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Kunhikannan Master vs The State Of Kerala on 19 October, 2009

Kerala High Court
Kunhikannan Master vs The State Of Kerala on 19 October, 2009
       

  

  

 
 
  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

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