IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH NOVEMBER, 2011 / 25TH KARTHIKA, 1933 Crl.L.P..No. 991 of 2011 ------------------------------- (AGAINST THE JUDGMENT DTD.30.10.2009 IN CC.NO.21/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM) .................... PETITIONER/COMPLAINANT: ------------------------------------------ VISWANATHAN, S/O.PIRUNGAN, AGED 58 YEARS, MALEKUZHIYIL THAMASIKUM, KOTTARATHIL HOUSE, KUNNAMANGALAM AMSOM DESOM. BY ADV. SRI.NIRMAL. S RESPONDENTS(S)/ACCUSED: ---------------------------------------- 1. DINESAN, S/O.GOPALAN, AGED 45 YEARS, THUVASSERY HOUSE, NELLICODE AMSOM DESOM, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.R.SUDHISH FOR R1 BY ADV. SMT.M.MANJU FOR R1 BY ADV. SRI.K.R.RANJITH FOR R1 BY PUBLIC PROSECUTOR SMT.T.Y.LAIZA FOR R2. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 991 of 2011 ---------------------------------------- Dated this the 16th day of November, 2011 O R D E R The petitioner herein is the complainant in C.C.No.21/2008 on the file of the court of Judicial First Class Magistrate, Kunnamangalam and he proposes to file an appeal against the judgment dated 30.10.2009 of the trial court by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C., who faced the charge for the offences punishable under Sections 447 and 427 of I.P.C. and hence the petitioner seeks special leave under Section 378(4) of the Cr.P.C. in this petition. 2. The case of the complainant is that he had obtained 5 cents of property in Sy.No.163/1, Re-Sy.No.129/2 of Nellikode Village by sale deed No.4661 dated 27.9.2007 Chevayoor SRO from one Premanandan and thereafter, the complainant has been in enjoyment of the said property as the lawful title holder, having in possession and enjoyment over the same. According to him, he obtained a CRL.A.NO.991 of 2011 :-2-: building permit and plan from the Kozhikode Corporation for the purpose of constructing a residential building therein and as part of the construction of the residential building, according to him, he had taken trench for constructing compound wall. On 24.11.2007, at about 8.30 a.m., when granite bricks were brought and trying to unload in the construction site, the accused herein obstructed the same. According to the complainant, the Police came on the scene and as per their direction, the lorry carrying granite was returned. According to the complainant, though the Sub Inspector of Police assured of taking action against the accused, no action was taken. So, the complainant approached the court below by filing CMP No.5362 of 2007 under Section 190(1) of the Cr.P.C. alleging the offences of criminal mischief to the tune of Rs.1000/- and criminal trespass and thus, to prosecute the accused for the offences punishable under Sections 447,448 and 427 of I.P.C. On the appearance of the accused, he denied the charge. Consequently, the trial was proceeded and PWs.1 to 4 were examined and Exts.P1 to P7 were marked. The trial CRL.A.NO.991 of 2011 :-3-: court finally concluded that in order to prove the trespass, possession has to be proved and for that purpose, PWs.3 and 4 were examined, but there is no evidence adduced in relation to the overt act of criminal trespass committed by the accused. It is also found that regarding the criminal trespass, there is no direct evidence. According to the learned Magistrate, the complainant/PW1 had only hearsay evidence. The credit worthiness of PW2, according to the learned Magistrate, is at stake. Thus, the learned magistrate has finally held that the complainant has miserably failed to prove the allegation and accordingly, the accused was found not guilty and consequently, he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the petitioner seeks leave of this Court under Section 378(4) of the Cr.P.C. 3. I have heard Sri.S.Nirmal, learned counsel appearing for the petitioner and I have also perused the judgment of the trial court. 4. Learned counsel for the petitioner vehemently submitted that CRL.A.NO.991 of 2011 :-4-: the documents produced by the complainant show that he is in absolute ownership and possession and enjoyment of the property covered by Ext.P2 sale deed. According to the learned counsel, the finding of the learned Magistrate about the pendency of civil dispute is absolutely baseless and not supported by any evidence. According to the learned counsel, the complainant has adduced evidence in support of his allegations against the accused and though the learned Magistrate has positively found that inference can be drawn regarding the alleged commission of offence, but acquitted the accused without assigning any proper and valid reason. It is also pointed out that though the learned Magistrate has held that PW2 is not creditworthy, no explanation is given to discredit his version. Thus, according to the learned counsel, in case an appeal is entertained, there is every possibility to interfere with the above findings of the court below and therefore, the petitioner is entitled to get leave as sought for in this petition. 5. I have carefully considered the arguments advanced by the CRL.A.NO.991 of 2011 :-5-: learned counsel for the petitioner and gone through the judgment of the trial court and the findings recorded therein. In the light of the arguments advanced by the counsel for the petitioner and in view of the findings of the court below, based upon the materials referred to therein, the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused under Section 255 (1) of Cr.P.C. 6. On a perusal of the judgment, it can be seen that Ext.P1 is the certified copy of the sale deed and Ext.P2 is the sale deed executed in favour of the complainant. Ext.P3 is the tax receipt and Ext.P4 is the possession certificate issued to the Village Officer, Nellikode Village and Exts.P5 and P6 are respectively the building permit and approved plan issued by the Kozhikode Corporation. When PW1 was examined, he had deposed in terms of his allegation in the complaint. The learned Magistrate has found that PW2 is an interested witness and from the deposition of PW2, it could be inferred that on realising CRL.A.NO.991 of 2011 :-6-: the existence of a civil dispute, it is the Police who directed the driver of the lorry carrying granite bricks to retreat from the scene. In paragraph 7 of the judgment sought to be impugned, it can be seen that the learned Magistrate has found that during the cross- examination of PW1, the defence had succeeded in bringing out the fact that soon after the prior title holder of the property had given an advertisement in the Mathrubhumi daily newspaper and the rival claimant has also made an advertisement regarding the same property. It is on the basis of the above facts, the trial court has found that there exists a civil dispute and the learned Magistrate has further found that the court below is not competent to decide the claim of the parties and it can be settled only in the civil court. It is also discernible from the judgment of the court below that the defence has got an argument that the property belongs to the deceased younger brother of the accused and younger brother of the accused had lodged a complaint before the Police. It is also borne out from the records that even according to the case of the complainant, it was one Tamilian had refilled the CRL.A.NO.991 of 2011 :-7-: trench by earth and the person, who witnessed the same, was not examined. It is relevant to note that in the complaint, there is only one accused and the evidence particularly that of PW1 is only hearsay and he had no direct knowledge regarding the incident. The said Tamilian is not made as a co-accused in the complaint. The above defect as far as the criminal case is concerned is very vital, which is sufficient to cut root of the very prosecution case. It is also relevant to note that there is no allegation of criminal conspiracy, or that the alleged overt act of the said Tamilian was in pursuance of a common intention shared by the accused. Thus, going by the reasoning assigned by the learned Magistrate, it appears to me that the same are convincing and based upon the materials and evidence on record. In the absence of the person, who is responsible for the overt act of the alleged commission of offence and particularly in the absence of any allegation of conspiracy, the finding of the learned Magistrate that the complainant miserably failed to prove the case against the accused, cannot be found as perverse or illegal so as to interfere with the CRL.A.NO.991 of 2011 :-8-: consequent order of acquittal. The petitioner has no case that the learned Magistrate has overlooked any evidence available in favour of the complainant and against the accused. The purpose of examination of PW2 is to corroborate the evidence of PW1 who is the complainant. But, the complainant has no direct knowledge regarding the incident so alleged and therefore, even if the evidence of PW2 is accepted, there will not be any fruitful turnout so as to interfere with the finding and order of acquittal recorded by the trial court, especially when there is no overt act pleaded and proved against the accused and in the absence of the allegation of conspiracy of sharing of common intention. Therefore, according to me, there is no merit in this petition and accordingly, the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.A.NO.991 of 2011 :-9-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 CRL.A.NO.991 of 2011 :-10-: O R D E R Dated:2. ..2011