IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.Rev.Pet.No. 3093 of 2010() ----------------------------------------- CMP.5599/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------------------------------- C.K.JYOTHIRAJ, S/O.C.V.KUNJIKKUTTAN, SANDHYA NIVAS, C.M.C.-15, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.K.RAMANATHAN RESPONDENT(S): ACCUSED ------------------------------------------ 1. C.K.ASOKAN, CHARANGATTU HOUSE, PERUNNERMANGALAM, MARARIKKULAM NORTH VILLAGE, ALAPPUZHA DISTRICT. 2. JIJI AUGUSTINE, CHULLIKKAL HOUSE, POLLETHAI, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT. 3. THE BRANCH MANAGER, LANDMARK, DREAM HOME, EAST OF MANORAMA JUNCTION, CHERTHALA, ALAPPUZHA DISTRICT. BY PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.3093 of 2010 ------------------------------- Dated this the 26th day of October, 2010. O R D E R The complainant in a private complaint is the revision petitioner as he is aggrieved by the order dated 27.9.2010 in C.M.P.No.5599/08 of the Court of the Judicial First Class Magistrate-1, Cherthala, by which his complaint was dismissed u/s.203 of Cr.P.C. 2. The learned counsel for the revision petitioner vehemently argued that the order dismissing the complaint of the revision petitioner is factually and legally unsustainable, since the learned Magistrate did not consider the evidence on materials and also the grounds made out by the complainant. In support of the above submission, the learned counsel invited my attention to the decisions reported in 2010(2)KLT Supplementary page 57 {JT 2010(5) 331} Gupta Vs. Ashutosh Gupta, 2009(4) KLT page 283 Balan Vs. State of Kerala and 2005(1) KLT SN 113 State of M.P. Vs. Paltan . 2 Crl. R.P.No.3093 of 2010 3. I have carefully considered the arguments advanced by the learned counsel and also perused the order impugned. On such a consideration it can be seen that the 'Charankattu Enterprises' is a partnership firm, of which the revision petitioner as well as the 1st accused are partners and even after the death of their father Mr.C.V.Kunjikuttan, the firm was continuously functioning. It is also a fact beyond dispute that the revision petitioner and the 1st accused are step-brothers. According to the complainant, the property including the room bearing No.547/07 and 547(A) of Cherthala Municipality are the properties of the above firm. But without the consent of the other partners, the 1st accused leased out the shop room No.547 (A) to accused numbers 2 and 3 and he had obtained a huge amount, which was not accounted by him. It is also the case of the complainant that A1 with the intention to cause wrongful loss to other partners conspired with other two accused and had broke open the lock of the shop rooms bearing numbers 547 and 547(A) and destroyed the wall and floor and had started a 3 Crl. R.P.No.3093 of 2010 shop room of house hold articles by name and sign “LAND MARK DREAM HOME”. According to the complainant, the act of the accused persons caused a loss of Rs.15,000/-. 4. With the above allegation, the revision petitioner approached the court below by filing C.M.P.No.5599/08 and the learned Magistrate recorded the sworn statement of the complainant and his witnesses Cws.2 to 4. Apart from that, the learned Magistrate as part of enquiry u/s.202 of Cr.P.C. called for a report from the Station House Officer, Cherthala police station and accordingly the police had filed a mahazar dated 30.8.2010 and report dated 1.3.2010, after investigation. After consideration of the entire materials and evidence on record, the learned Magistrate has concluded that the evidence adduced before the court clearly shows that, A1 is having some right over the property and the said fact is admitted by the revision petitioner in the complaint and in his sworn statement. Thus accordingly, the learned Magistrate concluded that since A1 is having some right over the shop room, it can not be said that he 4 Crl. R.P.No.3093 of 2010 had trespassed into the property and committed criminal trespass as alleged. It is also observed by the learned Magistrate that, from the complaint and the statements before the courts, it is well clear that it is a family dispute and it is a dispute between the partners and moreover it is a purely civil dispute. Thus the learned Magistrate finally concluded that there are no sufficient grounds to proceed against the accused and accordingly the court dismissed the complaint u/s.203 of Cr.P.C. 5. I have gone through Annexure 1 complaint and the sworn statement of the complainant, which produced as Annexure-III and also statement of the other witnesses. In support of the assertion contained in the complaint, in his sworn statement, the complainant has stated that though the father of the complainant and the 1st accused are one and the same person, their mothers are different and after the death of the father Charankattu Enterprises continued its function and no change are effected regarding the internal structure of the 5 Crl. R.P.No.3093 of 2010 enterprises and the terms and conditions and also with respect to the right of the partners. All partners are having equal right and no partner has any right to lease out any property of the partnership firm and if any partner wants to lease out any property, he should obtain the consent of all the other partners. A1 and the other accused trespassed into the shop room no.547 (A) and broke open the lock and caused damage to the wall and the floor of the shop room and a new consent with name “Landmark Dream Home” opened w.e.f. 23.8.2008 and functioned there. It is specifically stated in the sworn statement that the accused nos.2 and 3 started the said concern on obtaining consent from A1, after giving heavy amount to the first accused and caused damage. It is also stated that the first accused who has got duty to protect the right and asset of Charankattu Enterprises cheated the other partners and obtained heavy amount from the other accused and thereafter conspiring with the other accused, A1 has preferred caveat before Civil court. 6 Crl. R.P.No.3093 of 2010 6. From the above sworn statement of the complainant it is crystal clear that, the complainant is more concerned with the act of A1, being the partner of the very same partnership firm and he omitted to account the amount obtained by him, after leasing out the shop room of the firm to A2 and A3. In this juncture it is relevant to note that the learned Magistrate has categorically found that the complainant has admitted the right of A1 over the property in question and whatever act he done, it can be treated as only the exercise of his right and if the other partners have got any grievance, the remedy is elsewhere and because of the above act, it can not be said that the overtact alleged are sufficient to attract any criminal liability. It is also relevant to note that, after the lease arrangement between A1 from one side and A2 and A3 on the other side, A2 has already approached the civil court by filing a caveat as a precaution, which fact itself is sufficient to show that A1 has no criminal intention other than to protect and exercise his right over the property of the partnership firm, of which he has also a right. 7 Crl. R.P.No.3093 of 2010 Therefore according to me, the learned Magistrate is perfectly legal and valid in dismissing the complaint u/s.203 of Cr.P.C. and no interference of this court is warranted. In the result, there is no merit in this revision petition and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/