IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 Crl.MC.No. 767 of 2008(E) ------------------------------------ [C.C. NO.685/2006 OF J.F.M.C. II, KOCHI, CRIME NO.78/2006 OF THOPPUMPADY POLICE STATION] .......... PETITIONERS: --------------------- 1. P.J. ROMEO JACOB, S/O.LATE JACOB, AGED 65 YEARS, RESIDING AT 15/1491A PANACHIKAL HOUSE, KOCHI-2. 2. MRS. PHILOMINA, D/O.GEORGE AGED 48 YEARS, RESIDING AT 15/1491A PANACHIKAL HOUSE, KOCHI-2. BY ADVS. SRI.GEORGE CHERIAN (THIRUVALLA), SMT.K.S.SANTHI. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATION HOUSE OFFICER THOPPUMPADY POLICE STATION, THOPPUMPADY. 3. P.J. WILLIAMS, AGED 77 YEARS, S/O.JACOB, XV/373, PANACHICKAL HOUSE, NEAR LORETTO CHURCH, MOOLAMKUZHI, KOCHI-7. R1 & R2 BY PUBLIC PROSECUTOR SMT. SUMANGALA.P.N, R3 BY ADVS. SRI.K.N.SIVASANKARAN, SRI.SUNIL SHANKER. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/03/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.767 of 2008 ---------------------------------------------------- Dated this the 29th day of March, 2011 Order The petitioners are the accused in crime No.78 of 2006 of Thoppumpady Police Station. A private complaint was filed by the third respondent alleging commission of offences under Sections 183, 427, 465, 468 read with 34 I.P.C. It is stated that after completing the investigation charge sheet was laid against the petitioners herein. It was stated that the original complaint was filed arraying the Corporation officials also as the accused. Learned counsel for the petitioners would submit that the bone of contention is the plea of kudikidappu raised by the third respondent in respect of a hut situated in the property in question. The allegation made by the third respondent was to the effect that the original hut was occupied by his father Jacob. Jacob was stated to have expired in 1954. The wife of Jacob was stated to have expired in 1975. The complainant Williams, Romeo Jacob (the first petitioner herein), and his sisters were stated to be the legal heirs of deceased Jacob. According to the complainant, there were two huts in the said property, out of Crl.M.C.767/2008 2 which one was stated to have been occupied by himself and the other hut, according to him, belongs to the complainant and Romeo Jacob, the first petitioner herein. According to him, he has got fractional right in the hut which was occupied Romeo Jacob also. 2. Learned counsel for the petitioners would submit that the original owner of the property was one Fr.Wilson. His Power of Attorney O.J.Colombus executed an assignment deed as document No.265/92 in favour of Philomina,the 2nd petitioner (wife of the first petitioner). It is contended that after the said assignment deed, they had approached the Corporation authorities for plan and licence and after obtaining the same, they constructed a building in that property. The learned counsel submits that a suit was filed by Williams, the third respondent herein as O.S.No.166 of 2000 challenging the assignment deed and for other ancillary reliefs. Though that suit was decreed, the petitioners herein filed A.S.No.82 of 2002 before the Sub Court, Kochi and the appellate court remitted the question of kudikidappu to the Land Tribunal under Section 125(3) of the K.L.R.Act. The said matter is reported to be pending as R.C.No.6 Crl.M.C.767/2008 3 of 2003. It is further submitted by the learned counsel for the petitioners that two more suits were filed by the third respondent-Williams, one as O.S.No.113/06 and another as O.S.No.202 of 2006; concerning kudikidappu right and challenging the right of the first petitioner herein over the property covered by document No.265/92. Since the bone of contention is actually the kudikidappu right claimed by the parties and since that matter is now pending before the Land Tribunal, according to the learned counsel for the petitioners, there can be no successful prosecution at all. According to the petitioners, even according to the third respondent, he has get only fractional right over the kudikidappu and the other fraction even according to him belongs to the first petitioner and therefore even if his case is accepted, a criminal prosecution cannot be sustained as the dispute is of civil nature. Since it would prejudice the parties, it is just and proper not to dwell upon the right of the parties as to the kudikidappu claim in this proceedings. But the contention raised by the third respondent that the document was executed fraudulently to cheat him and there was dishonest intention in getting that document executed Crl.M.C.767/2008 4 does not appear on the face of the record to be true for the purpose of a successful culmination of the prosecution. The dispute is of civil nature, especially in view of the fact that the matter is pending adjudication before a competent civil court. On an overall consideration of the entire facts and circumstances, I find that the case C.C.685 of 2006 is liable to be quashed. In the result, the Crl.M.C. is allowed. C.C.No.685 of 2006 of J.F.C.M.Court-II, Kochi is quashed. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.767/2008 5