Research › Search › Judgment

Kerala High Court · body

2006 DIGILAW 713 (KER)

Thankamma Johnson v. State Of Kerala

2006-10-18

R.BASANT

body2006
Judgment :- 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, 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 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 accused contended that the shed which was allegedly demolished was always in his possession and there was no 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 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. 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 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 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. 10. With the above observations, this revision petition is dismissed.