High Court Kerala High Court

Thankamma Johnson vs State Of Kerala on 18 October, 2006

Kerala High Court
Thankamma Johnson vs State Of Kerala on 18 October, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3440 of 2006()


1. THANKAMMA JOHNSON,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. THOMAS, S/O.LUKOSE, VARIKKOLIL VEEDU,

                For Petitioner  :SRI.P.B.SURESH KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :18/10/2006

 O R D E R
                                 R. BASANT, J.
                         - - - - - - - - - - - - - - - - - - - -
                        Crl.R.P.No.  3440  of   2006
                         -  - - - -  - - - - - - - - - - - - - - -
                Dated this the 18th  day of   October, 2006


                                     O R D E R

This revision petition is filed by the defacto complainant

against a judgment of acquittal in a prosecution under Sections 447

and 427 I.P.C. Investigation commenced on the basis of Ext.P1 F.I.

statement lodged by PW4, the defacto complainant, on 28.7.2000.

The investigation culminated by the final report submitted by the

police.

2. The accused pleaded not guilty. Thereupon the

prosecution examined PWs. 1 to 5 and proved Exts.P1 to P3. The

accused denied the prosecution case. He examined himself as DW1

and the Manager of his Bank as DW2. Exts.D1 to D4 were marked.

3. PW4 claimed that she is the landlady in respect of a

premises leased to the accused. According to her, the portion leased

did not include a shed with a sloping roof at the rear of the building

leased. It is her contention that the accused, on 21.7.2000,

Crl.R.P.No. 3440 of 2006 2

criminally trespassed into the said sloping shed, which was allegedly in the

possession of PW4. He allegedly indulged in acts of mischief to demolish

and reconstruct the said shed. By such action of his, the accused had

committed the offence punishable under Sections 447 and 427 I.P.C., it was

alleged. PW4 is the landlady. PW2 is a neighbour of PW4, who

accompanied PW4 to the premises on 21.7.2000. PW1 was examined as a

person who had allegedly witnessed the occurrence. He turned hostile to

the prosecution. PW5 is an attester to Ext.P3 scene mahazar. PW3, Head

Constable, had registered Ext.P2 F.I.R. on the basis of Ext.P1 F.I.

statement. Ext.P3 scene mahazar was also proved through him.

4. The accused took up a contention that the portion leased to him

included the shed with sloping roof at the rear of the building. He

particularly relied on Ext.D1, copy of an agreement, under which the

parties had agreed to enter into a lease arrangement of the building

including the shed with sloping roof at the rear. Ext.D2 was proved and it

is under Ext.D2 that the actual entrustment was done in pursuance of

Ext.D1 agreement. The accused contended that the shed which was

allegedly demolished was always in his possession and there was no

Crl.R.P.No. 3440 of 2006 3

question of his trespassing into the said shed. He further contended that the

landlady had not undertaken prompt repairs. The sloping shed at the rear

was hence in a precarious condition. The rent deed permitted him to

undertake repairs if the landlady does not do prompt repairs, with the

consent of the landlady. He contended that the landlady had given her

consent. His purpose was only to properly repair the building and the same

could not be held to amount to any mischief. He asserted that the landlady

had consented to such repairs by him. But, according to him, later there

was a quarrel/dispute about the expenses incurred for undertaking such

repairs and the landlady had foisted this false complaint against the accused

because of such disagreement. At any rate, there was no question of any

criminal trespass or mischief, contended the accused, who was a practicing

Lawyer of that locality.

5. The learned Magistrate, on an anxious consideration of all the

relevant inputs, took note of the fact that Ext.D1 eloquently conveys that

the building, which was agreed to be leased, included the sloping roof shed

at the rear. The court further took note of the fact that going by the building

number in Ext.D2 also the shed at the rear must be held to have been

Crl.R.P.No. 3440 of 2006 4

entrusted to the accused. The court further took note of the fact that there is

nothing to indicate the actual possession of PW4 of the sloping roof shed.

In these circumstances, the court found that the substratum of the

prosecution case is lost and the accused is entitled for an acquittal.

Accordingly the court below proceeded to pass the impugned judgment of

acquittal.

6. The learned counsel for the petitioner contends that the learned

Magistrate went perverse in coming to the conclusion that the shed at the

rear was in the possession of the accused. According to him, though

Exts.D1 and D2 are not disputed, Ext.D2 must show that there was no

specific inclusion of the shed at the rear of the building entrusted under

Ext.D2. I find no merit whatsoever in this contention. Ext.D2 shows that

the building having a particular number is leased to the accused. The shed

at the rear admittedly had no separate number. Ext.D2 was admittedly

preceded by Ext.D1 and Ext.D1 specifically speaks of the agreement to

entrust the shed at the rear also. I do further note that there is no specific or

tangible evidence to show that PW4 was keeping possession of this shed at

the rear of the building leased to the accused. In these circumstances, I am

Crl.R.P.No. 3440 of 2006 5

satisfied that the finding that the said shed was in the possession of the

accused does not warrant interference at this 2nd tier of criminal litigation

invoking the revisional jurisdiction of superintendence and correction.

7. I must alertly remind myself of the nature, quality and contours of

the jurisdiction of this court sitting as a court of revision considering the

challenge against a judgment of acquittal founded on findings of fact.

8. The learned counsel for the petitioner contends that even if the

charge under section 447 were to be held to be unsustainable on account of

the dispute regarding possession, the conduct of the accused even as a

tenant demolishing portion of the premises of the landlady must be held to

be amount to an offence punishable under Section 427 I.P.C. On this

aspect I note that primarily the attempt of the accused was only to repair the

building and renovate the same and not to cause any loss to the building as

such. Further, I take note of the reasons followed by the learned

Magistrate. The alleged incident of destruction took place on 21.7.2000.

Even though the landlady had allegedly reached the scene of occurrence on

that day itself, there significantly was no written complaint till 28.7.2000. I

find merit in the conclusion of the court below that from 21.7.2000 to

Crl.R.P.No. 3440 of 2006 6

28.7.2000 no complaint was at all filed and that is a circumstance in tandem

with the case of the accused that there was consent in accordance with the

terms of Ext.D2 to carry out the repairs and on account of subsequent

unpleasant incidents a complaint was sought to be filed on 28.7.2000. That

approach made by the court below does also appear to me to be reasonable

and not at

any rate sufficient to persuade this court to invoke the revisional

jurisdiction against the impugned judgment of acquittal.

9. In any view of the matter, I am satisfied that the impugned

judgment of acquittal does not warrant any interference. I may hasten to

observe that I have not intended to express any final opinion on the dispute

between the parties about the possession of the shed in question or

alteration done to the said building. I only take note of the fact that the case

of the prosecution has not been established beyond doubt as required in a

prosecution for a criminal offence. The findings by the trial court or this

court in this revision petition will not in any way affect or fetter the rights

of the petitioner to raise and substantiate appropriate contentions before the

civil court.

Crl.R.P.No. 3440 of 2006 7

10. With the above observations, this revision petition is dismissed.

(R. BASANT)
Judge

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