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2016 DIGILAW 4162 (MAD)

Petchi Muthu v. P. Gurusamy

2016-12-15

P.KALAIYARASAN

body2016
ORDER : This criminal original petition has been filed under Section 482 of Cr.P.C., praying to call for the records relating to C.C. No. 211 of 2009 on the file of the Judicial Magistrate, Rajapalayam and to quash the same. 2. It is averred in the petition that the respondent/defacto complainant is the President of Sri Muthuramalinga Thevar Ninaivu Valibar Sangam. The above Sangam is having a property adjacent to the first petitioner's property. There is a dispute with respect to the wall in between the two properties. The northern wall of the respondent/defacto complainant is a common wall and the roof of the first petitioner building is resting on that wall. The defacto complainant also filed civil suit in O.S.No.266 of 2009. The defacto complainant preferred a private complaint before the Judicial Magistrate alleging that the petitioners trespassed into the property and damaged the northern side wall of the Sangam's building. The respondent has filed the private complaint only to gain in the civil suit. The private complaint is vague and the Judicial Magistrate ought not to have taken cognizance and issued summons to the petitioners. Therefore, the proceeding in C.C.No.211 of 2009 on the file of the Judicial Magistrate, Rajapalayam, is to be quashed. 3. Despite notice, the respondent has not appeared. 4. The learned counsel for the petitioners contends that the respondent/defacto complainant, having filed the civil suit as against the first petitioner, has also filed the private complaint only to gain in the civil suit. The copy of documents filed in the typed set disclose that the defacto complainant filed the civil suit as against the first petitioner. In the civil suit, the first petitioner filed Commissioner application and Advocate Commissioner was also appointed. The defacto complainant traces title to his property therein that the land in S.No.325/3 was given to the respondent Sangam by the Sethur Jamin orally. The Advocate Commissioner, in his report, clearly says that there is no gap between the wall and the first petitioner's property. The learned counsel for the petitioners submits that the above suit filed by the defacto complainant has also been dismissed. Therefore, the dispute between the defacto complainant and the first petitioner is purely civil in nature. No doubt, on the criminal original petition filed by the first respondent, this Court directed him to move the Judicial Magistrate as per law. The learned counsel for the petitioners submits that the above suit filed by the defacto complainant has also been dismissed. Therefore, the dispute between the defacto complainant and the first petitioner is purely civil in nature. No doubt, on the criminal original petition filed by the first respondent, this Court directed him to move the Judicial Magistrate as per law. The Judicial Magistrate, after recording sworn statements of witnesses, took cognizance of the offences under Sections 147, 148 and 427 of I.P.C. 5. This Court carefully perused the order of the Judicial Magistrate taking cognizance of the above offences. 6. The occurrence is said to have been taken place on 19.05.2009 at 09.00 p.m. Suit was filed by the defacto complainant on 26.05.2009. It is seen from the complaint that only on 29.05.2009, the complaint was sent to the Superintendent of Police. Even before the Judicial Magistrate, except the defacto complainant, all other witnesses stated that the petitioners damaged the wall in dispute. Only the defacto complainant has stated that the petitioners came with deadly weapons. Therefore, it is clear that the civil dispute has been converted into a criminal case and it is only afterthought and clear abuse of process of law. Therefore, the proceedings in C.C.No.211 of 2009 on the file of the Judicial Magistrate, Rajapalayam is liable to be set aside. 7. Accordingly, the proceedings in C.C. No. 211 of 2009 on the file of the Judicial Magistrate, Rajapalayam against the petitioners are quashed. This criminal original petition is allowed. Consequently, connected miscellaneous petitions are closed.