KOUSALYA AMMA Vs. NARAYANKUTTY NAIR

JUDGEMENT

(1.) THIS Criminal Miscellaneous Case is filed by accused 1 to 7 in C.C. No. 913/2013 on the file of the Judicial First Class Magistrate Court -II, Palakkad to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

(2.) IT is alleged in the petition that the first petitioner is residing in her own property purchased from one 'Vellachi' as per Sale Deed No. 498/75 of Sub Registrar Office, Parali comprised in R. Sy. No. 238/5 of Parali -I village. She has been in possession and enjoyment of the same. She had constructed a house in the property and residing therein. Except the petitioners, nobody has got any right over the same. Petitioners 2 to 7 are the children of the first petitioner and the first respondent is having a property on the northern side of the petitioners' property. There were civil suits between the first petitioner and the first respondent regarding dispute on the northern boundary of the petitioners' property, which was demarcated in O.S. No. 612/2001 filed by the first respondent for mandatory injunction, partition and damages and O.S. No. 119/2002 was filed by the first petitioner seeking permanent prohibitory injunction. After considering the evidence on record, the Munsiff, Palakkad, by Annexure -A judgment decreed the suit filed by the first respondent in part and decreed the suit filed by the first petitioner and granted an injunction restraining the first respondent from trespassing into the petitioners' property. In the suit, O.S. No. 612/2001, the main contention of the first respondent was that there are two mango trees on the northern boundary of his property and the branches of the said trees are overhanging to his property causing damage to the property and protruding into the property and they are absorbing water and fertilizers from his property and so he is entitled to half right over the mango trees. The Munsiff Court did not accept the contention of the first respondent as such, but granted a decree for mandatory injunction in his favour for removing the overhanging branches of the said mango trees, which was not objected by the first petitioner also. Thereafter, the first respondent filed E.P. No. 19/2006 in O.S. No. 612/2001 before the Munsiff Court, Palakkad for enforcing the mandatory injunction, but the same could not be implemented or executed on account of non co -operation of the first respondent and as per Annexure -B order, the execution petition was dismissed. Thereafter, the first respondent again filed another suit as O.S. No. 342/2012 before the Munsiff Court, Palakkad reiterating the same relief claimed by him and decided as per Annexure -A judgment and that is pending and Annexure -C is the copy of the plaint in O.S. No. 342/2012 filed by the first respondent. Since he could not succeed in his attempt, in order to harass the petitioners, the first respondent filed Annexure -D complaint as C.M.P. No. 1403/2010 before the Munsiff Court -II, Palakkad alleging offences under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code and the same was forwarded to the police for investigation by the learned Magistrate under Section 156(3) of the Code and on receipt of the same, Crime No. 165/2010 of Mankara police station was registered against the petitioners alleging offences under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code. The gist of the prosecution case in that crime was that the petitioners, on 17.8.2009, wrongfully restrained the first respondent and cut and removed a mango tree from his property worth Rs. 20,000/ - and threatened him with deadly weapons, if he intended to prevent the petitioners from cutting the mango tree, he will be killed and thereby they have committed the above said offences. The police after conducting investigation, filed Annexure -E refer report stating that the allegations are false and no offence has been committed by the petitioners. Thereafter, the first respondent filed Annexure -F protest complaint as C.M.P. No. 4693/2010 before the Judicial First Class Magistrate Court -II, Palakkad and after enquiry, the learned Magistrate has taken cognizance of the case as C.C. No. 913/2013 under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code against the petitioners and issued summons to the petitioners to appear before the court. According to the petitioners, it was a false case and no offence under Section 379 of the Indian Penal Code can be attracted as the civil court has found that the mango tree belongs to the first petitioner and overhanging branches were directed to be cut and removed as per Annexure -A judgment in the suit, O.S. No. 612/2001, filed by the first respondent and his claim over the mango tree was rejected as well. So, the lower court should not have proceeded with the case and should have dismissed the complaint as it is a civil remedy. So, the petitioners have no other remedy except to approach this Court seeking the following relief::

(3.) THE learned counsel for the petitioners submitted that the first respondent is now claiming right over the mango tree in respect of which, he filed O.S. No. 612/2001 before the Munsiff Court, Palakkad, which was disposed of by that court along with O.S. No. 119/2002 filed by the first petitioner against the first respondent holding that the first respondent has no right over the mango trees, but granted a decree for mandatory injunction in his favour directing the first petitioner to cut and remove the overhanging branches of the mango tree into the property of the first respondent and also granted a decree of permanent prohibitory injunction in favour of the first petitioner against the first respondent restraining him from trespassing into the property of the first petitioner and in the execution petition filed by him, though the petitioners were prepared to cut and remove the branches, on account of the non co -operation of the first respondent, the same could not be carried out and so the execution petition was dismissed. Further, police has conducted investigation on the basis of the private complaint filed by the first respondent and came to the conclusion that it was a false case and referred the same and it is thereafter that he filed a protest complaint and on the basis of which, cognizance was taken by the learned Magistrate and issued process to the petitioners alleging offences under Sections 379, 341 and 506(ii) of the Indian Penal Code. The learned counsel for the petitioners further submitted that the first respondent also filed another suit as O.S. No. 342/2012 claiming the same relief before the Munsiff Court, Palakkad and that is pending and before deciding the issue regarding the title of the mango trees, it cannot be said that the petitioners have committed the offence punishable under Section 379 of the Indian Penal Code. So, continuance of the civil prosecution is nothing but an abuse of process of court and the same is liable to be quashed.