IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 23RD DAY OF FEBRUARY 2010/ Crl.MC.No. 1123 of 2005 --------------------------- CC.621/2004 of J.M.F.C.,ERATTUPETTA PETITIONERS/ACCUSED 1 & 2:: ---------------------------- 1. THRESIAMMA MATHEW, W/O. LATE MATHEW, KUNNUMPURATH HOUSE, TEEKOY P.O., TEEKOY VILLAGE MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. KOCHURANI, D/O. LATE MATHEW, KUNNUMPURATH HOUSE, TEEKOY P.O., TEEKOY VILLAGE MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADVS.SRI.T.A.SHAJI SMT.T.V.NEEMA RESPONDENTS/STATE & COMPLAINANT:: ------------------------------------ 1. STATE OF KERALA (S.I. OF POLICE, ERATTUPETTA POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. JOSEPH GEORGE, S/O. M.C. GEORGE, MANAYANICKAL KATTAKAYATHU HOUSE, PALA. R1 BY P.P.SRI.PUZHAKARA MUHAMMED R2 BY ADV. SRI.C.S.SUNIL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-02-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------- Crl.M.C.No.1123 of 2005 ----------------------------------- Dated this the 23rd day of February, 2010 ORDER Petitioners filed this petition to quash all the proceedings in C.C.621/2004 and Annexure-B complaint. 2. According to prosecution, first and second accused are mother and daughter and they committed offence under Section 379 and 34 IPC, with respect to three Pongilyam trees standing in the property of the complainant, who is the second respondent herein on 15.9.2003 at about 2 p.m. 3. Learned counsel appearing for petitioners submitted that a complaint was lodged by defacto complainant before police alleging the same offence and a crime was registered as Crime No.419/2003 on 6.10.2003 and on investigation, the said case was referred as per Annexure-A report by the police. Thereafter, the present complaint Annexure-B is filed making same allegations. It is submitted that there is a bonafide dispute regarding possession of the property from which the trees are allegedly cut and removed. When there is bonafide dispute Crl.M.C.No.1123 of 2005 2 regarding the possession, no offence under Section 379 IPC will lie, it is submitted. 4. It is only if the trees are cut and removed from the property, which is in possession of defacto complainant, the offence would lie, it is submitted. It is also pointed out that there is not even an allegation that the property is in possession of the defacto complainant and hence the basic allegation being missing in the complaint, petitioners cannot be proceeded against for the offence under Section 379 IPC, it is submitted. 5. Learned counsel for petitioners also submitted that there were civil cases between the parties, petitioners had filed a suit before the Munsiff Court as O.S.No.118/2003 seeking injunction restraining the defacto complainant from trespassing into the property and destroy the boundary etc. and an interim injunction was granted against defacto complainant. He also filed O.S.136/2003 before the Munsiff Court on 30.11.2003 with the same prayer, since there was repeated threat of trespass by defacto complainant. In such circumstances, there is a bonafide contention regarding possession of property and petitioners cannot be proceeded against for offence under Section 379, it is Crl.M.C.No.1123 of 2005 3 submitted. The first petitioner is a lady aged more than 80 years and the second petitioner also is a woman. It is not correct to say that they committed the offence as alleged, it is submitted. 6. Learned counsel for second respondent strongly argued that petitioners and their predecessors were encroaching upon this property ever since 1967. Petitioners are residing on the southern side of defacto complainant's property. There was an encroachment into the defacto complainant's property at the southern boundary and a suit was filed by defacto complainant's grandfather in the year 1967 against first petitioner and her husband and it was found that the property was encroached upon and a decree for recovery of possession was also granted in favour of defacto complainant's grandfather. There was also demarcating survey stone in the property. 7. In the year 2003, petitioners again made an attempt to trespass into the property and they also cut and removed trees and second petitioner also removed the survey stone. Another complaint was filed in respect of removal of survey stone and police registered a case and a charge-sheet was also laid against second accused herein. It is also submitted that both the civil Crl.M.C.No.1123 of 2005 4 cases referred to by petitioner's counsel are dismissed by Munsiff Court. Annexure-D O.S.136 of 2003 was, in fact, withdrawn and thereafter petitioners filed O.S.108 of 2005 for the same relief and that was also dismissed. Two appeals were filed against decree in O.S.108/2005, 118/2003 and both the appeals were dismissed. Petitioners are in possession of the disputed property and there are documents to prove the same. 8. On hearing both sides and on going through the complaint Annexure-D, I find that a complaint was made by complainant to the effect that he has 2.04 Acres of land and the first accused is having a property on the southern side of his property. The accused allegedly cut and removed the trees, from the property of the defacto complainant. It is true that it is not in the complaint specified that the possession is with the complainant, but it is stated in clear and cogent terms that the complainant is having a property from where the trees are cut and removed. 9. There is an assertion in the complaint that the property belongs to the complainant and hence on a whole reading of the complaint, I find that it is not proper to quash the complaint only Crl.M.C.No.1123 of 2005 5 on the ground that the word 'possession' is not stated in the complaint. The fact whether there is possession or not is a matter of evidence, especially when there is an averment that the property belongs to complainant. If a person has title, ordinarily, possession also follows. Therefore, on the mere ground that averment regarding possession is not clearly mentioned in the complaint, I am not inclined to quash the complaint. 10. On hearing both sides, I find that there were several other litigations between the parties and petitioners could not point out a single instance where they obtained any decree or order from any court in his favour; except an interim injunction in a suit which was finally dismissed. But, the said interim injunction order was not granted in favour of petitioners, at the time when the offence is allegedly committed in this case. 11. Learned counsel for petitioners submitted that the first petitioner is an old lady and the second petitioner is also a woman and hence, an order may be passed to exempt petitioners from personal appearance in the matter. If a move is made to that effect before the Magistrate Court, the Magistrate may consider the same and dispose of the matter in accordance Crl.M.C.No.1123 of 2005 6 with law. But it is not proper to pass any such order by this court, usurping jurisdiction of trial court. In the result this petition is dismissed. K.HEMA, JUDGE cms