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