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2019 (4) TMI 1948 - SUPREME COURTEviction of shop - tenancy - contradictions in the statement of witnesses on the point of occurrence - Whether the Judicial Magistrate was right in holding that a prima facie case is made out against respondent Nos.2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 IPC so as to call upon them to face the trial on merits or whether the High Court was right in holding that no prima facie case has been made out against respondent Nos.2 and 3? HELD THAT:- First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint prima facie make out the offences falling under Sections 323, 379 read with Section 34 IPC or not - Instead the High Court in Para 6 gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the parties - This approach of the High Court is faulty. The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not - The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizance is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence - the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case. The reasoning and the conclusion arrived at by the High Court for quashing the complaint filed by the appellant against respondent Nos. 2 and 3 is not legally sustainable and hence it deserves to be set aside - Appeal allowed - decided in favor of appellant.
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