The Orissa Amendment to Section 441 of the Indian Penal Code requires a notice in writing to be given to the person concerned to vacate the premises before a criminal action can be initiated. The notice must be given personally to the person concerned and must be duly served upon him.

L. RATH, J.

( 1 ) THE S. D. J. Mr. Berhampur having taken cognizance against the petitioners u/s. 448 I. P. C. on a complaint filed by the opposite party, the petitioners have invoked the inherent powers of this Court to quash the cognizance taken as well as the proceeding against them. The admitted facts are that the petitioner No. 1 took the shop house of the opposite party on rent in pursuance of a rent-deed executed on 5-7-86. At the time the deed was executed one Mr. M. V. Prasad through whom the petitioner No. 1 is represented as per the complaint petition was the Branch Manager but he has since been transferred and the petitioner No. 2 has taken over charge as the Branch Manager. As per the agreement the tenancy was to expire on 5-6-89, but prior to that on 1-5-89 the opposite party gave a notice to petitioner No. 2 to vacate the premises by 5-6-89. A reply was sent by the petitioners' advocate to the opposite party on 19-5-89 stating that the notice was not legal, that it was not possible for his client to vacate the premises within the short period and that his client preferred to occupy the house paying rent as usual. On 9-6-89 the advocate for the petitioners sent a further reply to the opposite party by way of a rejoinder requesting him to desist from illegal and forcible acts and informing him that if he chose to resort to speculative litigation, it would be at his risk and that the rent of the house should be reduced to Rs. 400/- per month. Thereafter the opposite party's advocate sent a letter to the advocate for the petitioners on 15-9-89 requesting that he should instruct his client to vacate the premises within fifteen days of receipt of the notice. On 27-9-89 a reply was sent by the advocate for the petitioners to his counterpart that action as threatened might be taken in the Court of law which was welcome and that correspondence in the matter might be set at rest. The opposite party thereafter filed the complaint on 6-11-89 alleging the petitioners to have committed criminal trespass over his property punishable u/s. 448 I. P. C. The learned Magistrate after examining the complainant u/ S. 200 Cr. P. C. and recording the statements of witnesses u/s. 202 Cr. P. C. as also perusing the documents was of the view that there was sufficient ground to proceed against the petitioners in view of the Orissa Amendment to S. 441 I. P. C. by Orissa Act 22/86 and hence took cognizance of the case.

( 2 ) MR. Y. S. A. Murty, learned counsel appearing for the petitioners, has urged : - (1) That the dispute between the parties is one of civil nature for which no criminal case is maintainable. (2) Since Shri M. V. Prasad was only an officer of M /s Savani Transport Ltd. and has been, as appears from the complaint petition, transferred from the Branch before expiry of the lease, he could not be made to represent M/s Savani Transport Ltd. and cannot be criminally proceeded against. (3) Since the opposite party has accepted rent for the premises till April, 1990 but has refused on 7-6-90 to receive the rent for the month of May, 1990, a fact which has been averred by the petitioners in an affidavit filed in this Court, it must be held that the petitioners are. u/s. 116 of the T. P. Act, tenants holding over and hence the tenancy is to continue after issue of notice on 1-5-89 and the subsequent notices, for which the petitioners' possession cannot be said to be unauthorized which is the requisite foundation for initiation of a criminal prosecution u/s. 448 I. P. C. (4)So far as the Orissa Amendment to S. 441 I. P. C. is concerned, only the third part thereof is relevant for the present case, but since that part provides that before a criminal action is initiated a notice in writing is necessary calling upon the person concerned to vacate and only on his failure to do so he can be said to have committed criminal trespass, the proceeding does not lie as the notice of 1-5-89 was premature and that on or after 5-6-89 no notice has