IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 Crl.MC.No. 2314 of 2006() ----------------------- CC.631/2005 OF JUDL. FIRST CLASS MAGISTRATE COURT-II, TRIVANDRUM ................ PETITIONER / ACCUSED : ---------------------------------- A.K.SUGUNAN, AGED 62 YEARS, S/O.ANANDA KRISHNAN, MANAGING DIRECTOR, ATTUKAL SHOPPING COMPLED (PVT) LTD, EAST FORT, TRIVANDRUM. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.RENJITH B.MARAR RESPONDENTS / STATE / COMPLAINANT : ----------------------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. G.SADHASIVAN NAIR, NANIKANDA MANDIRAM, VANCHIYOOR VILLAGE, TRIVANDRUM. R1 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR, J. ------------------------- Crl.M.C No.2314 of 2006 -------------------------- Dated this the 15th October, 2010 O R D E R Petitioner, the accused in C.C No.631/2005 taken cognizance of the offences under Sections 447, 427 and 380 of Indian Penal Code on the file of Judicial First Class Magistrate's Court-II, Thiruvananthapuram filed this petition under Section 482 of Cr.P.C to quash the cognizance taken. The case of the petitioner is that learned Magistrate did not apply his mind and based on the complaint and sworn statement cognizance could not have been taken. The contention is that second respondent complainant has no locus standi to file the complaint . According to the complainant, the building was obtained on rent by the wife of the second respondent and Sankarankutty Nair. Subsequently, Sankarankutty Nair surrendered his rights to the wife and she continued possession of the building and if that be so, only the wife of the 2nd respondent is entitled to file a complaint and not by the husband. It is also contended that there is no material to show that offences was committed by the petitioner who is the landlord of the building. Crl.M.C No.2314 of 2006 2 2. Annexure -A2 complaint filed by the second respondent shows that though the building was obtained on rent by his wife and Sankarankutty Nair on 4.12.1992, subsequently Sankarankutty Nair retired from the business and it was continued by the wife of the second respondent. It is the specific case in the complaint that the business was being managed by the second respondent on behalf of his wife and while he has been managing the business, on 17.8.2003 by making use of the absence of the second respondent and his wife, without their permission or consent petitioner trespassed into the room took away the articles worth Rs.4 lakhs and thereby committed the offences. Though offences under Sections 307, of Indian Penal was also alleged, learned Magistrate after recording the sworn statement of the second respondent and four witnesses did not take cognizance of the offences under Section 307, 461 and 201 of Indian Penal Code. Cognizance was taken only for the offences under Section 447, 427 and 380 of Indian Penal Code. Petitioner produced Annexure- A4, copy of the plaint filed by the petitioner before Crl.M.C No.2314 of 2006 3 Munsiff's Court, Thiruvananthapuram against the wife of the second respondent and Sankarankutty Nair seeking a decree for mandatory injunction to surrender vacant possession of the building and to recover the arrears of license fee alleging that even after expiry of the period of license, they are continuing possession of the building without payment of the license fee and therefore petitioner is entitled to get vacant possession of the building with arrears of license fee. 3. Annexure-A4 plaint itself establishes that when the suit was filed on 9.10.2002 second respondent was the licensee and was in possession of the property. Sworn statement of Sankarankutty Nair was recorded by the learned Magistrate, based on which cognizance was taken. Sworn statement shows that as claimed in Annexure-A2 complaint Sankarankutty Nair retired from the business and thereafter he has nothing to do with the business. Sworn statement of the Khader Hassan shows that he obtained Shop Nos. 1 and 2 in 1993 and has been conducting business. The sworn statement recorded show Crl.M.C No.2314 of 2006 4 that he knew that Ideal Shoe Palace was being run in Room No.3 and he is now running a garment shop therein. Though the witness expressed ignorance about the suggestion that petitioner trespassed into the building on 17.8.2003, it is clear that when the sworn statement was taken the building was not in possession of the tenant/licensee as stated in Annexur-A4 plaint, though the suit is still pending. Considering the entire facts and circumstances of the case, I do not find that cognizance taken is illegal or warrants quashing, in exercise of the extra-ordinary jurisdiction under Section 482 of Cr.P.C. As the case is being tried as a warrant case, petitioner is entitled to cross-examine the witnesses when examined under Section 244 of Cr.P.C and seek an order of discharge under Section 245(1) of Cr.P.C raising all the contentions raised herein. Petition is disposed of granting liberty to seek discharge from the Court of Judicial First Class Magistrate M.SASIDHARAN NAMBIAR JUDGE ma