IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 Crl.MC.No. 1828 of 2005() ------------------------- CRIME NO.341/04 OF ERATTUPETTA POLICE STATION PETITIONER/ACCUSED: ------------------------- JOY GEORGE, S/O.GEORGE, KIZHAKKETHOTTATHIL HOUSE, MANIYANKUNNU, POONJAR THEKKEKKARA, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------- 1. JUSTIC THOMAS, S/O.THOMAS, KIZHAKKETHOTTATHIL HOUSE, MANIYANKUNNU POONJAR THEKKEKKARA, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.J.THOMAS FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.7837/05 IN CRL.M.C.NO.1828/05 //DISMISSED// 31.3.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.1828 OF 2005 ----------------------------------------------------- DATED THIS THE 31st DAY OF MARCH, 2009 O R D E R The petitioner herein is the first accused in Crime No.341/2004 of Erattupetta Police Station alleging offence under Section 420 read with Section 34 of IPC. The prayer in this petition filed under Section 482 of Cr.P.C. is to quash Annexures A, B and C. Annexure-A is the private complaint filed by the first respondent herein against the petitioner and two other accused alleging offence under Section 420 read with Section 34 of IPC. Annexure-B is the copy of the FIR in that case. Annexure-C is the copy of the final report filed by the police after investigation of the case. Pending this petition, the case was taken cognizance by the learned Magistrate and is pending before the Court of J.F.C.M., Erattupeta as C.C.No.85/05. The further proceedings in that case stand stayed by this Court. 2. Heard the learned counsel appearing for the petitioner and for first respondent. Heard the learned Public Prosecutor also. CRL.M.C.No.1828/05 -2- 3. It is submitted by the learned counsel appearing for the petitioner that there are no sufficient averments in Annexure A complaint to attract the offence under Section 420 of IPC as against the petitioner. It is also submitted by the learned counsel that the transaction between the petitioner and the first respondent is purely civil in nature and the petitioner has filed a civil suit before the Munsiff's Court, Erattupetta for declaration of his title to the property in question and for a decree for permanent prohibitory injunction, restraining the first respondent herein from trespassing into the property. It is also submitted by the learned counsel that the said suit, O.S.No.43/03 of the Munsiff's Court, Erattupetta was decreed in favour of the petitioner herein. Subsequently, the first respondent/defendant in the suit preferred appeal, A.S.No.72/04 before Sub Court, Pala, which was re-numbered as A.S.No.254/07 before the District Court, Kottayam and the same was dismissed for default by the learned District Judge, Kottayam as per judgment dated 25.10.2007. 4. The argument advanced by the learned counsel for the petitioner regarding the pendency of the civil suit and the appeal are not disputed by the learned counsel for the first respondent. It is submitted by the learned counsel for the first respondent that a CRL.M.C.No.1828/05 -3- petition is filed before the District Court, Kottayam to restore the appeal, which is pending. 5. Considering the facts in dispute and the circumstances of the case, I find that the disputed facts can be decided by the learned Magistrate after considering the evidence to be adduced on the prosecution side and also on the side of the defence, if any. It is the duty of the trial court and this Court cannot enter into any finding on those aspects. The power under Section 482 of Cr.P.C. can be exercised only sparingly and with caution. In these circumstances, I find no ground to quash Annexures A, B and C and this petition is liable to be dismissed. In the result, the Crl.M.C. is dismissed. Both parties can raise their contentions before the J.F.C.M's. Court, Erattupetta. M.C.HARI RANI, JUDGE. dsn