Mere abuse, without an intention to cause a breach of peace or knowledge that it is likely to occur, does not constitute an offense under Section 504 of the IPC.

S. C. DATTA, J.

( 1 ) THIS appeal is at the instance of the complainant against the order dated 14-9-1984 passed by the learned Chief Judicial Registrate, Cuttack reversing the order of conviction and sentence recorded by the Judicial Magistrate, Second Class, Cuttack.

( 2 ) THE respondent faced trial before the learned Judicial Registrate Second Class, Cuttack for alleged commission of offences under Sections 427, 448, 504 and 352 of the Indian Penal Code (for short the 'i. P. C. ' ). The trial Court found the respondent guilty of all charges and sentenced him to suffer R. I. for one month for the offence under Section 427 and to pay a fine of Rs. 50/- for each offence under Sections 352, 448 and 504, I. P. C. , in default to undergo R. I. for two days on each count. The respondent carried an appeal and the appellate Court set aside the order of conviction and acquitted the respondent of all the charges, by order dated 14-9-2984.

( 3 ) BEING aggrieved thereby, the complainant has preferred this appeal contending, inter alia, that the appellate Court has failed to properly appreciate the evidence adduced by the complainant and illegally passed an order of acquittal.

( 4 ) THE case of the complainant, in short, is that the building of the accused lies adjacent to the house of the complainant. On 8-6-1982 at about 5 P. M. the accused erected a boundary wall encroaching upon the roof of the building of the complainant and thereby caused damage to the plinth of his building to the extent of 30 feet. According the complainant, the roof of his house was since effected by this construction and he sustained a loss of Rs. 15,000/- due to this construction. It has been alleged that when the complainant protected against the illegal construction, the accused abused him in filthy languages and gave him push on the neck causing bodily pain. The accused however denied the incident. He claimed that there has been no encroachment upon the roof of the building of the complainant and he denied to have caused any damage to the plinth or roof of the building of the complainant. According to the accused the damage to the building was caused by banian tree.

( 5 ) THE learned Magistrate believed the case of the complainant and held the accused guilty of the charges framed against him. The appellate Court however,

could not believe the testimony of the witnesses for the prosecution and reversed the finding of the trial Court and acquitted the accused of all the charges.

( 6 ) HEARD learned counsel appearing for the parties. It is not disputed that the house of the accused lies adjacent to the house of the complainant. It is undisputed that a gap of 2-1/2 fect exists in between the building of the complainant and that of the accused. The specific allegation of the complainant is that on 8-6-1981 at 5 P. M. the accused with the help of labourers encroached upon the roof of the complainant and erected a boundary wall thereby causing damage to the roof as well as plinth of his building. He further alleged that on protest, the accused abused him in filthy languages and gave him a push on the neck. According to the complainant due to unauthorised construction he has sustained a loss of Rs. 15,000/- to Rs. 20,000/ -. The complainant besides examining himself, examined three other witnesses to prove the allegations against the accused. It may be remembered that in a case under Section 427, I. P. C. , it is for the prosecution to establish beyond all reasonable doubt that the accused actually made construction encroaching upon the roof of the building of the complainant and thereby caused damage to his building. It is further to be established that the accused had necessary criminal intention or knowledge of causing a wrongful loss or damage to the complainant. The complainant (P. W. 1) has stated in his evidence that accused has constructed a brick wall encroaching upon the roof to the extent of one cubit thereby affecting his roof and causing damage to