IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.L.P..No. 966 of 2008() -------------------------- CC.73/2001 of J.M.F.C.,KUNNAMANGALAM .................... PETITIONER/COMPLAINANT ------------------------------------------ ANNA AGED 65, D/O.MATHIRI, CHERUVATHOOR HOUSE, KUNNAMKULAM VILLAGE DESOM, TALAPPILLY TALUK. BY ADV. SRI.K.S.BABU & SMT.N.SUDHA RESPONDENT(S): --------------- 1. MARY AGED 47, D/O.MATHIRI, KARAKKAD HOUSE,KUNNAMKULAM VILLAGE DESOM, TALAPPILLY TALUK. 2. ELIZABATH AGED 49,W/O.CHACKUNNI, KARAKKAD HOUSE, KUNNAMKULAM VILLAGE DESOM, THALAPPILY TALUK. 3. SINDHU, D/O.KAREKKOTT CHACKUNI, KARAKKAD HOUSE, KUNNAMKULAML VILLAGE DESOM, TALAPPILLY TALUK. 4. SIMSON AGED 23, S/O.KAREKKOTT CHACKUNNI, KARAKKAD HOUSE, KUNNAMKULAML VILLAGE DESOM, TALAPPILLY TALUK. 5. CHACKUNNI AGED 53, S/O.MIKAYEL, KARAKKAD HOUSE, KUNNAMKULAM VILLAGE DESOM, TALAPPILLY TALUK. 6. GEORGE, S/O.KURIAKOSE,THAZHEKAD ILLIKAL HOUSE, VELLARAKAD VILLAGE DESOM. 7. IFOLT,S/O.THOMAS, ILLIKKAL HOUSE, KARIKKAD DESOM, PAZHANJI VILLAGE, TALAPPILLY TALUK. 8. RAMACHANDRAN, S/O.EARATH RAGHAVAN, KUNNAMKULAM VILLAGE DESOM. 9. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R9 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.L.P.No. 966 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of October, 2008 O R D E R This application is for grant of leave under Section 378(4) Cr.P.C. to appeal against a judgment of acquittal in a prosecution for offences punishable under Sections 405, 406, 468 and 477 r/w. 34 I.P.C. Altogether there were eight accused persons. Accused Nos. 6 and 7 expired and the charge against them abated. 4th accused was not available for trial. Accused Nos. 1 to 3, 5 and 8 were acquitted under the impugned judgment. The petitioner claims to be aggrieved by the impugned judgment of acquittal and wants to prefer an appeal against the judgment of acquittal. It is prayed that leave to appeal may be granted to the petitioner. 2. The tenability of the challenge raised is the relevant and crucial consideration when a court takes upon itself the burden to decide whether leave ought to be granted or not. The precise allegations against the accused persons in the complaint is that Crl.L.P.No. 966 of 2008 2 accused 1 to 4 executed Ext.P2 assignment deed in favour of accused No.5. Accused 6 and 7 are witnesses in that document and accused No.8 is the document writer, who prepared Ext.P2 document. The culpable act alleged is the execution of Ext.P2 assignment deed, where under accused 1 to 4 claimed rights in respect of a property and assigned the same to accused No.5. 3. There is a long history about the disputes between the parties. The complainant's mother is one Mathiri. The predecessor in interest of accused 1 to 4 is also another Mathiri. It is the case of the complainant and her mother Mathiri that she had entrusted the property on a lease arrangement to Mathiri, the predecessor of accused 1 to 4. The landlord Mathiri claimed eviction of the occupant Mathiri. The rent control petition was dismissed and the parties were referred to the civil court. A civil litigation was initiated by the landlord Mathiri, but the same ended in dismissal. Against that an appeal was preferred and it is pending even now. It is at that point of time that accused 1 to 4 claiming rights over the property had executed Ext.P2 assignment deed in favour of the 5th accused. Crl.L.P.No. 966 of 2008 3 4. Charges were framed. They were denied. Pws. 1 to 3 were examined and Exts.P1 and P2 were marked. PW1 is the complainant. PW2 is the Sub Registrar, who had registered Ext.P2 document. PW3 is allegedly a neighbour. 5. The accused took the stand that accused 1 to 4 had rights over the property in question and that no offence whatsoever has been committed by them by execution of Ext.P2 in favour of the 5th accused. The learned Judge accepted the defence of the accused and proceeded to pass the impugned judgment of acquittal. 6. The petitioner/complainant claims to be aggrieved by the impugned judgment of acquittal. What is the grievance? How can it be contended that by the execution of ext.P2 any offence under Sections 405, 406, 468 or 477 r/w. 34 I.P.C. has been committed by any of the accused? The learned counsel for the petitioner was requested to pointedly explain how allegations of culpability can be raised against the accused persons on the facts alleged. The only contention of the learned counsel for the petitioner is that the recitals in Crl.L.P.No. 966 of 2008 4 Ext.P2, under which accused 1 to 4 claimed an alienable right in respect of the property, are incorrect and hence execution of the document does amount to commission of the offences referred above. 7. I am afraid the contentions cannot be accepted. The very same contentions were urged in civil litigation initiated by the complainant and her predecessor and the complainant and her predecessor could not succeed in such litigation. Of course, an appeal is said to be pending even now. The learned counsel contends that the recitals in Ext.P2 document, under which accused 1 to 4 claimed an alienable right over the property, are themselves incorrect and false. Even if the recitals were accepted in toto, accused 1 to 4 cannot be said to have any rights over the property, contends the counsel. 8. Even if the allegations were accepted, all that turns out is that accused 1 to 4, who were admittedly in possession of the property as legal heirs of their predecessor Mathiri had alienated possession as also whatsoever rights they had to the 5th accused. Accused No.5 cannot get any more rights than what accused 1 to 4 had over the property. In these circumstances, I am at a loss to understand how execution of Crl.L.P.No. 966 of 2008 5 ext.P2 can by itself be held to be culpable. Whatever rights the complainant had against accused 1 to 4, she will certainly have against accused No. 5, who claims under accused 1 to 4 on the strength of Ext.P2 document. By no stretch of imagination can it be held that the re-iteration of the contentions raised in the civil case by accused 1 to 4 and their predecessor in Ext.P2 document and transfer of all those alleged rights along with possession in favour of the 5th accused can amount to any offence as alleged by the complainant. 9. I am satisfied that there is absolutely no merit in the challenge against the impugned order and to facilitate such a challenge, I am satisfied, that leave under Section 378(4) Cr.P.C. does not deserve to be granted. 10. This Crl.L.P. is accordingly dismissed. (R. BASANT) Judge tm