property and requested him to contact the Opp. party/Complainant. Since he deliberately avoided to receive notice the Complainant/opp. party issued him a notice under Section 441 I.P.C. as amended by the Orissa Act 22 of 1986 to vacate the aforesaid land with structure within one month of receipt of the said notice. When the said premises with appurtenance were not vacated he filed the complaint case. As per the submission of learned Counsel for the complainant/ opp. party the accused/petitioner entered the disputed premises lawfully but after receipt of the notice sent by Complainant/opp. party when he did not vacate possession of it his possession therefrom became illegal. So, the trial Court rightly took cognizance under Section 448 I.P.C. against the accused/petitioner. He further submitted that he petitioner lost the Title Suit No. 276 of 1996 and preferred an appeal before this Court, which is subjudice. Even if the appeal is pending there is no bar to proceed with the I.C.C. case No. 243 of 1996. In support of his submission he relied upon the decisions 'Commissioner of Income Tax, Mumbai v. Bhupen Champak Lal Dalal' : [2001]2SCR178 and State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd. and Ors. 1996 (I) O.L.R. (S.C.) 411.
5. Admittedly, Agani Sahoo was the owner of the aforesaid land with structure over it. Accused/Petitioner was continuing as tenant therein. While the tenancy was in force, he filed T.S. No. 276 of 1996 before the Civil Judge (Senior Division), First Court, Cuttack, claiming specific performance of contract. While the suit was pending, Agani Sahoo transferred the disputed property through a registered sale deed to the complainant-opp. party. So at best the complainant-opp. party would step into the shoes of Agani Sahoo, his vendor. When the accused/petitioner did not vacate the house with appurtenance in spite of receipt of notice from the Complainant/opp. party he may be treated as tenant on sufferance or tenant holding over. In the decision of Akapati Bhaskar Rao (supra) cited on behalf of the accused/petitioner it has been held by this Court that the rigor of Section 441 I.P.C. as amended by Orissa Act 22 of 1986 shall not be applicable to the following cases;
(i) Statutory tenants whose tenancy is governed by any statute (they are protected by tenancy laws like Public Premises Eviction Act etc.)
(ii) Tenant who has entered into possession by virtue of a lease.
(iii) Person who has entered into possession by virtue of some covenant like, agreement to sell, will etc, and/or put forth a genuine right over the property possessed.
6. In the present case as stated above the accused/petitioner entered into possession of the disputed land along with the structure on the basis of lease. Moreover, as stated earlier in Misc. Appeal No. 100 of 1996 this Court held that the complainant-Opp. Party would not forcibly evict the accused/ petitioner from the disputed property. As submitted by learned Counsel for the petitioner, the petitioner has been paying rent to the complainant-opp. party. So he cannot be liable under Section 448 I.P.C.
7. In the decision reported in : [2001]2SCR178 (Supra) relied upon by learned Counsel for the opp. party it was held that:
The prosecution in criminal law and proceedings arising under the Act are undoubtedly independent proceedings and therefore, there is no impediment in law for the criminal proceedings to proceed even during the pendency of the proceedings under the Act. However, a wholesome rule will have to be adopted in matters of this nature where Courts have taken the view that when the conclusions arrived at by the appellate authorities have a relevance and bearing upon the conclusions to be reached in the case necessarily one authority will have to await the outcome of the other authority.
8. This decision is not applicable to the present case since it is not the case of accused-petitioner that further proceeding in the complaint case should be stayed till disposal of the title appeal. Similarly in the decision reported in 1996(1) O.L.R. S.C. 411 (Supra) it has been held that pendency of criminal case is not an impediment to proceed with the civil suit. So, this decision is also not applicable to the case at hand.
9. As I have held earlier, the accused-petitioner cannot he liable for the offence under Section 448 of I.P.C. even if the allegation as depicted in the complaint petition remains unrebutted. Under such premises, no useful purpose would be served in proceeding with the case. So the complaint petition registered as I.C.C. Case No. 243 of 1996 pending in the Court of J.M.F.C., Cuttack is hereby quashed.