IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 Crl.MC.No. 1278 of 2009() ------------------------- CC.107/2006 of JUDL.MAGISTRATE OF FIRST CLASS, VATAKARA .................... PETITIONER(S): PETITIONERS/ACCUSED ---------------------------------- 1. KUNHIKANNAN MASTER,S/O.CHATHU, THARAVATTATHU HOUSE,NARIPATTA (P.O), VATAKARA. 2. VINOD @ VINODKUMAR,S/O.KUNHANDI, AJITH VIHAR (UPPALACKAL HOUSE), ONCHIYAM,MADAPPALLI P.O.,VATAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------- 1. THE STATE OF KERALA, REP.BY THE SUB INSPECTOR OF POLICE, VATAKARA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KUNHIKRISHNA KURUP,S/O.KANNAN NAMBIAR, MANNANTHALA HOUSE,AYANCHERI P.O.,VATAKARA. PUBLIC PROSECUTOR SRI.MOHANAN V.T.K-R1 ADV.SRI.P.M.HABEEB FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPLI.NO.2004/2009 IN CRL.M.C.NO.1278/2009 DISMISSED 19.10.2009 Sd/- (C.T.RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. --------------------------------------------- CRL.M.C. NO. 1278 OF 2009 --------------------------------------------- Dated this the19th day of October, 2009 ORDER Petitioners are accused C.C.No. 107/06 on the file of the Judicial First Class Magistrate Court, Vatakara. They are facing indictment under Sections 406 and 506(1) read with 34 I.P.C. 2. The 2nd respondent-defacto complainant earlier filed a complaint before that court and it was forwarded to the 1st respondent for investigation under Section 156(3) of the Cr.P.C. However, that was referred after investigation stating that the matter is of civil nature. Subsequently, he filed a protest complaint and the learned Magistrate took cognizance on the complaint, under Section 406 and 506(1) of the I.P.C. Cognizance of offence under Section 420 was not taken. The case of the prosecution is that the second respondent who is a lessee had sub-leased the premises Door.No.30/891 of Vatakara Municipality to the petitioners for conducting a parallel college. An agreement was entered into between them on 24.4.99 (Annexure-A3). It is alleged that the building and the furniture thereto were handed over to the Crl.M.C.No.1278 of 2009 2 petitioners. According to the second respondent, the petitioners had committed default in payment of rent and consequently he was constrained to pay rent arrears from his pocket to the land lord. The lis in regard to the same was later amicably settled and the petitioners had agreed to pay an amount of Rs.55,000/- on such conciliation. However, they retreated from the same and consequently, they were ousted from the said premises. It is the further case of the second respondent that while vacating the said premises, they took the furniture entrusted with them and taken them to the newly started parallel college by name ' New Sagar Arts College'. When the second respondent enquired about the same and demanded return of the furniture and the other monitory benefits he was threatened with life. It was with these allegations that he filed Annexure -2 complaint. 3. The petitioners herein however refuted the entire allegations raised in Annexure 2 complaint. According to them, at no point of time, the second respondent issued any notice demanding arrears of rent due under the sub-lease arrangements. According to the petitioners, it is only to cover up the said lacuna that now Annexure- 4 document has been fabricated and according to the petitioners, it is undated and unsigned by any of the parties. Crl.M.C.No.1278 of 2009 3 That apart, it is contended that the dates of occurence of incidence are not specifically mentioned in Annexure -2 complaint. In short, it is the contention of the petitioners that even if the entire allegations are taken as correct, they would constitute only a dispute of civil nature and did not constitute the offences as alleged by the second respondent. Therefore the Annexures 2 complaint and 5 charge sheet are liable to be quashed, it is contended. 4. It can be seen that there is an averment that benches, desks, tables and Almira required for the conduct of a college were entrusted with the petitioners by the second respondent. Further it is alleged in the complaint that those furniture were taken away by the petitioners without the permission of the second respondent while vacating the premises and witnesses who had actually seen them removing these furniture from the premises in question are also available and it is the case of the second respondent that they are in the newly started college of the petitioners viz., ‘New Sagar Arts College’. There is also another allegation in the complaint that pursuant to conciliation, the petitioners have agreed to pay an amount of Rs.55,000/- to the second respondent. However, they did not actually give the said amount which is legally due to him and when demanded for the same they threatened to kill him. Crl.M.C.No.1278 of 2009 4 5. It is the settled position of law that the sufficiency or otherwise of the evidence need not be looked into by this court in a petition under Section 482 of the Cr.P.C. This court can look into the aspect as to whether the allegations incorporated in the complaint satisfies the ingredients so as to attract the offence alleged against the accused. Prima facie, the allegations are there. Therefore, this court cannot now interfere with the proceedings initiated based on the allegations incorporated in the Annexure-2 complaint and bring about abrupt termination proceedings based on Annexures 2 and 5. Therefore, the above Crl.M.C is liable to fail. At the same time the petitioners are at liberty to raise the plea of discharge at the appropriate stage if that stage is not crossed by now, before the court below. Needless to say that if such a plea is raised the court below shall consider the same before proceeding further if that stage is not crossed as noticed earlier. Subject to this, the above Crl.M.C is dismissed. (C.T. RAVIKUMAR) JUDGE spc