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In a recent judgment dated 21st May 2019 the Delhi HC in the matter of Jagdish Kapila v. Raj Kumar & Anr has been laid down that “no charge under section 447 of the Indian Penal Code can be framed against the petitioner when parting of possession cannot be proved”. The HC while setting aside the Trial Court order said that it is erroneous on the part of Trial Court to frame the charges merely on the presumption that the complainant was in possession of the shop.
The current matter is related to a shop which is located in R. K. Puram area of New Delhi. The said shop was allotted to the petitioner by NDMC. However, the Respondent had filed a complaint before the trial court contending that petitioner had agreed to rent out the shop to the respondent and had demanded an advance of Rs.50, 000/- for the same. It was alleged that Rs.50,000/- was paid as advance and keys were delivered on 18.01.2011 but there are no documentary evidence to show any discussion with regard to renting out of the shop by the petitioner, payment of money by the respondent, and handing over of possession to the respondent.
The Trial court after hearing the matter has framed the charges against the current petitioner under the Section 447 of IPC which dealt with punishment for Criminal Trespass. The definition of trespass in IPC is under Section 441 of the Act which says that the criminal act of trespass is 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 counsel for the petitioner in current matter has submitted before the court that the trial court had erred in framing the charge of trespass and has overlooked the fact that petitioner is the allottee and is 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 HC after hearing the counsels have found that the Trial Court was not right in framing charge under section 447 IPC against the petitioner and set aside the order of the Trial Court disposed the petition by saying that the charges framed against the petitioner are not sustainable under law.
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