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2006 DIGILAW 700 (MAD)

N. M. Kullan v. K. Ramakrishnan

2006-03-13

K.N.BASHA

body2006
Judgment : Per K. N. BASHA, J. 1. This is an appeal against the acquittal filed by the appellant challenging the judgment of acquittal passed by the learned Judicial Magistrate, Kothagiri, in C.C. No. 27 of 1996 dated 11.2.1998 acquitting the accused for the offence under Sections 447, 379 and 427 I.P.C. 2. The case arising out of a private complaint filed by the complainant against the three accused is that he was owning a land of 30 cents at Naduthatty Village and he was in possession of the said land for the last 43 years and there were Karpoora and Seegai trees planted in that land. It is alleged by the complainant that during the year 1993 April, all the three accused cut and removed the trees from his land and as a result, he suffered a loss at Rs. 40,000/-. Thereafter, during September 1995, the accused 1 to 3 once again removed the trees from the land of the complainant and committed theft. On 26.9.1995, the complainant sent a report to the Forest Ranger through telegram but the Forest Ranger has not concerned with the same and as a result, he sent a telegraphic report to the District Collector on 28.9.1995. He also sent a petition on 13.10.1995 to Kothagiri Sub-Inspector and Deputy Superintendent of Police, Coonoor on 18.10.1995. The Sub-Inspector of Police, Kothagiri referred the matter as a civil dispute. Thereafter, the complainant filed the present private complaint in this case stating that he has suffered a loss of Rs.1,50,000/-. 3. The complainant, in order to prove his case, examined four witnesses. The complainant himself was examined as P.W.1 and he has stated the allegations against the accused 1 to 3 as narrated above. The complainant-P.W.1 also stated further that his steps to compromise the matter proved futile. Exhibit P-1 is the Assistant Settlement Officers notarised copy regarding ownership of the land. Exhibit P-2 is the Chittas notarised copy. Exhibit P-3 is the Field Map Certificate. On 26.9.1995, the complainant has sent a petition by way of telegram to the Forest Ranger and the telegram receipt is marked as Exhibit P-4. The complainant has sent a petition through telegram to the District Collector on 29.9.1995 and the same is marked as Exhibit P-5 but P.W.1 has not received any reply for the petition. On 26.9.1995, the complainant has sent a petition by way of telegram to the Forest Ranger and the telegram receipt is marked as Exhibit P-4. The complainant has sent a petition through telegram to the District Collector on 29.9.1995 and the same is marked as Exhibit P-5 but P.W.1 has not received any reply for the petition. P.W.1 also sent the written reports to Kothagiri Police Station Sub-Inspector, Deputy Superintendent of Police and Superintendent of Police under Exhibit P-6. He has received the acknowledgment from the Sub-Inspector of Police under Exhibit P-7. From the Superintendent of Police, he has received the acknowledgment under Exhibit P-8. From the Deputy Superintendent of Police he has received the acknowledgment under Exhibit P-9. P.W.1 also claimed that he has sent a legal notice to all the three accused under Exhibit P-10 and the accused receiving the notice not chosen to send any reply. The legal notice sent to the first accused returned unserved and the return cover is marked as Exhibit P-11. Exhibit P-12 is the acknowledgment for the service of notice to A2. Exhibit P-13 is the postal acknowledgment for the service of notice to A3. P.W.1 alsosent a notice under the Certificate of Posting under Exhibit P-14. A1 has sent a reply under Exhibit P-15. Exhibit P-16 is the further reply sent to the counsel for A1 and the postal acknowledgment for sending the notice is Exhibit P-17. A2 has also sent a reply under Exhibit P-18. A3 has not chosen to send any reply to the legal notice issued by the complainant. 4. P.W.2 stated that he knows the complainant as well as the accused 1 to 3. He has further stated that Survey No. 564/1 belongs to the complainant and one Raman sent Rs. 30,000/- through him to the complainant for the purpose of removing the trees. But P.W.2 stated that he has not received the amount Rs. 30,000/- from the said Raman and he has instructed him to go and give him directly. 5. P.W.3 also claimed that he knows the accused as well as the complainant. He has stated that one year prior to the occurrence, A3 gave him Rs. 34,000/-to give it to the complainant, but he has refused to receive the same. 6. P.W.4 has stated that one year prior to the occurrence that one Nanjan and Raman requested him to take the amount of Rs. He has stated that one year prior to the occurrence, A3 gave him Rs. 34,000/-to give it to the complainant, but he has refused to receive the same. 6. P.W.4 has stated that one year prior to the occurrence that one Nanjan and Raman requested him to take the amount of Rs. 34,000/- and to give it to the complainant, but he has refused to oblige their request. 7. When the accused was questioned under Section 313 Cr.P.C., in respect of the incriminating materials which appeared against them, all the accused have denied their complicity and stated that they have been falsely implicated in this case. 8. Heard the learned counsel for the appellant and the learned counsel for the respondents. 9. Learned counsel for the appellant submitted that the complainant has proved his case by adducing evidence of P.Ws. 2 to 4 and also by marking the relevant documents Exhibits P-1 to P-18. He has also contended that the evidence of P.Ws. 1 to 4 are clear, cogent and consistent and there is no infirmity in their evidence. 10. Learned counsel for the appellant has contended that there is no contradiction with regard to the material particulars in the evidence of P.Ws. 1, 2 and 4. He has also contended that by producing the relevant records, the complainant has proved his right over the disputed property and therefore, the complainant has proved his case in all aspects. 11. On the other hand, N. Duraisamy learned counsel appointed as Legal Aid Counsel for the respondent-accused 1 to 3 has contended that the learned Judicial Magistrate has given categorical reasons for acquitting the accused 1 to 3. He has further submitted that the complainant has miserably failed to establish his exclusive right over the disputed property and he has not even come forward with a definite version in respect of the disputed property and therefore, the entire case of the complainant should be rejected. 12. I have carefully considered the rival submissions put forward by either side. 13. The learned Magistrate, on consideration of the entire evidence adduced by the complainant, has come to the conclusion that the complainant has not proved his case beyond reasonable doubt and acquitted all the accused in this case. Being aggrieved against the judgment of acquittal, the present appeal has been preferred by the complainant. 14. 13. The learned Magistrate, on consideration of the entire evidence adduced by the complainant, has come to the conclusion that the complainant has not proved his case beyond reasonable doubt and acquitted all the accused in this case. Being aggrieved against the judgment of acquittal, the present appeal has been preferred by the complainant. 14. Learned Magistrate has observed that the complainant is an educated person as he is running a tutorial in the name and style of M.K. Tutorials. Learned Magistrate further found that P.W.1 has admitted that the land in Survey No. 564/1 is a joint patta but at the same time, P.W.1 has claimed that he is only having right over the property and as such, the learned Magistrate has given a finding that the evidence is self-contradictory. The other reason given by the learned Magistrate for acquitting the accused is that P.W.1 has stated in his evidence that the land is in Survey No. 564/1, but in the complaint, he has mentioned it as Survey No. 664/1 which raises serious doubt about the version of the prosecution case. Learned Magistrate has also held that P.W.1 has admitted that the grandfather of the complainant, both himself as well as the accused, were brothers. Therefore, the Magistrate has held that even the accused 1 to 3 are also having the right over the property under Survey No. 564/1. Yet another reason given by the Magistrate is that though P.W.1 claimed that the occurrence has taken place on 18.9.1995, he has not given a report immediately to the Police. The learned Magistrate has given another reason that P.W.1 has categorically admitted that one Venkat, who is an advocate, is responsible for the dispute but he has not chosen to examine the said evidence and such non-examination of Venkat is fatal to the prosecution case. Learned Magistrate has also placed reliance on the evidence of P.Ws. 2, 3, 4 and 5 to the effect that the disputed property is coming under the joint patta. Learned Magistrate further held that since the accused are also having a right over the property under dispute, even assuming that the accused removed the trees, it cannot be said that they have committed the offence of theft. Therefore, the learned Magistrate rejecting the case of the complainant, acquitted the accused 1 to 3, the respondents herein. 15. Learned Magistrate further held that since the accused are also having a right over the property under dispute, even assuming that the accused removed the trees, it cannot be said that they have committed the offence of theft. Therefore, the learned Magistrate rejecting the case of the complainant, acquitted the accused 1 to 3, the respondents herein. 15. The reasons given by the learned Magistrate on a perusal of the evidence on record clearly shows that they are based on materials available on record. As rightly pointed out by the learned Magistrate, the complainant has not come forward with clear and definite version. The complainant has miserably failed to prove that he is having the exclusive right over the property under dispute. The learned Magistrate has rightly placed reliance on the specific admission of the complainant P.W.1 that the disputed land comes under the joint patta. The inordinate and unexplained delay in giving the report also throws considerable doubt about the complicity of the accused. The perusal of the records also clearly show that the complainant has miserably failed to produce any documents to substantiate his contention that he is having the absolute and exclusive right over the disputed property from where the trees are said to have been removed by the accused 1 to 3. Therefore, the reasons given by the learned Magistrate cannot be said to be based not on materials available on record or the learned Magistrate has overlooked any evidence or misread the evidence, warranting the interference of this Court in the order of acquittal. 16. Therefore, for the reasons stated above, the criminal appeal is dismissed.