IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 19TH OCTOBER, 2011 / 27TH ASWINA, 1933 Crl.L.P..No. 931 of 2011 ------------------------------ (AGAINST THE JUDGMENT DTD.6.11.2007 IN CCNO..234/2005 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PALAKKAD) .................... PETITIONER/COMPLAINANT: ----------------------------------------- PRABHAKARAN,AGED 55 YEARS, S/O.PAZHANI ARUPUZHA, PARALI,PALAKKAD DISTRICT. BY ADV. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENTS(S): ACCUSED: ----------------------------------------- 1. UNNIKRISHNAN,S/O. AYYAPPAN ARUPUZHA, PARALI,PALAKKAD DISTRICT. 2. KRISHNAN @ RADHAKRISHNAN,S/O.KUTTAN ALIKKAL,PARALI,PALAKKAD DISTRICT. 3. RADHAKRISHNAN,S/O.BALAN ATTANCHERI PARALI,PALAKKAD DISTRICT. 4. AJAYAKUMAR @ AJIL,S/O.RAMAKRISHNAN PARALI,PALAKKAD DISTRICT. 5. CHANDRAN,S/O.MANAPPULLI, KOTTATHODI,PARALI,PALAKKAD DISTRICT. 6. UDAYAKUMAR,S/O.RAMAKRISHNAN ARUPUZHA,PARALI,PALAKKAD DISTRICT. ' 7. MANIKANDAN,S/O.PANICKEN, KUMBARATHARA,PARALI,PALAKKAD DISTRICT. 8. MANI.AV,S/O.VELAYUDHAN ARUPUZHA,PARALI,PALAKKAD DISTRICT. 9. UNNIKRISHNAN,S/O.MURUKAN,ATTANCHERI ARUPUZHA,PARALI,PALAKKAD DISTRICT. 10. KRISHNADAS,S/O.BALASUBRAMANIAN ADAYALAPPARA,PARALI,PALAKKAD DISTRICT. Crl.L.P.No.931 of 2011 :-2-: 11. DINESH,S/O.DEVAN,ALIKKAL PARALI,PALAKKAD DISTRICT. 12. PRASAD,S/O.RAJAN,ASARITHARA, ARUPUZHA,PARALI,PALAKKAD DISTRICT. 13. UNNIKRISHNAN,S/O.THATHA,ATTANCHERI ARUPUZHA,PARALI,PALAKKAD DISTRICT. 14. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY ADV. SRI.JACOB SEBASTIAN FOR R1-9,12-13 BY PUBLIC PROSECUTOR SMT.LAIZA FOR R14. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 931 of 2011 ---------------------------------------- Dated this the 19th day of October, 2011 O R D E R The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the judgment dated 6.11.2007 in C.C.No.234 of 2005 of the court of the Judicial First Class Magistrate-II, Palakkad since the learned Magistrate, by the above judgment, acquitted all the accused in the complaint preferred by the petitioner. 2. The case of the complainant is that on 21.12.2002, at 6 o' clock when the complainant was sitting along with his son Baiju, Biju and Manikandan, the accused Nos.1 to 3 came in front of his house and when the complainant approached them, the accused intimidated stating that the complainant and his family would be done away and thereafter, on the same day at about 8 o' clock, accused Nos.1 to 4 CRL.L.P.NO.931 OF 2011 :-2-: along with other accused formed themselves into an unlawful assembly and in prosecution of their common object of committing the offence, came there and accused No.8 was carrying gun and accused Nos.4 and 5 were having sword and accused Nos.6 and 7 were having chopper and others were holding stick in their hands and abused the complainant in filthy languages. It is the further case of the complainant that at about 7.30 a.m. on 23.12.2002, while the complainant along with son-in-law were going to the Police Station for filing a complaint, accused Nos.5 to 13 and others came and assaulted the son of the complainant and his son-in-law. Thus, according to the complainant, the accused committed the offence punishable under Section 25(1)(b) of the Arms Act, Section 23 of the PDPP Act and Sections 143,147,148,294(b),452,506(ii) read with 149 of I.P.C. With the said allegation, the complainant has preferred a complaint before the court below which is forwarded to the Mankara Police Station under Section 156(3) of the Cr.P.C. and on receipt of the same, crime No.51 of 2003 was registered in the said Police CRL.L.P.NO.931 OF 2011 :-3-: Station, but the Police later referred the case as false and hence, the complainant preferred the present complaint as a protest against the referring of cases in crime No.51 of 2003. 3. After taking sworn statement of the complainant and witnesses of the complainant, the case was taken on file for the offences punishable under Sections 143,147,148,294(b),452,506(ii) read with 149 of I.P.C. On appearance of the accused, a formal charge was framed against them for the said offence and when the charge was read over and explained to the accused, they denied the same and pleaded not guilty. Consequently, the trial was further proceeded during which PWs.1 to 3 were examined and Ext.P1 was marked. After that, the accused were acquitted under Section 313 of Cr.P.C. and during the time of defence evidence, DWs.1 and 2 were examined and Exts.D1 to D5 were marked. Finally, the trial court has found that the complainant and accused are in inimical terms for a long time and after appreciating the evidence, it is found that the complainant has failed to prove his case. Consequently, the accused are acquitted CRL.L.P.NO.931 OF 2011 :-4-: under Section 248(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for under Section 378(4) of Cr.P.C. 4. I have heard Sri.M.G.Karthikeyan, learned counsel for the petitioner. I have also gone through the judgment of the trial court. 5. Counsel for the petitioner vehemently submitted that the grounds stated by the leaned Magistrate to acquit the accused are unsustainable and against the evidence and materials on record. According to the learned counsel, the evidence available on record are sufficient to prove the guilt of the accused and the learned Magistrate overlooked the evidence and came to an erroneous conclusion by holding that the accused and the complainant are on inimical terms. It is also the submission of the learned counsel that one of the grounds considered by the learned Magistrate to acquit the accused is the delay in filing the complaint, which according to the learned counsel, is not correct and the delay, that occurred in filing the complaint, was properly submitted and the same was not evaluated by the learned CRL.L.P.NO.931 OF 2011 :-5-: Magistrate in the given facts and circumstances of the case. Thus, according to the learned counsel, the judgment of the trial court is liable to be interfered with and there is every chance for reversing the order of acquittal in case an appeal is entertained and therefore, the petitioner is entitled to get leave as sought for. 6. I have carefully considered the arguments advanced by learned counsel for the petitioner. I have also perused the judgment of the trial court and the materials referred to therein. 7. In the light of the arguments advanced by the counsel for the petitioner and in the light of the findings of the court below on the basis of the materials referred to in the judgment, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave to file appeal against the above judgment. 8. At the outset, it is to be noted that the Police, after registering Crime No.51 of 2003 in the Mankara Police Station on receipt of the complaint of the complainant under Section 156(3) of the Cr.P.C., have undertaken an investigation, but finally they have CRL.L.P.NO.931 OF 2011 :-6-: referred the crime as a false one and the present complaint is filed as a protest complaint. 9. It is also relevant to note that in the light of Exts.D1 to D5 documents, as referred to by the learned Magistrate in the judgment, it can be seen that the accused have also sustained injury and therefore, the observation of the learned Magistrate that the complainant and accused were in inimical terms, is found to be correct and the available evidence has to be examined in the above background. 10. It is also relevant to note that the alleged incident has taken place on 22.12.2002. The learned Magistrate has specifically found that after the incident on 22.12.2002, according to the complainant, they were hospitalised on the next day, but still then, no complaint was lodged before the Police. The learned Magistrate has found that the explanation offered by the complainant in not giving a complaint before the Police, is not satisfactory. The learned Magistrate has also explained the reasons to reject the explanation offered by the complainant in not filing the complaint in time and those reasons CRL.L.P.NO.931 OF 2011 :-7-: appear to be correct. Learned counsel for the petitioner submitted that according to the complainant, he was under the impression that the Police will register a case on the basis of the information furnished by the son-in-law connected with the incident taken place on 22.12.2002 and it is only subsequently, the complainant came to know that the crime was registered on the basis of the information furnished by the son-in-law, the incident that had taken place on 22.12.2002 was excluded. According to me, the above submission is not acceptable, especially when the parties were at loggerheads. It is relevant to note that the complaint, on the basis of which Crime No.51 of 2003 was registered, was dated 22.4.2003 though the incident had taken place on 22.12.2002 and there is delay of nearly four months. It is also beyond dispute that a crime was registered on the basis of the information given by the son-in-law of the complainant connected with the incident that had taken place on 23.12.2002. Under the above factual background, it is unbelievable that the complainant or his son or son-in-law has not made any enquiry about the crime which is CRL.L.P.NO.931 OF 2011 :-8-: registered against the accused. Therefore, the reasons given by the learned Magistrate to reject the explanation offered by the complainant in not filing the complaint in time appear to be correct and reasonable. 11. After appreciating the evidence of PW1/the complainant and other two witnesses, who were examined on his behalf, the learned Magistrate has found that even according to the complainant, the accused abused the complainant in filthy language at the courtyard and the varantha of the house of the complainant which is not a public place and therefore, no offence under Section 294(b) is attracted. The said reason also appears to be correct and nothing brought out on record to show that the above conclusion was arrived by overlooking any evidence. The learned Magistrate has also found that no hurt or assault is proved by the complainant and therefore, the allegation that the accused trespassed into the house after preparation for hurt or assault is not attracted. The learned Magistrate is also not prepared to believe the evidence of PWs.2 and 3, because their presence at the CRL.L.P.NO.931 OF 2011 :-9-: place of occurrence was doubtful. The reason given by the learned Magistrate that no inmates of the house of the complainant were examined, is very relevant in the factual background of the case. In the light of the above facts, evidence and circumstances referred to above, according to me, the learned Magistrate arrived in his finding judiciously and by assigning appropriate reasons and there is nothing to show that the conclusion arrived is incorrect or illegal. Therefore, it is not a fit case to grant leave as sought for in this petition so as to challenge the judgment of the trial court in appeal. Going by the judgment of the trial court and the reasons stated therein and in the light of the arguments advanced by learned counsel for the petitioner, it appears to me that there is no compelling or substantial reason to interfere with the order of acquittal recorded by the trial court in case the appeal is entertained and there is nothing to hold that the finding of the learned Magistrate is perverse. CRL.L.P.NO.931 OF 2011 :-10-: In the result, there is no merit in the appeal and accordingly, the same is dismissed. V.K.MOHANAN, MBS/ Judge CRL.L.P.NO.931 OF 2011 :-11-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 CRL.L.P.NO.931 OF 2011 :-12-: