MANJULA SHASHIDHARAN Vs. MANIKANDADAS

JUDGEMENT

(1.) The above Crl.M.C. under section 482 of the Code of Criminal Procedure is filed to quash Annexure A1 complaint and all further proceedings in CC No.890 of 2013 on the file of the Judicial First Class Magistrate Court, Varkala, instituted on the basis of a private complaint preferred by the first respondent alleging offences under sections 379 and 506(2) of the Indian Penal Code. The petitioners, husband, wife and two children were arrayed as accused on the basis of the private complaint of the first respondent before the Judicial First Class Magistrate Court, Varkala as CMP No.486 of 2012, in which the learned Magistrate took cognizance and issued summons to the accused. The gist of Annexure A1 complaint is that the first respondent's brother by name Santhosh Kumar, has filed OS No.14 of 2012 before the Munsiff Court, Varkala, against the first petitioner and the revenue and survey authorities for fixation of the boundary of his property and that, after urgent notice was issued by the said court on 17.01.2012, the petitioner and their men trespassed into the property belonging to Santhosh Kumar, cut and removed the trees standing on his property worth Rs.50,000/- and intimidated the first respondent and his brother Vijayan when they reached the property in question. The petitioner submits that Annexure A1 complaint do not make out any offence as alleged and the same is an abuse of the process of law. The averments in the complaint itself establishes that the matter is purely civil in nature. It is also stated that there were several proceedings initiated against the petitioners directly and indirectly at the instigation of the first respondent, the details of which are given below:-

(2.) The petitioners alleged that the enmity started when the first petitioner purchased 39.750 cents of land in Survey No.2600 of Kadakkavoor Village in an auction sale conducted by the revenue authorities. The said property originally belonging to Vijayan, who is the brother of the first respondent, was put to revenue sale on account of the sales tax dues. The sale certificate is on record as Annexure A4. It is further stated that ever since the sales confirmation and handing over the possession of the property, the petitioner is in absolute ownership and enjoyment of the said property and thereafter, the petitioners and their family has been harassed by the litigations aforementioned by the said Vijayan along with his brothers, Santhosh Kumar and Manikanda Das, who is the first respondent herein. As stated earlier, the above Criminal M.C. is filed for quashing on the ground that Annexure A1 does not constitute a prima facie case or commission of any offence under sections 379 and 506(2) of the IPC, since the issue of trespass and the ownership of the property are pending determination before the competent civil court and the complaint is maliciously instituted. It is also submitted that almost identical allegations were made when one Bineesh Babu filed a criminal complaint as CMP No.606 of 2012 before the Judicial First Class Magistrate Court, Varkala, arraying the petitioners as well as the revenue officials as accused and the said complaint was rejected by the Magistrate Court without taking cognizance, against which Bineesh Babu had filed a revision petition as Crl.R.P.No.1173 of 2014 before this Court and the same was dismissed by judgment dated 11.8.2014 marked as Annexure A11. It is submitted that the present complaint is identical to one that led to Annexure A11 judgment. It is on these grounds that the above quashment petition is filed.

(3.) The learned counsel for the first respondent submitted that the first respondent attempted to trespass into the property of Santhosh Kumar, which resulted in filing OS No.14 of 2012 before the Munsiff's Court, Varkala, seeking for a decree for fixation of boundary. Along with the said suit, IA No.151 of 2012 was filed for temporary injunction restraining the first petitioner and her men from trespassing upon the property of Santhosh Kumar. The trial court issued urgent notice on 12.01.2012 and was posted to 19.01.2012 for return of notice and it was in between i.e., on 17.01.2012, the petitioners trespassed into the property and committed the acts as mentioned above. It is in that background that Annexure A1 complaint was filed. It is his further submission that trees were cut, became timber and the same is capable of being stolen as it is a movable property. He also relies on the judgment of the Honourable Supreme Court in Kanwar Pal Singh v. State of Uttar Pradesh [2020 (14) SCC 331] for the proposition and Neeharika Infrastructure Pvt.Ltd. (M/s) v. State of Maharashtra and others (AIR 2021 SC 1918) to contend that the truth of the allegations made in the complaint can only be established by a full fledged trial, and therefore, the petition seeking to quash Annexure A1 complaint ought to be dismissed.