IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2356 of 2009 ------------------------------ CC.166/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... PETITIONER/DEFACTO COMPLAINANT: --------------------------------------------------- V.M.SANKARANARAYANAN NAMBOODIRI, S/O.NARAYANAN NAMBOODIRI, VARIKKASSERI MANA, PARUTHIPPILLI, PALAKKAD DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENTS/STATE & ACCUSED: ------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, OTTAPPALAM POLICE STATION. 3. JOY, S/O.JOSEPH, VADAKKEMURIYIL VEED, MANISSERI, OTTAPPALAM TALUK. 4. SASIKUMARAN NAIR,S/O.RAMAKRISHNAN PILLA, ANASWARA VEED, CHERPULASSERI. 5. P.KUMARAN, S/O.KUNJAN, ETHIRIPARAMBIL VEEDU, PLACHITHARA, VANIYAMKULAM, OTTAPALAM TALUK. 6. S.N.SIRAJ HUSAIN, S/O.SHAK NAHABUNJAN, ARCHANA NIVAS, NEAR KVR HIGH COURT, SHORNUR, OTTAPALAM TALUK. 7. S.CHANDRAMATHIYAMMA, W/O.RAVEENDRAN NAIR KAILAS NILAYAM, PERINAD, KOLLAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2356 of 2009 --------------------------------------- Dated this 23rd day of July 2009 ORDER Notice to respondent Nos.3 to 7 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent Nos. 1 and 2. 2. This revision is in challenge of judgment of learned Judicial First Class Magistrate, First Class, Ottapalam in C.C.No.166 of 2001 acquitting respondent Nos.3 to 7 of charges under sections 167, 447, 466, 468, 471, 474 and 120(B) of the Indian Penal Code (for short, “the Code”). Learned magistrate found that charges against respondent Nos.3 to 7 are not proved and acquitted them under section 248(1) of the Code of Criminal Procedure. Legality, regularity and propriety of that acquittal is challenged in this revision. According to the learned counsel, there was sufficient evidence to show that respondent Nos.3 to 7 committed offence punishable under section 447 of the Code. 3. According to the petitioner/defacto complainant, property in question belonged to him as per a Will. He alleged that claiming to be a lessee of the said property PW2 executed Exts.P4 and P5, assignment deeds in favour of respondent Nos.3 and 4 and on the strength of those fabricated documents, respondent Nos.3 and 4 issued tax receipts and other documents in favour of respondent Nos. Crl.R.No.2356 of 2009 2 3 and 4 to prop up their case of ownership and possession of the disputed property. So far as offences except under section 447 of the Code is concerned, it is not disputed that appropriate evidence was not produced by the prosecution. What remained for consideration is whether acquittal for the offence under section.447 of the Code is legal and proper. 4. It is contended by learned counsel that based on Exts.P4 and P5, respondent Nos.3 and 4 filed O.S.No.341 of 1998 seeking a decree for prohibitory injunction against the petitioner as if they are the absolute owners in possession of the disputed property. Petitioner made a counter claim in that suit claiming he is the absolute owner in possession of the property. Respondent Nos.3 and 4 also filed OS.No.554 of 2002 seeking a decree for realisation of damages. The suits were jointly tried and disposed of by a common judgment, Ext.P2 dated 05-10-2004. Suits filed by respondent Nos.3 and 4 were dismissed and the counter claim in O.S.No.341 of 1998 was decreed in favour of petitioner upholding his claim of ownership and possession of the disputed property. Learned counsel would contend that learned magistrate refused to look into Ext.P2 for the reason that challenging dismissal of the suits and the decree in the counter claim respondent Nos. 3 and 4 have preferred an appeal before the District court. Learned counsel contents that there is no stay in favour of respondent Crl.R.No.2356 of 2009 3 Nos. 3 and 4 in that appeal. 5. Ext.P2 shows that the suits were disposed of by the Civil Court on 05-10-2004. Complaint was preferred in the court below on 11-06-1999 alleging attempt to trespass into the disputed property on 15-12-1998. There is no case for petitioner as on the relevant dates there was any order of injunction from the Civil court restraining respondent Nos.3 and 4 from entering the property. Therefore it cannot be said that the alleged attempt of trespass on 15-12-1998 was in violation of any order of the court. 5. According to respondent Nos.3 and 4, they are in possession of the disputed property they having acquired title over it as per Exts.P4 and P5. They have also produced Exts.D1 and D2 to support their claim. The question whether those documents are genuine and conferred title or possession in favour of respondent Nos. 3 and 4 is a matter yet to be decided by the District court which has entertained the appeals. Ext.P2, judgment cannot therefore be said to be final. Ext.P2, judgment cannot also be used except to show that the civil cases were decided in favour of petitioner. Learned magistrate has observed that though petitioner claimed right over the property as per a partition deed, the Will based on which that partition deed was executed has not been produced or proved in the case. So far as fabrication of documents in favour of respondent Nos.3 and 4 is not Crl.R.No.2356 of 2009 4 proved, it cannot be said that their claim over the property based on Exts.P4 and P5 is not genuine. It has been held that a bonafide claim of right, however ill-founded it may be, is a good defence in an action for trespass under section 447 of the Code. In this case, it is not disputed that there was claims and counter claims regarding title and possession of the property between the parties based on registered documents and that dispute is pending before the District court. Therefore, I am unable to hold that there was any attempt on the part of the respondent Nos. 3 and 4 criminally trespass into the property as defined in section 441 of the Indian Penal Code. As such, interference with the acquittal is not warranted in revision. But I make it clear that the observations made herein will be confined to the disposal of this revision petition and will have no bearing on the respective claims made by the parties in the civil cases and which is pending consideration in the District court. With the above observation this revision petition is dismissed. THOMAS P JOSEPH, JUDGE Sbna/