Nagpur: In a major respite to the senior management of city’s famous Trilium Mall, situated at Medical Square, the District & Sessions Court here presided by Judge Shri A.M Deshmukh has granted anticipatory bail to the employees by imposing certain conditions.
The case arose out of a dispute between the mall management and one of the store operators- Fabrica stores owing to defaults made by the store operator in payment of rent and electricity dues. The store operator under the garb of the outbreak of corona pandemic wanted waivers in the payments due to loss of business and had also approached the Civil courts seeking protection from eviction and declarations against the Mall management. The store also had huge quantity of stock belonging to the store operator and he had sought permission from the civil courts to remove the stocks. The said application came to be rejected by the civil court on 6.5.2022 and was resisted on the ground that the Mall management has lein over the same for recovery of it’s outstanding dues. Following this, the mall management terminated the agreement and also informed the operator that his stock is being moved to the storage area.
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The operator- Shohaib Sheikh Parvez having failed to get any reliefs from the civil court made a criminal Complaint to the Police Station that the mall management has thus committed trespass and theft of it’s stock of approximate value of Rs. 82 Lakh. Upon this complaint, the senior staff of the mall management came to be booked in Crime No.165/2022 registered by Police Station, Imamwada, Nagpur for the offences punishable under Section 448 & 380 of the Indian Penal Code. Employees Ashok Choudhary, is the Senior Manager employed with Trilium VR Mall, while the Kushal Raichada is the Senior Manager (Finance & Accounts).
The employees therefore moved the District & Sessions court on 6.6.2022 seeking protection from arrest and the learned Sessions court firstly granted them ad interim anticipatory bail and directed to join the investigation and co-operate in the same. Thereafter, upon elaborate hearing of the matter and also hearing the Police as well as the complainant opposing the plea observed that it is worth to consider the ingredients in definition of the theft. The main ingredient of it is dishonest intention to move movable property out of possession of any person without that person’s consent. So dishonest intention to move the property without consent attracts offence. Explanation5 of Section 378 of IPC stipulates that consent mentioned in the definition includes consent by any person having for that purpose authority either express or implied.
Further that Documents on record reflects that on 20/05/2022 by email and by other mode notice of termination of agreement was given to the informant’s, entity M/s Fabrica Associates by management of Mall. In para3 of this notice, it clearly
mentioned that, “Further please note that Fabrica’s goods / belongings have been moved to the storage area of the Mall”. In the said notice in schedule outstanding amount as on 31/03/2022 is mentioned as Rs.52,26,462/. against informant and informant is called upon to pay this amount. Thereafter the report of Chartered Accountant namely Anubhav Asati & Co. reveals that detail inventory of fixed assets from printer to furnitures and of garments with all particular is prepared in which total quantity of items are shown as 1756 + 252 Total 2008 items. It is the specific submission of the applicants that by preparing this inventory of the items for the purpose of fire audit of the garments and accessories are kept in the store of the mall. Though civil lis is pending before the Civil Court, there is no order thereby restraining management of the mall for maintaining status quo or for not moving the garments, furnitures and accessories of the said shop. Moreover, application moved by the informant for the possession of garments from the said shop has already been rejected by the Civil Court.
The Court observed that from the civil litigation and documents on record, it appears that there is substantial outstanding amount towards rent and otherwise pending against informant. In that event this Agreement of Leave and Licence executed between informant and management of mall give express authority to management of mall being licensor to take possession of stockintrade and fitting and fixtures as lien. Thus though moving of garments and other assets are not disputed by the applicants, in view of documents filed on record and its contents prima facie dishonest intention does not appear and get attracted. The articles which have been moved by the applicants by preparing its detail inventory have not yet disposed of by the applicants as per their submission. Therefore, material ingredient of section 380 is not prima facie attracted in this peculiar facts and circumstances in the instant crime. In view of above observations, the District judge proceeded to grant anticipatory bail to the applicants and imposed conditions upon them. Advocates Aakash Gupta & Roshan Suryavanshi appeared for the Trillium mall employees while App khule represented the state.
