IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.L.P..No. 1513 of 2008() --------------------------- CC.254/2004 of J.M.F.C.-I, PERINTHALMANNA .................... PETITIONER/ COMPLAINANAT -------------------------------------------- K.N.JAYAKRISHNAN, S/O.NARAYANAN NAIR, VIJAYA NARAYANA NIVAS, PERINTHALMANNA AMSOM DESOM, PERINTHALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENT(S): --------------- 1. N.JAYAKRISHNAN, S/O.PADMANABHAN NAIR, JAYA VIHAR, PERINTHALMANNA AMSOM DESOM, PERINTHALMANNA, MALAPPURAM DISTRICT. 2. N.JAYASANKAR, S/O.PADMANABHAN NAIR, JAYA VIHAR, PERINTHALMANNA AMSOM DESOM, PERINTHALMANNA, MALAPPURAM DISTRICT. BY P.P. SRI. S.U. NAZAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.L.P. No. 1513 of 2008 ------------------------------------------------- Dated this the 20th day of November, 2008 ORDER This application for leave is filed by the complainant in a prosecution under Secs.447 and 427 IPC. He alleges that the accused persons – 2 in number, along with some others, had at about 11.45 p.m. on 30/7/03 demolished a compound wall by the side of a pathway put up by the complainant. The said newly constructed wall was allegedly demolished by the accused persons resulting in loss of about Rs.20,000/- to the complainant, it was alleged. 2. About this alleged incident which took place on 30/7/03, Ext.P2 – FIR is seen lodged before the police only on 5/8/03. The police conducted an investigation. They filed a refer report. Dissatisfied with the refer report, a protest complaint has been filed by the complainant. Crl.L.P. No. 1513 of 2008 -: 2 :- 3. The accused entered appearance. The trial commenced. P.Ws.1 to 3 were examined and Exts.P1 and P2 were marked on the side of the appellant/complainant. On the side of the respondents/accused no oral evidence was adduced; but Exts.D1 and D2 were marked. 4. According to the accused, no incident, as alleged, had at all taken place. On coming to know that the accused persons had filed a civil suit on 4/8/04 against the attempts of the appellant to obstruct the pathway by constructing a compound wall, totally false allegations are raised belatedly on 5/8/03 by the complainant. In support of their case, they proved Exts.D1 and D2 judgment and decree in the suit filed by them. 5. P.W.1 is the complainant himself. P.Ws.2 is his wife. P.W.3 is a person related to P.Ws.1 and 2 who had allegedly seen part of the occurrence; but, according to him, he had reached the scene of crime after the incident. 6. Thus, the learned Magistrate was left with the interested testimony of P.Ws.1 and 2 which was supported by the allegations in Ext.P2 FIR registered on 5/8/03. 7. The learned Magistrate, on an anxious consideration of all the relevant circumstances, came to the conclusion that the version of the complainant does not inspire confidence. P.Ws.1 Crl.L.P. No. 1513 of 2008 -: 3 :- and 2 are extremely interested witnesses. Admittedly, disputes were in existence between the complainant and the accused persons for a long time prior to the alleged incident in this case. The learned Magistrate also took note of the delay in filing Ext.P2 FIR. The learned Magistrate rightly, accordingly to me, found the significance of the delay to be crucial as the civil suit had been filed long later on 4/8/03 and it was only thereafter on 5/8/03 that the allegations were raised. The learned Magistrate further came to the conclusion that the oral evidence of P.Ws.1 and 2 is not inspiring. 8. In these circumstances, the learned Magistrate came to the conclusion that, at any rate, the verdict of guilty and conviction cannot be entered against the respondents/accused. The petitioner/appellant claims to be aggrieved by the impugned judgment. Leave is sought under Sec.378(4) Cr.P.C. to appeal against the impugned judgment of acquittal. 9. While considering an application for leave, this Court has to consider whether there is an arguable case and whether there are chance of success in the appeal. Having considered all the relevant circumstances, I am of opinion that the conclusion of the learned Magistrate on all the relevant aspects does appear to be absolutely reasonable, fair and just. The delay Crl.L.P. No. 1513 of 2008 -: 4 :- is enormous and it is crucially relevant that the FIR is seen lodged long after the incident – 30/7/03. That too only on 5/8/03 after Ext.D1/D2 suit was filed by the accused on 4/8/03. The court below accordingly committed no error in reckoning the delay to be crucial and significant in the facts and circumstances of this case. 10. Except the oral evidence of P.Ws.1 and 2, there is absolutely no tangible or acceptable evidence to prove the alleged culpable conduct of the accused persons. The learned Magistrate appears to have taken note of the incongruity between the evidence of P.Ws.1 and 2 - the only witnesses who are shown to be the deeply interested in the subject matter. 11. I am, in these circumstances, satisfied that there is no room for a worthwhile challenge against the impugned judgment and that the leave under Sec.378(4) Cr.P.C. does not, in these circumstances, deserve to be granted. 12. This petition for leave under Sec.378(4) Cr.P.C. is accordingly dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.L.P. No. 1513 of 2008 -: 5 :-