IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 1794 of 2009() ------------------------------ CRMP.3260/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .......... REVN. PETITIONER(S)/COMPLAINANT ---------------------------------------------------- V.K.SREENIVASAN, MANAGING DIRECTOR, VASCO RUBBER & TIRE COMPANY (P) LTD., REGD.OFFICE, KALLIYARA BUNGALOW, KALLIYARA ESTATE, PADINJARE MURI, MALAMPUZHA-I VILLAGE, PALAKKAD. BY ADV. SRI.T.N.HAREENDRAN RESPONDENT(S): ACCUSED ---------------------- 1. VASUDEVAN K.PANTHALAM, VAS PHARMASEUTICAL LTD., VYTTILA P.O., ERNAKULAM DISTRICT, COCHIN-19. 2. K.G.KURUVILA, S/O.GEORGE, KAYYALAKKAL HOUSE, KORAVANKONAM JUNCTION, THIRUVANANTHAPURAM. 3. PAPPACHI, POOKUNDU, ELAKKA, ANAKKAL, MALAMPUZHA, PALAKKAD. 4. K.M.RAVI, EALAKKAL ESTATE, ANAKKAL, MALAMPUZHA. 5. K.K.VELAYUDHAN, -DO- -DO- 6. PRAKASINI G.MENON, W/O.G.K.MENON, 108 S.P.MARG, THULASI PIPE LINE ROAD, MAHIM, BOMBAY. 7. JAYASREE NAIR, 108-S.P.MARG, DO. DO. 8. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R8 SRI.ANTONY C. ETTUKETTIL FOR R2 SRI.JESWIN P.VARGHESE FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1794 of 2009 -------------------------------------- Dated this the 10th day of July, 2009. ORDER This revision is in challenge of dismissal of a private complaint under Section 203 of the Code of Criminal Procedure (for short, “the Code”). 2. Petitioner filed a complaint against respondent Nos.1 to 7 for offences punishable under Sections 341, 452, 120(b), 395 and 506(ii) read with Section 34 of the Indian Penal Code (for short, “the IPC”) alleging that on 23.10.1998 about twenty persons led by respondents Nos.1 to 7 trespassed into his bunglow, dishonestly removed Rupees four lakhs kept in almirah and respondent No.1 shot down an alsation dog belonging to petitioner. Respondent Nos.1 to 7 criminally intimidated him by showing a revolver. Complaint was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure. After investigation police reported that it is a fabricated story and that no such incident had taken place. The report also said that there was dispute between the Kerala Forest Development Corporation and petitioner right from 20.10.1998 onwards concerning the building in question and the land and that there were civil cases pending between that Corporation and petitioner. Notice of refer report was given to the petitioner. Obviously, he did not prefer a protest complaint then. Learned magistrate accepted the refer report. Later petitioner filed a complaint alleging the very same offences. Sworn Crl.R.P.No.1794/2009 2 statement of the complainant was recorded. Learned magistrate took cognizance of the offences alleged in the complaint and issued process to respondent Nos.1 to 7. They challenged that order in this Court in Crl.M.C.No.825 of 2001 and connected cases. This Court as per order dated 28.11.2007 taking note of the contentions raised by respondent Nos. 1 to 7 including the dispute regarding the building and the land set aside the order issuing process to respondent Nos.1 to 7 and directed learned magistrate to reconsider the issue. Respondent Nos.1 to 7 were given an opportunity of hearing. Learned magistrate considered the issue and by the impugned order held that there is no sufficient ground to proceed and dismissed the complaint under Section 203 of the Code. Petitioner is aggrieved and has come up in revision. It is contended by learned counsel that this Court set aside the cognizance earlier taken by learned magistrate only for the limited purpose of enabling respondent Nos.1 to 7 to urge their contentions but respondent Nos.1 to 7 did not produce any document to show that petitioner had no right over the building and the land in question. According to the learned counsel, respondent Nos.1 to 7 having failed to do so, learned magistrate ought to have taken cognizance of the offences attributed to them. Crl.R.P.No.1794/2009 3 3. The present complaint can only be treated as a second complaint. What persuades me to hold so is that on the earlier complaint investigation by the police was ordered, a refer report was submitted and that report was accepted by the learned magistrate with notice to the petitioner. Therefore, the earlier complaint stands concluded in that way. The present complaint can therefore, be taken only as a second complaint but, alleging the very same incident which has already been found to be a fabricated story and which report has already been accepted by the learned magistrate. No doubt, a second complaint can be maintained but not, without producing fresh materials which were not brought to the notice of the court at the time the earlier complaint was disposed of. This Court has held so in Parameswaran Nair v. Surendran (2009 (1) KLT 794). In this case what is done by the petitioner is only to repeat whatever he had alleged in the first complaint which ended in refer report and its acceptance by the learned magistrate. That report has to be given due weight unless it is shown that the investigation was tardy . In this case, no attempt was made by the petitioner to show before acceptance of the refer report that investigation conducted by the police was not proper or that any material which ought to have been taken into account has not been looked into. It is in Crl.R.P.No.1794/2009 4 the light of that, learned magistrate has refused to take cognizance against respondent Nos.1 to 7. I do not find any illegality, irregularity or impropriety in the order requiring interference. Resultantly this revision petition is dismissed. THOMAS P.JOSEPH, Judge. cks