IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1828 of 2005()
1. JOY GEORGE, S/O.GEORGE,
... Petitioner
Vs
1. JUSTIC THOMAS, S/O.THOMAS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.M.J.THOMAS
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :31/03/2009
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.1828 OF 2005
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DATED THIS THE 31st DAY OF MARCH, 2009
O R D E R
The petitioner herein is the first accused in Crime
No.341/2004 of Erattupetta Police Station alleging offence under
Section 420 read with Section 34 of IPC. The prayer in this
petition filed under Section 482 of Cr.P.C. is to quash Annexures
A, B and C. Annexure-A is the private complaint filed by the first
respondent herein against the petitioner and two other accused
alleging offence under Section 420 read with Section 34 of IPC.
Annexure-B is the copy of the FIR in that case. Annexure-C is
the copy of the final report filed by the police after investigation
of the case. Pending this petition, the case was taken cognizance
by the learned Magistrate and is pending before the Court of
J.F.C.M., Erattupeta as C.C.No.85/05. The further proceedings in
that case stand stayed by this Court.
2. Heard the learned counsel appearing for the petitioner
and for first respondent. Heard the learned Public Prosecutor
also.
CRL.M.C.No.1828/05 -2-
3. It is submitted by the learned counsel appearing for the
petitioner that there are no sufficient averments in Annexure A
complaint to attract the offence under Section 420 of IPC as against
the petitioner. It is also submitted by the learned counsel that the
transaction between the petitioner and the first respondent is purely
civil in nature and the petitioner has filed a civil suit before the
Munsiff’s Court, Erattupetta for declaration of his title to the property
in question and for a decree for permanent prohibitory injunction,
restraining the first respondent herein from trespassing into the
property. It is also submitted by the learned counsel that the said suit,
O.S.No.43/03 of the Munsiff’s Court, Erattupetta was decreed in favour
of the petitioner herein. Subsequently, the first respondent/defendant
in the suit preferred appeal, A.S.No.72/04 before Sub Court, Pala,
which was re-numbered as A.S.No.254/07 before the District Court,
Kottayam and the same was dismissed for default by the learned
District Judge, Kottayam as per judgment dated 25.10.2007.
4. The argument advanced by the learned counsel for the
petitioner regarding the pendency of the civil suit and the appeal are
not disputed by the learned counsel for the first respondent. It is
submitted by the learned counsel for the first respondent that a
CRL.M.C.No.1828/05 -3-
petition is filed before the District Court, Kottayam to restore the
appeal, which is pending.
5. Considering the facts in dispute and the circumstances of
the case, I find that the disputed facts can be decided by the learned
Magistrate after considering the evidence to be adduced on the
prosecution side and also on the side of the defence, if any. It is the
duty of the trial court and this Court cannot enter into any finding on
those aspects. The power under Section 482 of Cr.P.C. can be
exercised only sparingly and with caution. In these circumstances, I
find no ground to quash Annexures A, B and C and this petition is liable
to be dismissed.
In the result, the Crl.M.C. is dismissed. Both parties can raise
their contentions before the J.F.C.M’s. Court, Erattupetta.
M.C.HARI RANI, JUDGE.
dsn