IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 Crl.MC.No. 1138 of 2009(F) ----------------------------------- CC.1102/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... PETITIONER(S): ACCUSED -------------------------------------- 1. T.KUNHAMMED, SON OF ABDULLA HAJI, RESIDING AT THOTTIYIL, KEEKAN POST, PALLIKKERE, HOSDURG, KASARAGOD. 2. C.H.BEEPATHUMMA, WIFE OF T.KUNHAMMED, RESIDING AT DO. DO. 3. C.H.ABDULSALAM, SON OF T.KUNHAMMED, RESIDING AT DO. DO. 4. MUNEER, SON OF MUHAMMED KUNHI, RESIDING AT POOCHAKKAD, PALLIKKERE, HOSDURG, KASARAGOD. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): COMPLAINANT & STATE ------------------------------------------------------------- 1. T.ABDULRAHIMAN, SON OF ABDULLA HAJI, RESIDING AT SAJIDA MANZIL, POOCHAKKAD, PALLIKKERE, HOSDURG, POST KEEKAN, KASARAGOD DIST. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.RAMESH CHANDER R2 BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ==================== Crl.M.C. No. 1138 of 2009-F ==================== Dated this the 1st day of June, 2009. O R D E R Petitioners are accused and 1st respondent the complainant in C.C.No.1102/2008 on the file of Judicial First Class Magistrate Court-II, Hosdurg, taken cognizance by the Magistrate after recording the sworn statement of 1st respondent and Annexure I complaint alleging offences under Sections 427, 406, 506(ii) and 379 read with Section 34 of Indian Penal Code. 1st petitioner is the husband, 2nd petitioner is the wife, 3rd petitioner is their son, 4th petitioner is a close associate of the petitioners. 1st petitioner and 1st respondent are brothers. The complaint was originally filed by 1st respondent raising the very same allegations in Annexure I complaint, which was forwarded to the Police for investigation under Section 156(3) of Code of Criminal Procedure. After investigation, a refer report Crl.M.C.No.1138/2009 -2- was filed. 1st respondent then filed Annexure I private complaint, which was taken cognizance by the Magistrate. Accused filed this petition to quash Annexure I complaint as well as proceedings initiated by the Magistrate in C.C.No.1102/2008 based on the complaint. 2. Learned Counsel appearing for petitioners and 1st respondent were heard. 3. Learned Counsel appearing for petitioners pointed out that as per the allegations in Annexure I complaint, 1st petitioner and 1st respondent jointly owned 3.23 Ares of land in R.S.No.94/2 and 18 cents of property in R.S.No.94/3 of Keekan Village consisting of an RCC house, where petitioners are residing and in addition there was an old tiled house. 1st respondent instituted O.S.No.25/2008 before Sub Court, Hosdurg, a suit for partition claiming that the said property is jointly belonged to him and 1st petitioner and properties are to be divided into two equal shares and one share is to be allotted to him. Case of 1st Crl.M.C.No.1138/2009 -3- respondent in Annexure I complaint is that in fraudulent collusion among themselves and as a result of criminal conspiracy, on 21-4-2008 petitioners demolished the tiled house which jointly belonged to 1st petitioner and 1st respondent and knowing about it 1st respondent went to the property at about 1.00 PM and asked 1st petitioner the reason for demolition and then petitioners 3 and 4 armed with a chopper threatened him that if he obstructs the demolition work or removal of wood, tiles and other materials of the house, he will be injured and thereby committed the offences. Learned Counsel pointed out that Annexure II plaint in O.S.No.25/2008 makes it clear that 2nd petitioner had obtained purchase certificate from the Land Tribunal in respect of the entire property and 1st respondent filed A.A.No.8/2008 before Appellate Authority (Land Revenue), Kannur against the order in O.A.No.2681/1976 wherein purchase certificate was granted to the 2nd petitioner, alleging that it was obtained fraudulently and Crl.M.C.No.1138/2009 -4- collusively and the order in O.A.No.2681/1976 is not so far set aside and so long as the order subsists 1st respondent cannot claim any right over the property and therefore 1st respondent cannot claim to be in possession of the property and the case of 1st respondent claiming the property or the petitioners intimidating him are false and the incident as alleged cannot true and the complaint is only an abuse of process of Court and hence it is to be quashed. 4. Learned Counsel appearing for 1st respondent pointed out that when a petition is filed under Section 482 of Code of Criminal Procedure to quash the criminal case at the threshold, what is to be looked into is the complaint as well as documents produced along with the complaint and if the allegations thereon are believed, ingredients of the offences are made out in the complaint and so the proceedings cannot be quashed and the remedy of the petitioners is to seek an order of discharge or face the trial and the complaint or the proceedings cannot be quashed. Crl.M.C.No.1138/2009 -5- 5. Annexure I complaint itself make it clear that the property in respect of which allegations are raised against petitioners is the subject matter of O.S.No.25/2008 instituted by 1st respondent before Sub Court, Hosdurg. Though the complaint in O.S.No.25/2008 is not produced in Annexure I complaint, it is seen that no other document was also produced along with the complaint or at the time of recording the sworn statement to show his right or possession over the property. Therefore if the complaint is to be relied on, Annexure II plaint in O.S.No.25/2008, though not produced along with the complaint, could also be relied on. Para 4 of Annexure II complaint establish that an order assigning joint right of plaint scheduled properties, which are sought to be divided in O.S.No.25/2008 claiming to be the joint property of 1st respondent and 1st petitioner, was assigned in favour of 2nd petitioner by the Land Tribunal in O.A.No.2681/1976. It is also clear that after coming to know about the order, 1st respondent filed Crl.M.C.No.1138/2009 -6- A.A.No.8/2008 before the Appellate Authority (Land Reforms), Kannur on the allegation that the order of Land Tribunal was obtained fraudulently and collusively. Whatever it be, it is not disputed that the order in O.A.No.2681/1976 is even now subsisting. Therefore, prima facie the property stands in the name of 2nd petitioner. In any event it cannot be believed that it has been in the joint possession of 1st petitioner as claimed as the purchase certificate is exclusively in the name of 2nd petitioner. Even if it is taken that 1st respondent has one-half right in the property and the tiled building therein was demolished by the co-owner in possession, petitioner can only claim his share in the value of house in the pending suit. When prima facie it is shown that 1st respondent was out of possession of the property, the incident allegedly happened on 22-4-2008 and on 23-4-2008 cannot be believed. It is clear that after the Police filed refer report, Annexure I complaint was filed reiterating the same allegations. Learned Magistrate did Crl.M.C.No.1138/2009 -7- not properly consider the complaint and took cognizance of the offences after recording the sworn statement of 1st respondent without considering even the refer report filed earlier and accepted or the plaint in O.S.No.25/2008. In such circumstances it is clear that complaint is only an abuse of process of the Court. 6. The petition is allowed. Annexure I complaint and C.C.No.1102/2008 initiated by the Magistrate based on the complaint are quashed. M.SASIDHARAN NAMBIAR JUDGE dkr