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Velleri Moosa vs Nottanveedan Ayisha Beevi on 29 September, 2008

Kerala High Court
Velleri Moosa vs Nottanveedan Ayisha Beevi on 29 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 642 of 2001()



1. VELLERI MOOSA
                      ...  Petitioner

                        Vs

1. NOTTANVEEDAN AYISHA BEEVI
                       ...       Respondent

                For Petitioner  :SRI.K.M.SATHYANATHA MENON

                For Respondent  :SRI.K.P.MUJEEB

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :29/09/2008

 O R D E R
                              THOMAS P. JOSEPH, J.

                             --------------------------------------
                               Crl.R.P. No.642 of 2001
                             --------------------------------------
                   Dated this the 29th day of September, 2008.

                                          ORDER

Respondents 1 to 3 and counsel remained absent. Heard counsel

for revision petitioner and the Public Prosecutor.

2. Case of revision petitioner is that he owned 4.85 acres of plantation

in R.S.No.6/1 of Vettilappara Village. Adjacent property on the south belonged

to first respondent. Second respondent is the husband of first respondent. Third

respondent is their worker. It is alleged that as per instruction of respondents 1

and 2, third respondent set fire to the plantation in the property of revision

petitioner on 2.2.1996 at about 11 a.m. causing loss of about Rs.7 lakhs to the

revision petitioner. Police registered a case as Crime No.33 of 1996 in respect of

the incident but referred it. Aggrieved, revision petitioner filed a private complaint

in the court below against respondents 1 to 3 alleging offences punishable under

Sections 435 and 109 read with Section 34 of Indian Penal Code. Case was

taken on file as C.C.No.140 of 1998. Court below recorded the sworn statement

of revision petitioner and his witnesses but found that no prima facie case is

made out against respondents 1 to 3 and discharged them under Section 245(1)

of Code of Criminal Procedure which is called in question in this proceedings.

Learned counsel submitted that revision petitioner has made out a case which if

unrebutted would warrant conviction and therefore court below was not justified

in discharging respondents 1 to 3.

Crl.R.P.No.642/2001

2

4. PWs 1 and 2, apart from stating about the incident in the property

of revision petitioner did not say anything regarding the alleged involvement of

respondents 1 to 3. According to PW2, second respondent had given him

Rs.2,000/- since fire had spread into his property as well. PWs 3 and 4 claimed

that they witnessed the alleged incident. According to PW3, third respondent set

fire on the eastern portion of the plantation belonging to first respondent, fire

spread into the plantation of revision petitioner also and caused loss. He stated

that fire was carried into the plantation of revision petitioner in the wind. PW4

however, stated that respondent 1 and 3 trespassed into the plantation of

revision petitioner and set fire at 11 a.m. on the day of incident.

5. Though PW3 has no case that third respondent was present at the

spot and it is also not his case that respondents 1 and 3 trespassed into the

plantation of revision petitioner and set fire, PW4 stated that respondents 1 and

3 trespassed into the plantation of revision petitioner and set fire. This material

discrepancy was taken note of by the court below. Learned Chief Judicial

Magistrate also observed from Ext.D1, copy of plaint preferred by revision

petitioner for recovery of damages consequent to the loss caused to him that in

Ext.D1 what is stated is that respondents 1 to 3 set fire in the plantation of first

respondent, left the place, fire spread into the plantation of revision petitioner

and caused damage. So, going by Ext.D1 it is not a case of any of

respondents trespassing into the plantation of revision petitioner and instead,

their allegedly setting fire in the plantation belonging to first respondent which

Crl.R.P.No.642/2001

3

spread to the plantation of revision petitioner also. Learned Chief Judicial

Magistrate observed that materials on record are not sufficient to say that it was

with any intention or with knowledge that the act is likely to cause damage to

revision petitioner that respondents 1 to 3 allegedly set fire in the plantation

belonging to the first respondent.

6. Even going by Ext.D1, copy of plaint preferred by revision petitioner

it is difficult to say that respondents 1 to 3 intended to cause damage to revision

petitioner. It is unlikely that they thought of setting fire to their own plantation

and inviting loss, with the intention or even knowledge of fire spreading into the

plantation of revision petitioner and causing loss. Assuming that the act of

respondents 1 to 3 was negligent, that did not attract the offence punishable

under Section 435 of Indian Penal Code. For the loss if any caused to revision

petitioner, he has already gone before the civil court. In the facts and

circumstances I do not consider it necessary to disturb the finding of learned

Chief Judicial Magistrate that no prima facie case was made out against

respondents 1 to 3.

Revision Petition is therefore, dismissed.

THOMAS P.JOSEPH,
JUDGE.

cks

Crl.R.P.No.642/2001

4

Thomas P.Joseph, J.

Crl.R.P.No.642 of 2001

ORDER

29th September, 2008

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