SANKARAN Vs. JOS

JUDGEMENT

(1.) This petition under S.561A Cr. P. C., is to quash the proceedings in calendar case 1382 of 1964 pending before the Second Class Magistrate, Trichur. Petitioner is the accused in the case. The case against him is under S.448 I. P. C., for having trespassed into the upstair portion of a building called Ratna Vilas which the respondent claims to be in his possession under one V. K. Raman Menon. The respondent alleges that the upstair portion has been let out to him by one Sri V. K. Raman Menon, that he bad locked it up and that the petitioner broke open the lock and when objection was raised by the respondent's agent he was intimidated and chased away.

(2.) The petitioner alleged that the building belongs to his thavazhi, that by a registered document of the year 1951 the members of the thavazhi agreed to partition the property, that till the partition was over, the grandmother of the petitioner was to manage and at the time of occurrence his mother being the senior most lady is in actual possession and management. It is further alleged that even though Sri. V. K. Raman Menon has a share he could not have rented out the building to anybody else. The written statement filed by Sri. Raman Menon has been produced for reference. On a scrutiny of the written statement it is seen that Sri V. K. Raman Menon has denied even the claim of the petitioner and his mother to maintain the suit. All those are matters which will have to be decided in the suit with which we are not very much concerned for the present. The petitioner does not say whether the upstair portion, in fact, has been let out to the respondent and whether possession has, in fact, passed to the respondent That is a matter which the criminal court would have to decide on the evidence adduced in the case. The learned Magistrate would also have to decide whether even if the entry is found to be true, whether it was done in the exercise of bona fide claim of right. I do not want to say anything about the merits of the case, lest it might prejudice either of the parties. Merely because there is a civil case in respect of this building is no reason to hold that the complaint is not maintainable, that it does not disclose a criminal offence and its prolongation is an abuse of the process of the court.

(3.) Learned counsel referred to the decision in Chiranjilal v. Raja Ram Singh AIR 1964 Raj. 267, but that has no application to the facts of this case. That was a case of a criminal complaint by one partner against some of the other partners, and the Court found that an offence under S.406 would not lie even if the facts alleged are proved and that it is not the function of the criminal court to go into the accounts of the partnership and determine the share of each of the partners and the proper remedy for the complainant was to have filed a suit for dissolution of partnership and rendition of accounts.