IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 Crl.MC.No. 513 of 2011() ------------------------------------- PETITIONER(S): ---------------------------- 1. M.N.PREMAKRISHNAN NAIR,S/O.NARAYANAN NAIR, KRISHNALAYAM,MALLOOSSERI,MARIYATHURUTH, KOTTAYAM. 2. THE MANAGING DIRECTOR,INDUS TOWERS LTD, NELSON MANDELA ROAD,VASANTHAKUNJU,PHASE-2, NEW DELHI.- REPRESENTED BY PREMAKRISHNAN NAIR, INDUS TOWERS, ERNAKULAM. 3. INDUS TOWERS LTD.,NELSON MANDELA ROAD, VASANTHAKUNJU,PHASE-2,NEW DELHI,REPRESENTED BY ITS MANAGING DIRECTOR - M.N.PREMAKRISHNAN NAIR. BY ADV. SRI.P.SATHISAN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. S.J.ISAAC,S/O.JOSEPH,AGED 67 YEARS, SWARANAPALLY HOUSE,AMBAYATHODE.P.O, KOTTIYOOR-670 651. 3. THE S.I.OF POLICE,KUTHUPARAMBU POLICE STATION,KANNUR-670 643. R1 & R3 BY PUBLIC PROSECUTOR SRI. T.R. RANJITH R2 BY ADV. SRI.C.P.PEETHAMBARAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.513/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A1: COPY OF THE PLAINT. ANNEX.A2: COPY OF THE JUDGMENT IN THE SAID SUIT DTD. 27/03/2010. ANNEX.A3: COPY OF COMPLAINT BEFORE JUDICIAL FIRT CLASS MAGISTRATE COURT, KOOTHUPARAMBU. ANNEX.A4: COPY OF THE LEASE DEED DTD. 16/09/2008. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.513 of 2011 ---------------------------------------------------- Dated this the 11th day of October, 2011 Order This petition is filed by the accused in C.C.No.613/2010 of the J.F.C.M.Court, Koothuparambu. The offence alleged against them is under Section 420 IPC. The gist of the complaint is that in order to erect telecommunication tower, an agreement was entered into between the accused and one Susan Joseph, daughter-in-law of the second respondent. For the purpose of erecting the tower, some of the trees were cut and removed. This allegation is levelled by the petitioners. But the learned counsel for the 2nd respondent would submit that it was with the sole intention of cutting and removing the trees that an agreement was entered into by the accused and Susan Joseph and that the right and interest of the 2nd respondent was not taken into account at the time of entering into the agreement. It is also argued by the learned counsel for the 2nd respondent that the 2nd respondent is still having life interest in the property, namely, he has the right to take income from the said property and as such Crl.M.C.513/11 2 the agreement entered into between the accused on the one hand and Susan Joseph on the other hand is not binding on them. Learned counsel for the petitioners would submit that the title of the property stood vested in Susan Joseph with whom agreement was entered into by the petitioners and it was based on that agreement alone they entered the property and made preparation for erecting the tower. Even if it is assumed that the second respondent is having life interest in the said property, it cannot be said that the act of the petitioners was with dishonest intention so as to attract offence under Section 420 IPC, learned counsel for the petitioners submits. It is also argued by the learned counsel that so far as the petitioners are concerned, they spent money for getting the right for erection of the tower and it was based on Ext.A4 lease deed alone they did the act. Therefore, it cannot be said that there was dishonest intention, it is further argued. It is also pointed out by the learned counsel for the petitioners that a suit, O.S.No.125/2009, was filed by Susan Joseph against the company before the Munsiff's Court, Kothuparambu claiming damages to the tune of Rs.One lakh. That suit was subsequently settled and based on the settlement, Crl.M.C.513/11 3 the suit was dismissed as not pressed. In such circumstances, it cannot be accepted that the act of the petitioners would attract the offence under Section 420 IPC. If the second respondent/defacto complainant has got any other grievance, it will be open to him to claim damages or for seeking other reliefs through the civil court. In the light of what is stated above, I find that it would be abuse of the process of the court to proceed further by prosecuting the case in respect of an act which if at all would only give rise to a cause of action for damages which can be claimed through the civil court. This Crl.M.C. is hence allowed. All further proceedings in Annexure A3 complaint filed by the 2nd respondent is quashed. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.513/11 4 Crl.M.C.513/11 5