Research › Search › Judgment

Kerala High Court · body

2012 DIGILAW 698 (KER)

Rev. T. I. James v. South India Corporation

2012-07-24

P.S.GOPINATHAN

body2012
JUDGMENT P.S. Gopinathan, J. 1. This is a petition preferred under Section 482 of the Code of Criminal Procedure by the accused in C.C.No.101 of 2006 on the file of the Chief Judicial Magistrate, Ernakulam, seeking an order to quash Annexure-A13 complaint filed by the first respondent basing upon which the learned Magistrate took cognizance for offences under Sections 447, 457 and 427 read with 34 of the Indian Penal Code against the petitioners. 2. The brief facts leading to the prosecution are as follows: A building bearing door No.40/1890 of the Corporation of Cochin was in the possession of the first respondent as a lessee ever since 1942. C.S.I. Immanuel Church, Broadway, Ernakulam of which the petitioners are the Vicar and Secretary respectively, later acquired ownership over the above building. The first respondent attorned to the petitioners, continued as a lessee and had been duly paying the agreed rent. There was a petition as RCP No.179 of 1970 before the Rent Control Court, Ernakulam seeking an order of eviction. The petitioners were not successful before the Rent Controller. In appeal as well as in RCRP 129 of 1976 the petitioners were not successful. Since there was some attempt to interfere with the right of the first respondent, a suit as O.S.400 of 1970 was filed by the first respondent against the petitioners and obtained a decree in favour of the first respondent. According to the first respondent, the above said building was used as office and was having furniture and other valuable materials worth rupees three lakhs inside the building. In the night between 6.8.2004 and 7.8.2004, the petitioners, in furtherance of their common intention along with the church and the Bishop of the Diocese, Shornoor, criminally trespassed into the building by break opening the lock, stolen away the furniture and other items belonging to the first respondent and using poclaine or other earth moving machineries razed the leasehold premises causing heavy and irreparable loss to the first respondent. With these allegations Annexure-A13 complaint was filed against the Church, the petitioners herein and against the Bishop of CSI North Kerala Diocese, Shornoor, alleging offences under Sections 442, 446, 451, 456, 427, 379 and 120B read with 34 of the Indian Penal Code. With these allegations Annexure-A13 complaint was filed against the Church, the petitioners herein and against the Bishop of CSI North Kerala Diocese, Shornoor, alleging offences under Sections 442, 446, 451, 456, 427, 379 and 120B read with 34 of the Indian Penal Code. The learned Magistrate after recording the statement of the first respondent and completing other requisite procedures, took cognizance for offences under Sections 447, 427, 457 and 379 read with 34 of the Indian Penal Code, and issued process as against petitioners herein, who were arrayed as accused 2 and 3 in the complaint. No cognizance was taken against 1st and 4th accused in the complaint. It is assailing the above order taking cognizance and issuing process to the petitioners, this petition is filed. 3. The plea of the petitioners is that the building was not occupied and left abandoned for years and that was in a dilapidated condition and noticing that building was dilapidated, Corporation of Cochin, on 5.8.2004, served Annexure-A8 notice on the petitioners calling upon them to demolish the building within seven days after the receipt of the notice. Upon receipt of Annexure-A8, intimation was given to the first respondent on the next day by Annexure-A9 notice sent by registered post intimating that the building would be demolished immediately and that the first respondent would not have any right to make any objection and that the tenancy right was ceased to be in operation and that the demolition was bonafide and legal and that there was no trespass and that since there was no article or furniture belonging to the first respondent in the premises there was no theft and therefore, the petitioners had not committed any offence and that without taking all these aspects the court below had taken cognizance against the petitioners on Annexure-A13 complaint. With these pleadings the petitioners sought for quashing Annexure- A13 complaint. 4. I have heard Sri.T.M.Abdul Latiff, the learned counsel appearing for the petitioners and Sri.P.Martin Jose, the learned counsel appearing for the first respondent, besides the learned Government Pleader. The petitioners had also produced a copy of the judgment in O.S.513 of 2004 on the file of the IInd Additional Sub Judge, Ernakulam filed by the first respondent against the petitioners and others with a request to mark the same as Annexure-A14. That petition was allowed. The document was also accepted. 5. The petitioners had also produced a copy of the judgment in O.S.513 of 2004 on the file of the IInd Additional Sub Judge, Ernakulam filed by the first respondent against the petitioners and others with a request to mark the same as Annexure-A14. That petition was allowed. The document was also accepted. 5. Basing upon Annexure-A14, the learned counsel for the petitioners would contend that Annexure-A14 suit was filed by the first respondent seeking a declaration against petitioners and others that the lease in respect of the building mentioned above continued to subsist and also seeking a decree for mandatory injunction to put the first respondent in possession of the plaint schedule properties and for recovery of rupees four lakhs as damages and that the civil court has declined the relief. Therefore, in the light of Annexure- A14 also, according to the learned counsel for the petitioners, the prosecution would not lie. 6. The fact that the first respondent was a lessee of the building mentioned above and that it was razed to the ground during the night between 6.8.2004 and 7.8.2004 by the petitioners are admitted. The question is whether petitioners are justified in doing so. According to the petitioners, it is a lawful action done by the petitioners in pursuance to Annexure-A8 notice and that even without a notice to the first respondent, the leasehold building was liable to be demolished as it was in a dilapidated condition and that it could be done even if any proceedings for eviction is pending between the landlord and the tenant before any forum. So, according to the learned counsel for the petitioners, there was no trespass and no mischief and since there was no article belonging to the first respondent in the leasehold building there was no theft. Neither, there was any common intention to commit any offence nor any criminal conspiracy and in the light of Annexure-14, their action is justified. 7. I have carefully gone through Annexure-A14 judgment. The fact that the first respondent was a lessee and he had paid rent up to the date of demolition is found by the civil court. But the learned Subordinate Judge found fault with the first respondent for producing no document to show that the first respondent was occupying the building or that there was any article belonging to the first respondent available in the complaint. But the learned Subordinate Judge found fault with the first respondent for producing no document to show that the first respondent was occupying the building or that there was any article belonging to the first respondent available in the complaint. It appears that some photographs of the building were produced before the civil court as document to support the plea of petitioners that the building was in a dilapidated condition, ceased to occupy and there was no article belonging to the first respondent. The civil court have not discussed the evidence in Annexure-A14 judgment regarding the availability of the articles mentioned in the complaint. It had non suited the first respondent by concluding that in the light of the decision in Regunath v. Thiruvalla Municipality (2004(3) KLT 75), Sunder Raj v. Corporation of Cochin (2001(1) KLT 536) and Vannathankandy Ibrayi v. Kunhabdulla Hajee (JT 2001(1)SC 96) that even a notice to the tenant is not required since the action was taken in pursuance to the notice issued by the local authority as the building was dilapidated and that even during the pendency of a rent control petition, the building can be demolished and that when the leasehold is completely destroyed, the tenant can no longer use it and thus the tenancy does not exist. The civil court has not in fact gone into the question whether the building was dilapidated warranting demolition even without notice to the tenant and in utter disregard to the right of the tenant. Only if the building was dilapidated, the notice to demolish and the consequent actions could be justified. If the building was dilapidated, the petitioners are liable to be prosecuted. Therefore, whether the building was dilapidated or not is matter of evidence in the criminal case and it can no way be substituted by the judgment in civil case. In this view Annexure-A14 is not relevant, especially because the question whether the building was dilapidated or not was not specifically found in Annexure-A14. The civil court blindly accepted Annexure- A8. In the nature of the pleading the first respondent can impeach the same in the criminal case. 8. I have carefully examined the documents produced and the pleadings to see whether the action of the petitioners in dismantling the leasehold is bonafide. The civil court blindly accepted Annexure- A8. In the nature of the pleading the first respondent can impeach the same in the criminal case. 8. I have carefully examined the documents produced and the pleadings to see whether the action of the petitioners in dismantling the leasehold is bonafide. Annexure-A8 would show that the notice which is dated 5.8.2004 was issued on behalf of the Secretary, Corporation of Cochin under Sections 426 and 433 of the Kerala Municipality Act calling upon the first petitioner to demolish the building within seven days with a plea that there is a report dated 3.8.2004 stating that the building was so dilapidated that it might fall down at any time causing threat to the public life and property and therefore, the building is to be demolished within seven days and unless, the first respondent alone would be responsible for such loss and damages. Admittedly Annexure-A8 was issued without hearing the first respondent who is also an affected party. Therefore, the first respondent can resist the demand to demolish by establishing that the building was not dilapidated. Annexure-A9 would show that the first petitioner caused a registered notice to the first respondent on the basis of Anneure-A8 intimating that the building was in a very dilapidated and dangerous condition and about to fall at any moment and that building was not used or occupied for the last 30 years and was abandoned by the first respondent. It was further informed that in compliance with the direction issued by the Corporation of Cochin, the said building would be demolished immediately and that the first respondent would have no right to make any objection regarding the same and the tenancy would cease to operate. It is stated that the said notice was despatched to the first respondent by registered post on 6.8.2004. Without waiting for serving the notice, the building was razed to ground on the very same night. The facts stated earlier would show that the first respondent preferred RCP 170 of 1970 before the Rent Control Court and it was dismissed and the matter was taken up to the revisional court in 1976. The first respondent obtained a prohibitory decree in O.S.No.400 of 1970. There was no default in payment of rent. The payment of rent was up to date. The first respondent obtained a prohibitory decree in O.S.No.400 of 1970. There was no default in payment of rent. The payment of rent was up to date. If the statement in Annexure-A9 is correct the building was abandoned and ceased to occupy since 1974. Suffice to say that that it is a statement without an iota of truth. What was the nature of damages in the building had also not revealed out. In the event the building was abandoned and ceased to occupy from 1974 and that it was in a dilapidated condition, in the normal course, the petitioners, who had failed in their first attempt to evict the first respondent would have spared no time to seek for an order of eviction because both the grounds stated in Annexure-A9 are independently and jointly amount to a ground for eviction. Therefore, I find that no credibility can be given to the statement in Annexure-A8 or A9 regarding the condition of the building or the cessation of occupation by the first respondent. In this view of the matter, the argument of the learned counsel for the first respondent that Annexure-A8 and A9 are part of conspiracy to justify the high handed action of the petitioners has got merit. With the materials on record, I cannot agree with the arguments advanced by the learned counsel for the petitioners that the leasehold building was ceased to occupy by the first respondent decades back. I do not omit to note that Annexure-A11 was produced by the petitioners to bring on record that there was arrears in remitting the electricity charges indicating non occupation. Annexure-A11 would show that more than a month after the demolition, the petitioners had remitted a sum of Rs.3,122/-. Referring to the date 16.1.2001 mentioned in the column relating to arrears, the learned counsel for the petitioners submitted that there was arrears in paying electricity charges and there was no electrical consumption indicating that the building was not occupied by the first respondent. Critically going through Annexure-A11, I cannot agree with the argument advanced by the learned counsel for the petitioners because Annexure-A11 would show that the monthly fixed charge was Rs.200/-. If that be so, the arrears for the fixed charges from 16.1.2001 itself would come to a huge amount. Critically going through Annexure-A11, I cannot agree with the argument advanced by the learned counsel for the petitioners because Annexure-A11 would show that the monthly fixed charge was Rs.200/-. If that be so, the arrears for the fixed charges from 16.1.2001 itself would come to a huge amount. Now it is pertinent to note that the building was raised to ground even without disconnecting the electricity or removing the meter installed by the Board. In the event Ext.A8 notice was a genuine one and there any bonafide on the side of the petitioners, they would have first disconnected the electricity before demolishing the building. The hurried manner in which the building was demolished itself speaks volumes about the motive of the petitioners. Annexure-A2 to A7 photographs would show that the building in dispute was a substantial building. It was razed to ground in the deadness of a single night and even the scrap was allegedly removed from the spot. Malafide intention is very evident. Therefore, I am not in a position to conclude that the building was not occupied by the first respondent or that no article belonging to the first respondent was inside the building. Learned counsel for the petitioner vehemently relied upon Annexure-A14 judgment and would argue that in the light of the judgment of the civil court, even if the petitioners demolished the building at a haste, the prosecution is not legally sustainable and no conviction can be entered against the petitioners. I had earlier mentioned that it is only a defence to be established. Whether the petitioners are liable to be convicted or not is not a matter to be decided in a petition under Section 482 of the Code of Criminal Procedure whereby the accused seeks an order to quash the complaint. The question that arises is whether there are materials pleaded to establish the offence alleged so as to proceed with the prosecution. For reasons stated, there is sufficient pleadings which is even admitted by the petitioners. The learned counsel for the petitioners canvassed my attention to the decision in Regunath v. Thiruvalla Municipality and Sunder Raj v. Corporation of Kochi (supra) and would contend that local authority was justified in issuing notice under Section 411 of the Kerala Municipality Act to demolish the building and it can be done even if landlord-tenant relationship is subsisting between the parties. The legal position covered by the above decision is not at all germane in this case. The only issue now arises is whether the petitioners are liable to be prosecuted in the light of Annexure-A14. As I mentioned earlier, in Annexure-A14, there is no discussion of the evidence adduced or there is any conclusive finding regarding the availability of the articles belonging to the petitioners in the leasehold building and the dilapidated condition. It was very vaguely concluded that the first respondent failed to produce material documents. On the same time the civil court failed to take note that in the normal course, while the tenant occupying the building and doing business all the relevant material documents, if any, to show that the building was occupied by the tenant would be in the building. There is a little chance for the tenant keeping away some document at some other place to show that the leasehold was in his occupation. Therefore, in Annexure-A14 there is no discussion of the evidence on record adduced in that case. There is no mention about the articles, which were alleged to have been stolen by the petitioners. In the above circumstance, I find that the prosecution cannot be interdicted in the light of Annexure-A14. 9. In K.G.Premshanker v. Inspector of Police and another (2002)8 SCC 87, it was held by the Apex Court at paragraph 30 as follows:- ..(4) If the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. Going by Sections 40 to 43 of the Evidence Act and Annexure-A14, I find that with reference to the above provisions of the Evidence Act Annexure-A14 is not relevant. In the affidavit accompanying the petition seeking for accepting the documents, there is no mention that Annexure-A14 is anyway relevant with reference to Sections 40 to 43 of the Evidence Act. But it is stated that in view of the civil court having found that the action done by the Corporation and the landlord are correct and lawful no criminal proceeding can be initiated against them. Such a plea is unsustainable. 10. But it is stated that in view of the civil court having found that the action done by the Corporation and the landlord are correct and lawful no criminal proceeding can be initiated against them. Such a plea is unsustainable. 10. In the decision in Syed Askarihadi Ali Augustine Imam and another v. State (Delhi Administration) and another (2009)5 SCC 528, the ruling in the Premshankar's case was followed. It was held in paragraph 21 that 'indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case and that the criminal proceedings will have primacy over the civil proceeding'. It was further held that 'axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court'. The ruling in Premshankar's case was also followed in Seth Ramdayal Jat v. Laxmi Prasad [(2009)11 SCC 545 ]. In Ramesh Dutt and others v. State of Punjab and others [(2009)15 SCC 429] at paragraph 18, it is held as follows: The provisions of Sections 41 to 44 of the Evidence Act, 1872 do not suggest that the decision of the civil court would be binding on the criminal courts". Therefore, on legal basis also the prosecution in pursuance to Annexure-A13 complaint is not liable to be interdicted in the light of Annexure-14 judgment. 11. The argument of the learned counsel for the petitioners is that the petitioners being the landlord they are not liable to be prosecuted for trespass as the landlord has a right to go to the property and see whether that it is properly and legally occupied by the tenant. That argument is good so long as the intention is good. But when the entry to the leasehold is with a motive of demolition and the leasehold is demolished such entry would be nothing but criminal trespass. I am not deeply going to the merit as it is to be decided by the trial court on merit after taking evidence. The question whether 12 items of the articles mentioned in the complaint belonging to the first respondent and worth rupees three lakhs were inside the shop building are all matters of evidence. I am not deeply going to the merit as it is to be decided by the trial court on merit after taking evidence. The question whether 12 items of the articles mentioned in the complaint belonging to the first respondent and worth rupees three lakhs were inside the shop building are all matters of evidence. Since the leasehold building itself was razed to the ground either the articles might have been removed or it would have been destroyed. If removed, there shall be an offence of theft and if destroyed there would be mischief. In the above circumstance, I find no merit in this petition. This petition is only an attempt to see somehow or other the petitioners could drag or escape the prosecution. The petition is devoid of merits. In the result, this petition is dismissed without prejudice to the defence of the petitioners. The learned Magistrate is directed to give top priority to the case as it is pretty old and to dispose of the case as expeditiously as possible, without being trammelled by any observation in this order. It is further clarified that the observations made above are with reference to the available documents and is not at all pertaining to the merit of the evidence, that is to be adduced.