IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 CRL.A.No. 1212 of 2001() {C.C.NO.350/1999 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, PERAMBRA} .................... APPELLANT(S)/COMPLAINANT: JOY THOMAS, S/O.THOMAS, “JYOTHIS”, KALLODE AMSOM DESOM. BY ADV. SRI.P.K.SURESH KUMAR RESPONDENT(S)/ACCUSED & STATE: 1. P.T.GEORGE, S/O.THOMAS, PANAMATTATHIL VEEDU, FILED VIEW COLONY, CHEVAYOOR, KOZHIKODE. 2. JEBIN, S/O.P.T.GEORGE, PANAMATTATHIL VEEDU, FIELD VIEW COLONY. 3. GEORGE @ JERALAD, S/O.MANUVAL, ONATTU, THIRUVAMBADY AMSOM DESOM. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY ADV. SRI.K.A.SALIL NARAYANAN R4 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CR.A.No.1212 of 2001 D ------------------------- Dated this the 9th day of February, 2009. JUDGMENT The complainant, in C.C.No.350/99 on the file of the Judicial Magistrate of the First Class-II, Punalur, is the appellant herein. The accused were prosecuted for offences under Sections 447, 427 read with Section 34 of the Indian Penal Code. 2. On an appreciation of the evidence, the court below came to the conclusion that the complainant has failed to prove the guilt of the accused beyond reasonable doubt and proceeded to acquit the accused under Section 255(i) of the Code of Criminal Procedure. This appeal has been filed after obtaining leave from this court. 3. The case of the complainant, in brief, is that he was having a property near Kallode and the property was lying with a compound wall on all four sides. That six cents, out of a large extent, was sold to one Joseph, a relative of the 3rd accused. Though the CR.A.No.1212 of 2001 A :: 2 :: document contains a recital as an assignment deed, it was executed only for securing the amount borrowed from Joseph. Later Joseph refused to re-transfer the property, though the amount was repaid. The complainant continued to be in possession of the property and the complainant had instituted a suit against the said Joseph. Enraged by this, 3rd accused, along with other accused trespassed into the property covered by the document and demolished the compound wall on 18.3.1999. The accused thereby committed the offences punishable under Sections 447 and 427 read with Section 34 of the Indian Penal Code. 4. The evidence of the complainant and witnesses on his behalf was analysed by the courts below. It was found that the complainant was unable to produce any acceptable evidence to show that he continued to be the owner in possession of the property, which was allegedly trespassed upon by the CR.A.No.1212 of 2001 A :: 3 :: accused. The court below took note of the fact that the complainant had executed an assignment deed in respect of 6 cents of property. Though he had maintained that the document was a sham document, he was not able to prove the same. 5. For all these reasons, the court below came to the conclusion that the complainant was not able to prove that the accused had committed trespass on his property and had also committed mischief. 6. Having perused the evidence on record I am in agreement with the court below. Obviously, there were rival claims over the property which clearly show that the complainant failed to prove absolute title and possession over the property, which he alleged was trespassed upon by the accused. The assignment deed by which the complainant had assigned the property to one Joseph was sufficient to prove the complainant's claim of title CR.A.No.1212 of 2001 A :: 4 :: to the property. Though the complainant had a claim that it was sham document, it obviously could not have been appreciated by the court below which was only called upon to consider the complainant's case of trespass by the accused and commission of mischief. In these circumstances, the court below has correctly come to the conclusion that the evidence adduced on behalf of the complainant was insufficient to bring home the guilt of the accused. For all these reasons, I am in complete agreement with the court below that the accused were entitled to discharge under Section 255(i) of the Code of Criminal Procedure. The appeal is bereft of merit. Accordingly, the same is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge