IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 Crl.MC.No. 3029 of 2010(N) ------------------------ CC.54/2010 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR ................. PETITIONER / ACCUSED : ---------------------------------- N.A. RAJU, S/O. ANTHAPPAN, NEDUMPARAMBIL HOUSE, POONKUNNAM, THRISSUR BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS / STATE & DEFACTO COMPLAINANT : --------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHINI JAISON, W/O. ERINJERI JAISON, CHEMBUKAVU, THRISSUR, PIN – 680 592 R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3029 OF 2010 --------------------------------------------- Dated 4th October, 2010 O R D E R Petitioner, the accused in C.C.54/2010 on the file of Chief Judicial Magistrate's Court, Thrissur filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken on Annexure-A2 final report contending that the case has been registered based on Annexure-A1 complaint filed by the second respondent. Before Annexure-A1 complaint was filed, second respondent had filed Annexure-A3 complaint before Sub Inspector of Police in respect of the incident and as per Annexure-A3 complaint allegation was that residents of T.C.1/1944 namely, Ramasubramanian, Eswaran, Subramanian and Seetharam and residents of T.C.1943 namely, Crmc 3029/10 2 Mohanan and Ganapathy had demolished the building causing damage to the building of second respondent and there is no allegation as against the petitioner in Annexure-A3 complaint and petitioner has purchased the property only later and continuation of the proceedings against the petitioner is only an abuse of process of the Court. 2. Notice was served on second respondent, but she did not appear. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure-A1 complaint filed by the second respondent before Chief Judicial Magistrate, Thrissur, was sent for investigation under Section 156(3) of Code of Criminal Procedure based on which Crime No.17/2010 of Thrissur Town West Police Station Crmc 3029/10 3 was registered for the offences under Sections 447 and 427 of Indian Penal Code. After investigation, Annexure-A2 final report was submitted by the Sub Inspector of Police, Thrissur as against petitioner alone. Annexure- A1 complaint was filed by the second respondent in which petitioner was seventh accused. The allegations were that counter petitioners 1 to 6 therein, entered into an agreement to sell their property to the petitioner for constructing a flat and petitioner informed counter petitioners 1 to 6 that the petitioner could construct a flat only if the property of the second respondent is also received and more value could be given to counter petitioners 1 to 6 for their property, on the demolition of the building. Though counter petitioners 1 to 6 approached the second respondent to persuade Crmc 3029/10 4 her to agree for sale, she did not agree and they requested her not to prevent the counter petitioners from getting more value from the property. On 17/10/2009, counter petitioners 1 to 6 along with petitioners approached the second respondent and threatened that if she is not agreeing for sale, they will forcibly demolish the structure. Making use of the absence of the second rsepondent from the house, as she had to go to Madras on account of the treatment of her son, on 21/10/2009, counter petitioners demolished the remaining structure of the line building and trespassed into the building of the second respondent and also caused damage to the building and thereby committed the offences. Prosecution case in Annexure-A2 final report is also that the petitioner on 21/10/2009 trespassed into the Crmc 3029/10 5 building of the second respondent, while demolishing the remaining portions of the common building and caused damages to the tune of Rs.9,500/- to the building of the second respondent and thereby committed the offences under Sections 447 and 427 of Indian Penal Code. Annexure-A3 complaint filed by the second rspondent establishes that on 24/10/2009, three days after the demolition of the building second respondent filed a complaint before Sub Inspector of Police alleging that after committing house trespass damage was caused by the residents of T.C.1/1945 and T.C.1/1944, six counter petitioners mentioned in Annexure-A2 complaint. 4. A reading of Annexure-A3 establishes that allegation was that it was done for the purpose of sale of the property to the Crmc 3029/10 6 petitioner, the person who is constructing a flat, to enable them to get more value to their property. Petitioner had purchased that property only subsequent to Annexure-A3 complaint. In such circumstances, petitioner cannot be prosecuted for anything which was committed prior to the date of sale in his favour. More over, when Annexure-A3 complaint shows that alleged demolition was done not by the petitioner, but by the counter petitioners 1 to 6 in Annexure-A1 complaint, for the reason that from the said counter petitioners petitioner purchased the property he cannot be prosecuted. In such circumstances, continuation of the prosecution against the petitioner is only an abuse of process of the Court. There is no material whatsoever to show that the petitioner committed any of the Crmc 3029/10 7 offence alleged. Petition is allowed. C.C.54/2010 on the file of Chief Judicial Magistrate's Court, Thrissur is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.