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Judicial intervention: The High Court of Karnataka strikes down proclamation order in pujar bitcoin case  

Case title:   SHRIDHAR K PUJAR VS STATE OF KARNATAKA

Case no.: CRIMINAL PETITION NO. 2380 OF 2024 C/W CRIMINAL PETITION NO. 2916 OF 2024 CRIMINAL PETITION NO. 2925 OF 2024

Dated on: 02th May 2024

Quorum: HON’BLE MR JUSTICE V SRISHANANDA

FACTS OF THE CASE

The Petitioner is a Police Officer of Dy.S. P rank. Allegations are leveled against him that he was involved in interfering with the true course of justice inasmuch as he had interfered with the investigation of Crime Nos.91/2020 and 287/2020 registered in the file of K.G. Nagara Police Station and Ashok Nagara Police Station respectively. In respect of those crimes when the investigation was under process, the petitioner said to have been found in the company of the Lawyer who represented the accused therein. He was required to accompany the Police personnel who had spotted him in the car. At that juncture, he escaped from the clutches and he is not available to the Police is the allegation. Based on the said incident, a case came to be registered against the petitioner in Crime No.19/2024 and Crime No.1/2024 and attempts were made by the petitioner to obtain an order of grant of Anticipatory Bail were rejected. It is also submitted that a Coordinate Bench of this Court also rejected the anticipatory bail request of the petitioner and thereafter he is not available to the Investigation Agency. In the meantime, the prosecution has filed an application seeking proclamation as against the petitioner. The material on record discloses that before issuing a Proclamation Order necessary procedural formalities are not carried out and therefore the very issuance of proclamation is questioned by the petitioner in Criminal Petition No.2925/2024. Fact remains that till today the petitioner is not available to the Investigation Agency. In Criminal Petition Nos. 2380/2024 and 2916/2024 the petitioner is seeking quashing of two criminal cases registered in Crime Nos.19/2024 and 1/2024.

 

ISSUES

  • Whether at all the allegations leveled against the petitioner is true or not cannot be decided by this Court at this stage, as the case against the petitioner is still in the inception stage?
  • Whether the issuance of a proclamation order was procedurally correct.
  • Whether the FIRs against the petitioner should be quashed.

LEGAL PROVISIONS

Indian Penal Code (IPC)

Section 343: Punishment for wrongful confinement for three or more days.

Section 344: Punishment for wrongful confinement for ten or more days.

Section 409: Criminal breach of trust by a public servant, or by banker, merchant or agent.

Section 426: Punishment for mischief.

Section 34: Acts done by several persons in furtherance of common intention.

Section 201: Causing disappearance of evidence of offence, or giving false information to screen offender.

Section 204: Destruction of document or electronic record to prevent its production as evidence.

Information Technology (IT) Act, 2000

Section 66: Computer-related offenses, including hacking and unauthorized access.

Section 84C: Punishment for attempt to commit offenses.

Criminal procedure code 1973

Section 482 of the Cr.P.C. Section 482 of Cr.P.C.: Saving of inherent powers of High Court. The section grants inherent powers to the High Court to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice.

CONTENTIONS OF THE APPELLANT

Sri. Aruna Shyam learned Senior Counsel submits that in view of the directions issued by this Court in the above criminal petitions, he would not press the anticipatory bail application pending in Criminal Petition No.3062/2024.The petitioner challenged the procedural correctness of the proclamation order. He sought quashing of the FIRs registered in Crime Nos. 19/2024 and 1/2024.He expressed willingness to join and cooperate with the investigation.

CONTENTIONS OF THE RESPONDENTS

The prosecution highlighted the petitioner’s non-cooperation and absconding behaviour. The prosecution requested the court to mandate the petitioner’s participation in the investigation.

COURT’S ANALYSIS AND JUDGEMENT          

Having heard the parties and perused the material on record, it is crystal clear that the petitioner is not available to the Investigation Agency till now. The attempts made by the petitioner to submit himself for the process of law by seeking an order of grant of anticipatory bail is turned down by the learned District & Session Judge and a Coordinate Bench of this Court. It is a settled principles of law and requires no emphasis that every accused is presumed to be innocent unless the allegations leveled against him stands proved before the court of law beyond all reasonable doubts. However, the prima facie material would reveal that the petitioner said to be involved in helping the accused in crime No.91/2020. Fact remains that unless the petitioner joins the investigation and cooperates with pending investigation in respect of Crime No.19/2024 and crime No.1/2024 no useful purpose would be served by simply keeping the investigation pending. More so, the petitioner being the Police Officer by himself of Dy. SP rank. Under the above peculiar facts and circumstances of the case and in view of the submissions made on behalf of the petitioner that he would be interested in joining the investigation and cooperate with the investigation to the fullest extent subject to the rights of the petitioner as enshrined under the provisions of Constitution, an arrangement needs to be made which would strike a harmonious balance between the rights of the petitioner and the need of the prosecution. Therefore, without expressing further opinion on the merits of the matter, without holding mini enquiry, if the petitions are disposed of by directing the petitioner to join the investigation and cooperate with the investigation process, would meet the ends of justice. Having said thus, it is settled principles of law that generally FIR cannot be quashed unless it has acted prejudicial to the interest of the petitioner and by the allegation found in the complaint, no case is made out against the accused/petitioner. In the case on hand, there is no special reason for this Court to quash the FIR itself. Criminal Petition No.2925/2024 is Allowed. Order of proclamation passed by the learned Trial Judge as against the petitioner stands quashed, on account of procedural irregularities. Petitioner is at liberty to appear before the Jurisdictional court and subject himself for investigation process. Criminal Petition Nos.2380/2024 and 2916/2024 are Disposed Of with the following conditions: Petitioner shall positively join the investigation on 08.05.2024 by appearing before the Investigating Officer at 9.00 a.m., Investigating Officer is at liberty to take the petitioner to the judicial custody and conclude the custodial investigation on the very same day before 6.00 p.m. Petitioner shall completely cooperate with the Investigation Agency. Prosecution shall not indulge in extra-judicial methods while investigating the matter. On conclusion of the custodial investigation, the petitioner shall be let free by taking a bond in a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties to the satisfaction of the Investigation Officer. Further, the petitioner is directed to appear before the Investigation Officer as and when called and shall not in any way tamper the prosecution evidence.  In view of the fact that the petitioner has agreed to join the investigation, bail application if any to be filed by the petitioner shall not be opposed by the prosecution. However, disposal of the present petitions would not come in the way of the petitioner in challenging the final report, if it goes against him.

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Judgement Reviewed by – HARIRAGHAVA JP

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Karnataka High Court Upholds Lower Courts’ Decision on Section 138 of Negotiable Instruments Act 1881 in Cheque Dishonor Case

Karnataka High Court Upholds Lower Courts’ Decision on Section 138 of Negotiable Instruments Act 1881 in Cheque Dishonor Case

Case title: MR. B H SHIVANANDA VS MR S SATHISH CHAWLA

Case no.: CRIMINAL REVISION PETITION NO. 824 OF 2016

Dated on: 28th May 2024

Quorum:  Hon’ble. MR JUSTICE S RACHAIAH

FACTS OF THE CASE

It is the case of the complainant that the accused is an absolute owner of the property situated at Mudhugurki Village, Vijipura Hobli, Devanahalli Taluk, Bengaluru Rural District and he intended to sell it to the complainant. The complainant on negotiation, paid a sum of Rs.2,96,000/- and got the sale agreement executed. Due to some misunderstanding, the said sale agreement needed to be cancelled and the accused agreed to return the amount which he had received towards the sale agreement. Accordingly, a cheque for a sum of Rs.3,16,000/- was issued to the complainant. The cheque was presented on 04.01.2010 by the complainant for encashment, however, it came to be dishonoured with an endorsement as ‘payment stopped’. The complainant issued a legal notice calling upon the accused to repay the amount. Despite the notice being served, the accused failed to repay the amount. Hence, the complaint came to be filed before the Jurisdictional Magistrate. To prove the case of the complainant, he himself examined as P.W.1 and got marked 16 documents as Exs.P1 to P16. On the other hand, the accused did not choose to examine any witnesses.

 ISSUES

  1. Whether the accused issued the cheque in question to the complainant for the discharge of a legally enforceable debt or liability?
  2. Whether the dishonor of the cheque with the endorsement ‘payment stopped’ constitutes an offence under Section 138 of the Negotiable Instruments Act?
  3. Whether the accused successfully rebutted the presumption that the cheque was issued for the discharge of a debt or liability?
  4. Whether the complainant proved the existence of the sale agreement and the transaction leading to the issuance of the cheque?

LEGAL PROVISIONS

Section: 397 of CR.P.C: The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding.

Section: 401 CR.P.C: Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat.

SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT: It states that returning of a cheque unpaid constitutes an offence only if such return is due to want of funds. Where the cheque is returned by the bank for want of full signature of the drawer, it does not constitute an offence U/S 138.

CONTENTIONS OF THE APPELLANT

It is the submission of learned counsel for petitioner that the findings of the Courts below in recording the conviction are not proper, therefore, the findings are required to be set aside. It is further submitted that the complainant contended that the accused was intending to sell the property and entered into an agreement of sale, therefore, he paid the amount. However, the said agreement stood cancelled due to some unavoidable circumstances and the accused agreed to repay the amount and issued the cheque. In fact, the complainant did not produce the said sale agreement. In the absence of the sale agreement, the liability to repay the amount would not arise. However, the Courts below failed to consider the said aspect and recorded the conviction, which is against the evidence on record. It is further submitted that even though the accused contended that he did not enter into any contract or any agreement with the complainant, the said contention was not considered by the Courts below. Further, the accused contended that he had no account in the ICICI Bank and the cheque did not belong to him, the said contention was also not considered by the Courts below. As a result, the impugned judgments have been passed and the same is liable to be set aside. It is further submitted that the complainant must have established that the cheque belonged to the accused, when the specific contention was taken by the accused that it did not belong to him. However, the complainant has not made any efforts to prove that the cheque belongs to the accused. The said contention of the accused has been uncontroverted. However, the Courts below failed to consider the said contention and passed the impugned judgments. Therefore, the said findings of conviction are required to be set aside. Making such submission, the learned counsel for petitioner prays to allow the petition.

CONTENTIONS OF THE RESPONDENTS

The learned counsel for respondent vehemently justified that the accused being an owner of the property was intending to sell the property. Accordingly executed the sale agreement after having received the part of sale consideration. Ex. P8 is an affidavit executed by the accused herein has admitted that he had sold four sites to the complainant. Similarly, the accused admitted that the complainant had paid part payment by way of cheque as well as cash. When the transaction is admitted by the accused and the affidavit executed to that effect, it can be said that the complainant has proved the transaction. It is further submitted that since the accused had admitted the transaction regarding the sale of sites, the issuance of the cheque after cancelling the said sale transaction cannot be denied at a later stage. Moreover, when the cheque was presented for encashment, the complainant received an endorsement as ‘payment stopped’. If the cheque did not belong to the accused, the banker would have issued an endorsement either as the signature differs or does not belong to the signatory. In the absence of this endorsement, the burden obviously lies on the accused to prove that the cheque did not belong to him. However, the accused had not made any efforts to prove that the cheque did not belong to him. In the absence of proof regarding the cheque which did not belong to him, the inference could be drawn that the cheque belongs to the accused. It is further submitted that the Courts below after appreciating the oral and documentary evidence on record, recorded the conviction which appears to be appropriate and relevant. Therefore, there are neither infirmities nor errors in the findings of the Courts below. Hence, it is not required to be interfered with the findings. Making such submission, the learned counsel for the respondent prays to dismiss the petition.

COURT’S ANALYSIS AND JUDGEMENT

THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE PASSED BY THE XIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU, IN C.C.NO.26550/2011 DATED 01-03-2014 FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. After having heard the learned counsel for the respective parties and also perused the findings of the Courts below, it is necessary to have a cursory look upon the evidence of P.W.1. According to P.W.1, the accused intended to sell the property. After negotiation, the complainant paid the amount to the accused as a part payment and got the sale agreement executed in respect of the property. However, due to some unavoidable circumstances, the sale agreement had to be cancelled. Further, P.W.1 stated that in lieu of the said cancellation, the accused stated to have issued a cheque for a sum of Rs.3,16,000/-. When it was presented it for encashment, it came to be dishonored as ‘payment stopped’. Before adverting to the facts of the case, it is necessary to refer the proposition of law regarding the Negotiable Instruments Act and also dictum of the Hon’ble Supreme Court on the said law. It is the settled principle of law that once the execution of the cheque is admitted by the accused, the Court has to raise a presumption that the said cheque has been issued for the discharge of debt or liability. The said presumption is rebuttable in nature, it can be rebutted by raising a probable defence by the accused. In the present case, the accused denied the issuance of the cheque and its execution, however, he has not made any efforts to prove that the cheque did not belong to him and he has not issued the cheque for any transaction with the complainant. It is also settled principle of law that mere denial of the transaction and issuance of the cheque is not sufficient to rebut the presumption. The accused except denial, he has not made any efforts to substantiate and prove the said denial. Therefore, I am of the considered opinion that the accused did not rebut the presumption. Moreover, the complainant produced several documents and got them marked to substantiate the transaction. When the accused failed to rebut the presumption, it is necessary to draw the adverse inference that the cheque has been issued for the purpose of discharge of legally recoverable debt or liability. In such a way, it can be conferred that the Courts below rightly appreciated the evidence and recorded the conviction. Therefore, interference with the said findings did not arise. Hence, I decline to interfere with said findings. The Criminal Revision Petition is dismissed.

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Judgement Reviewed by – HARIRAGHAVA JP

 

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Karnataka High Court Grants Conditional Bail in NDPS Act Case: Cited Insignificant Quantity of Ganja Seizure

Case Title – Abdul Bashir Vs. State of Karnataka
Case Number – CRL.P. No. 4147/2024
Dated on – 16th May, 2024
Quorum – Justice H.P. Sandesh

FACTS OF THE CASE
In the case of Abdul Bashir Vs. State of Karnataka, the Appellant, Abdul Bashir, a 34-year-old resident of Gullanpete Village, Aldur Hobli, Chikkamangaluru, Karnataka. On credible information, the Aldur Police found the Appellant watering 12 Ganja (cannabis) plants. The Police seized 80 grams of Ganja leaves and apprehended the Appellant, who initially refused to accompany them. The Appellant was charged under Section 20(a)(i) of the Narcotic and Psychotropic Substances Act, 1985 for cultivating Ganja plants.

ISSUES
Whether the Appellant should be granted bail under Section 439 of the Code of Criminal Procedure, 1973 for the alleged offence under Section 20(a)(i) of the Narcotic and Psychotropic Substances Act, 1985?

Whether the small quantity of Ganja leaves seized from the Appellant can justify the continued detention of the Appellant?
Whether the State has sufficient evidence to support its allegations against the Appellant and whether there is any indication of a motive to falsely implicate him?

LEGAL PROVISIONS
Section 20(a)(i) of the Narcotics Drugs and Psychotropic Act, 1985 prescribes the Punishment for production, manufacture, sale, purchase, import and inter-state export of cannabis

Section 439 of the Code of Criminal Procedure, 1973 prescribes the Special Powers of the High Court or Court of Session regarding bail

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that only 18 grams of Ganja leaves were seized, which is a small quantity?

The Appellant asserted that the property where the Ganja plants were found did not belong to him and that the police falsely implicated him by planting the Ganja plants and taking photographs to fabricate evidence.
The Appellant had no prior criminal records, bolstering his claim for bail.

 CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case contented that 12 Ganja plants were indeed found and there was no motive to falsely implicate the Appellant.

It was contended that the Appellant was not only cultivating but also consuming Ganja, justifying his detention

COURT ANALYSIS AND JUDGMENT
The court in the case of Abdul Bashir Vs. State of Karnataka, observed that the small quantity of seized Ganja leaves (18 grams) and recognized the distinction between this and the larger quantities in terms of severity. Despite the cultivation of 12 Ganja plants, the court considered the smaller quantity of Ganja leaves seized. The court decided of grant bail, emphasizing the smaller quantity involved and the lack of significant evidence of criminal intent beyond cultivation. However, to safeguard the interest of the prosecution, specific conditions were imposed on the Appellant. The court allowed the bail petition under the conditions that the Appellant must execute a personal bond of INR 2,00,000/- with two sureties of the same amount to the satisfaction of the jurisdictional court, that the Appellant shall not tamper with the witness of the prosecution and that the Appellant must appear before the jurisdictional court on all future hearing dates exempted by the court for a genuine cause.

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Judgement Reviewed by – Sruti Sikha Maharana
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Cyber Harassment and Extortion: The Karnataka High Court Grants Bail with Conditions in Instagram Blackmail Allegation

Case Title – Akshay @Arjun Vs. State of Karnataka
Case Number – CRL. P. No. 4163/2024
Dated on – 16th May, 2024
Quorum – Justice H. P. Sandesh

FACTS OF THE CASE
In the case of Akshay @Arjun Vs. State of Karnataka, the Appellant, Akshay is accused of blackmailing a woman he met on Instagram. The Appellant allegedly asked the woman for her nude pictures and after she sent them, the Appellant demanded for INR 1,00,000, threatening to share the images with her family and friends if she did not comply. The complaint was instituted by the woman, leading to the registration of Crime No. 593/2024 by the CEN Police Station, Bangalore City. The Appellant sought anticipatory bail under Section 438 of the Criminal Procedure Code, 1973.

ISSUES
Whether the Appellant is entitled to bail under Section 438 of the Code of Criminal Procedure, 1973, given the accusations against him?

Whether the accusations and the nature of the offense justify denial of bail to prevent tampering with the evidence or further harassment of the complainant?

LEGAL PROVISIONS
Section 384 of the Indian Penal Code, 1860 prescribes the Punishment for extortion

Section 511 of the Indian Penal Code, 1860 prescribes the Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment
Section 67(A) of the Information Technology Act, 2000 prescribes the Punishment for publishing or transmitting material containing sexually explicit act, etc., in electronic form
Section 438 of the Code of Criminal Procedure, 1973 prescribes the Direction for grant of bail to person apprehending arrest

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that the accusations were false and that the Appellant did not possess or share any nude pictures of the complainant.

It was emphasized that the Appellant had not shared the pictures of the complainant with her family, friends, or any social media platform.
The Appellant expressed willingness to cooperate with the investigation and claimed no intention of fleeing or tampering with evidence.

 CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case contented the seriousness of the accusations, emphasizing that the Appellant had harassed the complainant, blackmailed her, and extorted money.

The Respondent underscored that the action of the Appellant constituted a clear case of extortion, which justified denial of bail.
It was asserted by the Respondent that granting bail could potentially allow the Appellant further harass or intimidate the complainant

COURT ANALYSIS AND JUDGMENT
The court in the case of Akshay @Arjun Vs. State of Karnataka, observed that the accusations involved harassment and blackmail through Instagram, where the Appellant allegedly demanded money in exchange for not sharing the nude pictures complainant. The court noted that the offenses under Section 384 and 511 of the Indian Penal Code, 1860 and Section 64(A) of the Information Technology Act, 2000 were not triable by the Court of Sessions but by the Magistrate Court, implying a less severe nature of the crime. Taking into consideration, the circumstances and the nature of the accusations, the court found it appropriate to grant anticipatory bail to the Appellant with specific conditions to ensure cooperation with the investigation and prevent any further harassment or tampering with evidence. The petition for anticipatory bail was allowed on the conditions that the Appellant must surrender to the Investigating Officer within ten days and execute a personal bond of INR 2,00,000 with two sureties of the same amount, that the Appellant must not tamper with the investigation or prosecution witness, that the Appellant must cooperate with the investigation and appear before the Investigating Officer as required, that the Appellant must not leave the jurisdiction of the Investigating Officer without prior permission until the charge sheet is filed or for three months, whichever is earlier and that the Appellant must mark his attendance once a month, especially on the 30th of every month, between 10:00 AM and 5:00 PM before the Investigating Officer for three months or until the charge sheet is filed.

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Judgement Reviewed by – Sruti Sikha Maharana
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The High Court of Karnataka Court Enforces Eviction, Penalizes Appellant Rs. 50,000 for Baseless Adverse Possession Argument

Case Title – Chinnaswamy. K Vs. Theosophy Company (Mysore) Pvt. Ltd.
Case Number – Civil Revision Petition No. 483 of 2023 (SC)
Dated on – 9th May, 2024
Quorum – Justice N S Sanjay Gowda

FACTS OF THE CASE
In the case of Chinnaswamy. K Vs. Theosophy Company (Mysore) Pvt. Ltd.  the Appellant was employed by the Respondent-Company as a watchman. As a part of his employment benefits, the Appellant was provided with rent-free quarters by the company. The Appellant reached the age of superannuation on November 30, 2016. Despite his retirement, the Appellant refused to vacate the accommodation provided by the company. The Respondent-Company sent a legal notice to the Appellant, which was ignored. The Respondent-Company then instituted a suit for eviction (S.C. No. 1507/2017) against the Appellant. The Trial Court ruled in favour of the Respondent-Company on 8th of June, 2023, ordering the Appellant to vacate the property. The Appellant instituted a revision petition challenging the judgment.

ISSUES
The main issue of the case whirled around whether a jural relationship of ‘landlord and tenant’ existed between the Appellant and the Respondent-Company due to the provision of rent-free accommodation?

Whether the Appellant and his family had perfected their title to the suit schedule property through adverse possession?
Whether the Respondent-Company was a legitimate entity and the rightful owner of the suit property?

CONTENTIONS OF THE APPELLANT
The Appellant, through their counsel, in the said case contented that the Respondent-Company was non-existent and that his family had acquired the title of the property through adverse possession.

The Appellant denied ever being employed by the Respondent-Company, asserting that he engaged in selling vegetables and gardening work.
It was asserted by the Appellants that the property belonged to BBMP (Bruhat Bengaluru Mahanagara Palike) and that the fraudulent transactions involving one Ramaswamy Reddy had clouded the title.

CONTENTIONS OF THE RESPONDENT
The Respondent, through their counsel, in the said case furnished evidence of its existence, including Articles of Association, Memorandum of Association, Income Tax Returns, Bank Statements, a certificate of incorporation, and other relevant documents along-with a registered gift deed and khatha certificates showing the ownership of the suit property. 

The Respondent presented documents such as the Appointment Letters, Salary Registers, Bank Statements, and a Memorandum of Employment confirming the status of the Appellant as a employee and the provision of the Rent-free Accommodation.
Moreover, the Respondent refuted the claim of adverse possession by providing evidence of continuous ownership and employment-related occupancy of the Appellant.

COURT ANALYSIS AND JUDGMENT
The court in the case of Chinnaswamy. K Vs. Theosophy Company (Mysore) Pvt. Ltd, discovered that the Respondent-Company was a legitimate entity based on the documentary evidence provided and confirmed the ownership of the property through the registered gift deed and Khatha certificates. The court established that the Appellant was indeed an employee of the Respondent and was provided with Rent-free accommodation as part of his employment benefits. The court dismissed the claim of the Appellant for adverse possession, stating it unsupported by the evidence and deemed the eviction suit maintainable.

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Judgement Reviewed by – Sruti Sikha Maharana
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