IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 Crl.L.P..No. 231 of 2010() -------------------------- CC.49/2008 of J.M.F.C.-II, SULTHANBATHERY ...................................... (S): PETITIONER/COMPLAINANT ------------------------------------------ KUNHAPPAN, AGED 53 YEARS, S/O.UTHUPPU, RESIDING AT KUNNUMPURATH HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. BY ADVS. SRI.A.V.JAMES SRI.P.DALBI EMMANUEL RESPONDENT(S): ACCUSED ---------------------------------------- 1. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BINDHU, AGE NOT KNOWN, W/O.SHIJU, RESIDING AT PERUMBALLY HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 3. SATHI, AGE NOT KNOWN, W/O.SATHEESH, RESIDING AT KIZHAKKUMKARA HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 4. NISHA, AGE NOT KNOWN, W/O.VINOD, RESIDING AT ELAMADAM HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 5. MINI, AGE NOT KNOWN, W/O.BENNY, RESIDING AT PERIYAMBALLY HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. CONTD...2 Crl.L.P..No. 231 of 2010 2 6. SATHI, AGE NOT KNOWN, W/O.SASI, RESIDING AT THUDATHIL HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 7. SUMATHI, AGE NOT KNOWN, W/O.VIJAYAN, RESIDING AT ELAMADAM HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 8. SALI.A, AGE NOT KNOWN, W/O.THANKACHAN, RESIDING AT PADATHUKATTIL HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 9. THRESSIYAMMA, AGE NOT KNOWN, W/O.POULOSE, RESIDING AT KOOTTUNGAL HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 10. SARASAMMA, AGE NOT KNOWN, W/O.THANKAPPAN, RESIDING AT KIZHAKKUMKARA HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 11. ANNAKUTTY, AGE NOT KNOWN, W/O.VARKEY, RESIDING AT URUMBIL HOUSE, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. 12. GEETHA, AGE NOT KNOWN, W/O.RADHAKRISHNAN, RESIDING AT PARAVILAPUTHAN VEEDU, PARUDEESA, SEETHAMOUNT.P.O, PULPALLY, WAYANAD. BY ADV.SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. L.P.No.231 of 2010 ------------------------------- Dated this the 5th day of March, 2010. O R D E R This petition is at the instance of the complainant in a prosecution for the offence punishable u/s.499, s.500 r.w. Section 34 of IPC, seeking leave of this court to file an appeal against the order of acquittal passed by the Court below u/s.255 (1) of Cr.P.C. in C.C.49/08 of the court of Judicial First Class Magistrate - II, Sultan Batheri. 2. The case of the complainant is that, he was conducting a business in Parudeesa Kavala at Seethamount. He is a political and social worker and was popular among the people of the locality. The allegation in the complaint is that, the accused who are the members of an Ayalkoottam at Parudeesa Kavala, had constructed a waiting shed 100 mtrs. east of the present bus stop and another Ayalkoottam constructed another bus waiting shed 50 mtrs., west of old waiting shed. According to the complainant, since a dispute arose as to where the buses to stop, police, RTO and others intervened and it was decided that Crl. L.P.No.231 of 2010 2 buses should stop in the old bus stop, which is in front of the complainant's shop. Thus, according to the complainant due to the animosity connected with the above dispute and with an intention of defaming the complainant, the accused prepared a written petition against the complainant and other persons, stating that they used to pass lewd comments at ladies who were waiting for the bus and used to clap and laugh loudly. According to the complainant, the accused spread this rumour statement in the locality to obtain the signature of the local people and many of them signed in the complaint believing it to be true. The said complaint was lodged on 12.12.2007 to Circle Inspector, Kalpetta Vanitha cell, based upon which a case was registered as 423PTN -P1/WC/07. According to the complainant, the name of the complainant and others are stated in the complaint and they were called to the police station for investigation on 21.12.2007 and on their appearance before the police station, they apprised the police regarding the correct facts and accordingly the said complaint was dismissed by giving a warning to the accused. Crl. L.P.No.231 of 2010 3 3. After recording the sworn statement of the complainant and witnesses, cognizance was taken and the case was taken on file u/s.500 r/w.s.149 of IPC. During the course of the trial, Pws.1 to 3 were examined from the side of the complainant and Exts.P1 to P4 were marked. One witness was examined as DW1 from the side of the defence but no defence exhibits was marked. Based upon the materials and evidence on record and the pleadings of the parties, the court below framed two points for its consideration and finally found that the accused are not guilty and accordingly they were acquitted u/s.255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged, by filing a criminal appeal for which leave of this court is sought u/s.378(4) of Cr.P.C. 4. I have heard Shri.A.V.James, the learned counsel appearing for the petitioner/complainant and also perused the impugned judgment and the materials which were made available to me by the learned counsel for the petitioner. 5. According to the learned counsel, the order of acquittal passed by the Trial Court is incorrect, as the complainant has Crl. L.P.No.231 of 2010 4 established the essential ingredients of sections 449 and 500 of IPC. According to the learned counsel, the court below ought to have found that the accused filed the complaint before the police station and circulate the said complaint among the local people with a view to defame the petitioner/complainant. It is also the case of the counsel that, the accused did not take any care or precaution u/s.52 of IPC and therefore the action against the accused is perfectly justified. According to the learned counsel, the Trial Court deviated from the issue which came up for consideration and based upon the same facts, which are beyond the purview of the dispute, came into a conclusion that the accused is not guilty. The learned counsel emphatically submitted that the Circle Inspector, Kalpetta Vanitha Cell, issued a notice to the complainant for appearing before them and therefore the said notice itself is sufficient to show that the accused targeted the complainant through the petition, which circulated among the local people to get their signatures. Thus according to the learned counsel, the finding arrived on by the Crl. L.P.No.231 of 2010 5 court below is absolutely illegal and liable to be interfere with, for which an appeal to be filed and therefore the counsel for the petitioner requested for the leave of this court to file an appeal against the above order of acquittal of the court below. 6. I am unable to accept the above arguments, in the light of the facts and circumstances involved in the case and the reasoning assigned by the court below in acquitting the accused. In the appeal memorandum in the above Crl.L.P., the petitioner has no case that the court below had omitted to consider any materials or evidence on record and thus came into a erroneous conclusion. So also at the time of hearing of the matter, the learned counsel has no case that the learned Magistrate failed to consider any material or evidence on record and because of non- consideration of such material, the finding of the court below is perverse or vitiated. 7. The subject matter of the above case is within a narrow compus. According to the petitioner, he approached the court below and filed a complaint, when the accused prepared a Crl. L.P.No.231 of 2010 6 petition and circulated the same among the local people for obtaining their signature for the purpose of filing the same before the police, so as to redress their grievances stated in the complaint. The learned counsel made available to me a copy of the above mentioned petition and on perusal of the same, I could not find out the name of the complainant or the other persons mentioned by the complainant. Going by the said petition, I find nothing defamatory, so as to attract the offence alleged against the respondent/accused. The learned Magistrate, who got the privilege in observing the demeanour of the parties, on cross examination of the witnesses, on appreciation of the evidences adduced by the complainant, has held that Pws.2 and 3 have categorically stated that the complainant did not disclose anything defamatory about the petitioner to them. 8. According to the Trial Court, even after the deposition of PW1, the complainant has no case that due to the circulation of the petition, his business got diminished and he was kept out of various political and public mediations. The Trial Court has Crl. L.P.No.231 of 2010 7 specifically found that during the cross examination of PW1, he had admitted that his business had not suffered and he was not kept out of any meeting. It is also brought from record, as found by the court below, that the complainant/petitioner was an accused along with PW2 and husband of PW3 in CC.205/08. The subject matter in CC.205/08 is also connected with the dispute regarding the bus stop and obstruction of the bus service. It is also came out from the record that the complainant was one of the parties, who voiced against the shifting of the bus stop and erection of the new waiting shed. His interest behind the same is quite gatherable. 9. After considering the evidence of PW1 and Ext.P1, the learned Magistrate has specifically found that Ext.P1 complaint was disposed of since there was a real dispute between the parties about the change of bus stop, which was settled by police and RTO and even thereafter both the parties continued to quarrel over small matters and hence both the parties were sent with a warning. According to the learned Magistrate, Ext.P1 Crl. L.P.No.231 of 2010 8 complaint was not a false one and there was some substance on the basis of the above factual inputs, the learned Magistrate considered the legal provision and its applicability and finally came into a conclusion after referring various authorities that the accused had succeeded in discharging their burden, in establishing their specific defence. 10. In the decision reported in 2009(1) Supreme 67 [Batcu Venkateshwarlu and Ors. Vs. P P High Court of A P] and in 2009(1) Supreme 355 [Arun Vs. State by Inspector of Police, Tamil Nadu], the honourable apex court has held that, by an order of acquittal, the accused has got double presumption of innocence and while exercising the appellate jurisdiction, the court shall not interfere with such order of acquittal, unless there are compelling and substantial reasons. On application of the above principles, in the facts and circumstances involved in the rpesent case, especiqally in the light of the materials referred above, I am of the view that there is no reason to interfere with the order of acquittal recorded by the Trial Court and there is no Crl. L.P.No.231 of 2010 9 substantial question of law involved so as to grant leave to file appeal against the above order of acquittal issued by the Trial Court. In the result, there is no merit in the petition and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/