IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.Rev.Pet.No. 35 of 2005() ---------------------------- CRMP.5055/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOCHI .................... REVISION PETITIONER(S): COMPLAINANT: --------------------------------------------------------------- RAJENDRAN, S/O.RKSIHNANKUTTY, DEVI NILAYAM, THAIKKADU VEETTIL, NAYARAMBALAM P.O., NJARACKAL. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): ACCUSED: ------------------------------------------- 1. T.BALACHANDRAN, S/O.SARASWATHY AMMA, THAIKKADU VEEDU, VALAYATHAMPARAMBU, 7/265, NAYARAMBALAM P.O. NJARAKKAL. 2. PRADEEPA K.K. AMEEN, KOCHI SUB COURT, KOCHI 5. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.S.VINOD BHAT R3 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 35 of 2005 ---------------------------------------- Dated the 24th Day of September, 2010 ORDER Aggrieved by the order dated 12.10.2004 in Crl.M.P. No.5055/2004 of the court of Judicial First Class Magistrate-1, Kochi, which is an order issued by the said court under section 203 Cr.P.C, by which the complaint preferred by the revision petitioner is dismissed. 2. The allegation in the above complaint is that the complainant was restrained from obstructing the right of the pathway of A1 over the decree of B schedule property in O.S.No.56/2001. It is the case of the complainant that on 8.7.2004, the 2nd accused, the Ameen of Sub Court, Kochi along with two police men reached in the B schedule property of the above suit at 1.30. p.m. for effecting delivery of the decree and under the colour of effecting the delivery, A2 cut and removed valuable medicinal plants and other trees stood on the western side of the property of the complainant and thereby caused the complainant to sustain wrongful loss of Rs.25,000/-. It is also the allegation that the complainant and his counsel requested A2 for measuring out the decree 'B schedule' pathway and not to destroy the valuable CRL.R.P 35/2005 -:2:- medicinal plants and the trees. But A2 abused them. Thus according to the complainant, the accused have committed the offences punishable sections 447, 379, 427 read with S.34 of IPC. 3. Based upon the complaint, the sworn statement of the complainant and two witnesses were recorded by the learned Magistrate. After perusl of the sworn statement and the complaint, the learned Magistrate has observed that there were no stumps of any valuable trees cut and removed within a span of one month prior to the visit of the Village Officer and according to the Village Officer, he found two stumps of fallen trees which were cut and removed six months ago. The learned Magistrate observed that as per the complaint, the said trees were cut and removed by A2 but as per the sworn statement, the same were cut and removed by the servants of A1. The learned Magistrate further observed that there is no whisper, neither in the complaint nor in the sworn statement, that the accused made any wrongful gain out of the alleged act. After having referred to the authorities at the bar, the learned Magistrate found that the evidence adduced by the complainant are not sufficient to proceed further and no ground is made out to take cognizance of the offene mentioned in the complaint. CRL.R.P 35/2005 -:3:- 4. When the dispute is with respect to the pathway, in the absence of any documentary evidence or materials, it cannot be said that the offences under sections 447, 379 and 427 of IPC are attracted. Therefore, I am of the view that the learned Magistrate is absolutely correct and legal in holding that there are no sufficient ground to take cognizance of the offences mentioned in the complaint and the order of the learned Magistrate dismissing the complaint under section 203 of Cr.P.C. requires no interference. In the result, there is no merit in this Revision Petition and accordingly the same is dismissed. V.K.MOHANAN, JUDGE kvm/-