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2009 DIGILAW 2193 (MAD)

K. Neelambal & Others v. Solaman Reddy

2009-07-08

ARUNA JAGADEESAN

body2009
Judgment :- This Criminal Original Petition is filed to quash the complaint in CC.No.64/2005 on the file of the Judicial Magistrate I, Chengalput. 2. The brief facts, which are necessary for the disposal of this Criminal Original Petition, are as follows:- The Petitioners herein are A1 to A12 and the complaint has been filed by the Respondent against them for the offences under Sectios 147, 447, 427 and 506(i) of IPC. The Petitioners 1 and 2 are the wife and husband and the Petitioners 3 to 12 are the natives of Thachur Village. According to the Respondent/complainant, he is the owner of the property to an extent of 30 cents in S.No.475/1A2 and he is in possession and enjoyment of the said property and using it as Kulathu Medu. On 1. 2005, at about 1.00 p.m. all the Petitioners trespassed into the said property of the Respondent and caused damage to the hayrick worth about Rs.3000/-and damage to the brick wall, causing loss to the tune of Rs.6,000/-. The said incident was witnessed by one Markpeter, Son of the Respondent, Arokiyasamy, the brothers son of the Respondent and one Chinnammal. The Respondent is said to have filed a suit in OS.No.74/2003 before the Sub Court, Maduranthagam, against the Revenue Officials and the Village President and in IA.No.423/2003 filed in the said suit, interim injunction is said to have been granted. 3. The Petitioners challenge the complaint on the grounds that the ingredients of offence of rioting and criminal intimidation are absent in the complaint and the Respondent is giving a criminal colour to the civil dispute and that the Respondent is not the owner of S.No.475/1A-2 of Budur Natham and on the hand, there is a pucca road to Sahaya Nagar through S.No.475/1A-2 and that the civil suit filed by the Respondent in OS.No.74/2003 only relates to S.No.475/1A1 and that there is nothing to show that he is the owner of the property comprised in S.No.475/1A2 and in the said facts and circumstances, the criminal proceedings should not be entertained, when it is found to be mala fide or otherwise an abuse of process of court. 4. 4. The learned counsel for the Petitioners would vehemently contend that the matter, which essentially involves the dispute of a civil nature, should not be allowed to be the subject matter of a criminal offence and in the present case, no case has been made out against the Petitioners, so as to held that they should face a criminal trial. The learned counsel relied on on the decision of the Honourable Supreme Court rendered in the case of Inder Mohan Gowswami and another Vs. State of Uttaranchal and others (2007-5-CTC-614) and contended that the criminal Prosecution should not be used as an instrument of harassment or for certain private vendetta or with an ulterior motive to pressurise the Petitioners to part with the property. 5. This court may, in exercise of its inherent power under Section 482 of Code of Criminal Procedure, interfere in categories of cases viz. proceedings relating to cognizable offence to prevent abuse of process of any court or otherwise to secure the ends of justice. However, the power should not be exercised sparingly and that too in the rarest of rare cases, as has been held by the Honourable Supreme Court in the case of State of Haryana and others Vs. Ch.Bhajan Lal and others (AIR-1992-SC-604). 6. In the case of The Janata Dal Vs. H.S.Chowdharay and others (AIR-1993-SC-892), it is held that it would not be proper for the High court to analyse the case of the complainant in the light of probabilities in order to determine as to whether the conviction should be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It is further held that it would be erroneous to assess the materials before it and conclude that the complaint cannot be proceeded with. 7. In the case of Dhanalakshmi Vs. R.Prasanna Kumar and others (AIR-1990-SC-494), it is held by the Honourable Supreme Court that when an information is lodged at the Police Station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and the evidence let in court, which decides the fate of the accused person. 8. Barring in mind the above said principles enunciated by the Honourable Supreme Court, now we have to analyse the facts in this case. 9. It is the material collected during the investigation and the evidence let in court, which decides the fate of the accused person. 8. Barring in mind the above said principles enunciated by the Honourable Supreme Court, now we have to analyse the facts in this case. 9. The allegation contained in the complaint is that the Respondent is the owner of the property in S.No.475/1A2 to an extent of 30 cents and he is in possession and enjoyment of the said property, by storing hayrick and constructed the compound wall with bricks and also put up a thatched shed in the property. According to the complainant, the incident took place on 1. 2005 at about 1.00 p.m. The Petitioners trespassed into the property of the complainant and caused damage to the hayrick worth about Rs.3000/- and also demolished the brick wall and dismantled the thatched shed, causing loss to the property of the complainant. It is alleged that the occurrence was witnessed by three persons and two of them are relatives of the complainant and one is an independent witness by name Chinnammal. It is also alleged that they have resisted the act committed by the Petitioners. 10. The aforesaid allegations prima facie fulfill the ingredients of the offence under Section 427, 147 and 447 of IPC. Undisputedly, the question, whether the Respondent is the owner of the property is essentially a civil dispute. The Respondent has got a decree in respect of S.No.475/1A1, whereas he claims that the survey number is wrongly mentioned in the decree. However, this court cannot embark upon an enquiry as to whether the claim of ownership made by the Respondent is proved, as it is a matter of evidence at the time of trial. This court, at this stage, would not embark upon appreciation of evidence. 11. For the purpose of establishing the trespass and the act of mischief, the complainant is required to show that the Petitioners with an criminal intention trespassed into the property, which is in possession and enjoyment of the Respondent committed acts as alleged. In the instant case, the complainant has alleged in the complaint that he was in possession of the property and the Petitioners have trespassed with an intention to cause damage and loss to the property. 12. The allegations made in the complaint thus disclose the cognizance offence justifying the initiation of criminal proceedings. In the instant case, the complainant has alleged in the complaint that he was in possession of the property and the Petitioners have trespassed with an intention to cause damage and loss to the property. 12. The allegations made in the complaint thus disclose the cognizance offence justifying the initiation of criminal proceedings. Whether the material already in existence and to be adduced in the course of the proceedings would be sufficient for holding the Petitioners guilty has to be considered only at the time of trial. There are prima facie materials showing the commission of crime by the Petitioners and that being so, an interference at the threshold with the FIR is not desirable. The acceptability of the material produced to fasten the culpability on the Petitioner is a matter of trial and therefore, it is not proper to quash the complaint at this stage. 13. For the reasons stated above, this Criminal Original Petition is dismissed.