IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1278 of 2009()
1. KUNHIKANNAN MASTER,S/O.CHATHU,
... Petitioner
2. VINOD @ VINODKUMAR,S/O.KUNHANDI,
Vs
1. THE STATE OF KERALA,
... Respondent
2. KUNHIKRISHNA KURUP,S/O.KANNAN NAMBIAR,
For Petitioner :SRI.C.R.SIVAKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :19/10/2009
O R D E R
C.T. RAVIKUMAR, J.
---------------------------------------------
CRL.M.C. NO. 1278 OF 2009
---------------------------------------------
Dated this the19th day of October, 2009
ORDER
Petitioners are accused C.C.No. 107/06 on the file of the
Judicial First Class Magistrate Court, Vatakara. They are facing
indictment under Sections 406 and 506(1) read with 34 I.P.C.
2. The 2nd respondent-defacto complainant earlier filed a
complaint before that court and it was forwarded to the 1st
respondent for investigation under Section 156(3) of the Cr.P.C.
However, that was referred after investigation stating that the
matter is of civil nature. Subsequently, he filed a protest complaint
and the learned Magistrate took cognizance on the complaint, under
Section 406 and 506(1) of the I.P.C. Cognizance of offence under
Section 420 was not taken. The case of the prosecution is that the
second respondent who is a lessee had sub-leased the premises
Door.No.30/891 of Vatakara Municipality to the petitioners for
conducting a parallel college. An agreement was entered into
between them on 24.4.99 (Annexure-A3). It is alleged that the
building and the furniture thereto were handed over to the
Crl.M.C.No.1278 of 2009 2
petitioners. According to the second respondent, the petitioners
had committed default in payment of rent and consequently he was
constrained to pay rent arrears from his pocket to the land lord.
The lis in regard to the same was later amicably settled and the
petitioners had agreed to pay an amount of Rs.55,000/- on such
conciliation. However, they retreated from the same and
consequently, they were ousted from the said premises. It is the
further case of the second respondent that while vacating the said
premises, they took the furniture entrusted with them and taken
them to the newly started parallel college by name ‘ New Sagar Arts
College’. When the second respondent enquired about the same
and demanded return of the furniture and the other monitory
benefits he was threatened with life. It was with these allegations
that he filed Annexure -2 complaint.
3. The petitioners herein however refuted the entire
allegations raised in Annexure 2 complaint. According to them, at
no point of time, the second respondent issued any notice
demanding arrears of rent due under the sub-lease arrangements.
According to the petitioners, it is only to cover up the said lacuna
that now Annexure- 4 document has been fabricated and according
to the petitioners, it is undated and unsigned by any of the parties.
Crl.M.C.No.1278 of 2009 3
That apart, it is contended that the dates of occurence of incidence
are not specifically mentioned in Annexure -2 complaint. In short, it
is the contention of the petitioners that even if the entire allegations
are taken as correct, they would constitute only a dispute of civil
nature and did not constitute the offences as alleged by the second
respondent. Therefore the Annexures 2 complaint and 5 charge
sheet are liable to be quashed, it is contended.
4. It can be seen that there is an averment that benches,
desks, tables and Almira required for the conduct of a college were
entrusted with the petitioners by the second respondent. Further it
is alleged in the complaint that those furniture were taken away by
the petitioners without the permission of the second respondent
while vacating the premises and witnesses who had actually seen
them removing these furniture from the premises in question are
also available and it is the case of the second respondent that they
are in the newly started college of the petitioners viz., `New Sagar
Arts College’. There is also another allegation in the complaint that
pursuant to conciliation, the petitioners have agreed to pay an
amount of Rs.55,000/- to the second respondent. However, they
did not actually give the said amount which is legally due to him
and when demanded for the same they threatened to kill him.
Crl.M.C.No.1278 of 2009 4
5. It is the settled position of law that the sufficiency or
otherwise of the evidence need not be looked into by this court in a
petition under Section 482 of the Cr.P.C. This court can look into
the aspect as to whether the allegations incorporated in the
complaint satisfies the ingredients so as to attract the offence
alleged against the accused. Prima facie, the allegations are there.
Therefore, this court cannot now interfere with the proceedings
initiated based on the allegations incorporated in the Annexure-2
complaint and bring about abrupt termination proceedings based on
Annexures 2 and 5. Therefore, the above Crl.M.C is liable to fail.
At the same time the petitioners are at liberty to raise the plea of
discharge at the appropriate stage if that stage is not crossed by
now, before the court below. Needless to say that if such a plea is
raised the court below shall consider the same before proceeding
further if that stage is not crossed as noticed earlier.
Subject to this, the above Crl.M.C is dismissed.
(C.T. RAVIKUMAR)
JUDGE
spc