M.M. Mathew v. The State of Kerala and Santhanpara Police Station and P.V. George Tharakan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943** **CRL.MC NO. 2747 OF 2019** **CC 509/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDOM** ## **PETITIONER/ACCUSED:** **M.M.MATHEW AGED 59 YEARS S/O. MATHAI, MYLADIATHU HOUSE, ANAKKARAKARA, ANAKKARA VILLAGE, UDUMBANCHOLA TALUK.** **BY ADV. A.SHAFEEK (KAYAMKULAM)** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031** - **2 THE SUB INSPECTOR OF POLICE, SANTHANPARA POLICE STATION, IDUKKI DISTRICT – 685 619** - **3 P.V. GEORGE THARAKAN, S/O. VARKEY THARAKAN, MANGALAMUTTATHU PARAYIL EZHUPUNNAKARA, EZHUPUNNA VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT – 688 537** **R1 & R2 BY SMT. C.SEENA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.10.2021, THE COURT ON 26.11.2021 PASSED THE FOLLOWING:** Crl.M.C.No.2747 OF 2019 2 ## **ORDER** This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to quash all further proceedings in C.C. No. 509/2017 pending before the Judicial First Class Magistrate's Court, Nedumkandam. 2. Crime No. 504/2014 of Santhanpara police station was registered on the basis of Annexure A complaint preferred by the third respondent alleging offences punishable under Sections 447, 188 and 379 of the Indian Penal Code against three persons. In the complaint, it was alleged that he is the owner of 3.83 acres of cardamom plantation in Survey No. 222/3 of Attupara Thavalam. He is a resident of Ezhupunna in Cherthala taluk, that his brotherin-law Scaria Alexander is looking after the said property. He is in exclusive possession and enjoyment of 3.83 acres of land. The first accused i.e., the petitioner is the owner of 16 acres of land adjacent to the 3.83 acres. The second accused is the supervisor and the third accused is an employee under the first accused. When the first accused had raised untenable claims over the property, he filed a suit before the Sub Court, Kattappana as O.S. No. 240/2010. By Crl.M.C.No.2747 OF 2019 3 judgment dated 16.07.2014 that suit was decreed restraining the first accused from entering into the plaint schedule property. But on 03.09.2014, in violation of the decree of injunction, the accused persons, along with four identifiable persons trespassed into his property and committed theft of 750 kgms of cardamom and transported it in a jeep. The said crime was witnessed by his brother-in-law, Scaria Alexander and one Ansari. Immediately, he was informed and he rushed to the place and found himself convinced that the allegations were correct. Due to the theft committed by the accused he suffered a loss of Rs. 80,000/-. 3. That crime was forwarded to the police for registering a crime and investigation and thus Crime No. 504/2014 of Santhanpara police station was registered and after investigation charge sheet was laid as aforesaid and now the case is pending as C.C. No. 509/2017 before the Judicial First Class Magistrate Court, Nedumkandam. The petitioner contends that he is the sole accused in the case. According to him, allegations against him are absolutely false, the final report was laid without conducting proper investigation and scrutinising documents. It is true that the third respondent, i.e., the defacto complainant was the owner of the said Crl.M.C.No.2747 OF 2019 4 3.83 acres of leasehold land along with 16.96 acres of patta land. In 2005, he sold the above 3.83 acres to one Thomas Joseph and Sherly Thomas. But as there existed a general ban in transferring of leasehold land, the sale could not be registered in the name of said Thomas Joseph and Sherly Thomas. But all rights including possession was transferred by the third respondent to Thomas Joseph and Sherly Thomas in 2005 itself which is evident from Annexure 3 agreement. On 23.04.2009, petitioner purchased the above 16.96 acres of land along with leasehold right over 3.83 acres of land from Thomas Joseph and Sherly Thomas and from that day onwards, he is in exclusive possession and enjoyment of the property. It is true that Annexure 5 judgment was passed by the Sub Court in favour of the third respondent, rejecting the counter claim raised by him. But Annexure 6 would suggest that the Assistant Cardamom Settlement Officer, Kumaly had issued a proceedings on 21.06.2012 in his favour which would indicate that he is in possession of the property. He had preferred an appeal against Annexure 5 judgment before the District Court, Thodupuzha. By Annexure 7 judgment, the District Court has reversed the finding in Annexure 5, thereby O.S. No. 240/2010 was Crl.M.C.No.2747 OF 2019 5 dismissed and the counter claim advanced by the petitioner was allowed. Accordingly, the plaintiff in O.S. No. 240/2010, the complainant stands restrained by a permanent prohibitory injunction from trespassing into the property and dispossessing the petitioner forcibly from the property. 4. According to the petitioner, in the light of these developments, the final report is liable to be quashed. 5. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. 6. According to the learned counsel, his possession has been found by the appellate court. He had purchased the property, 3.83 along with adjacent property for Rs. 90 lakhs. It may be true that there was dispute between the third respondent and prior owner of the petitioner i.e., Thomas Joseph. But his possession stands confirmed. He is cultivating cardamom in the property; moreover, even though it was alleged that so much cardamom was thieved by him, no effective investigation was conducted, nothing was recovered from his possession. 7. On enquiry from the Registry, it appears that RSA is pending before this Court as R.S.A. No. 277/2017 against Crl.M.C.No.2747 OF 2019 6 Annexure 7 judgment. But no stay of proceedings has been ordered in that case. 8. From the sequence of events brought out through Annexures 1 to 7, it is clear that the third respondent had preferred a complaint immediately after rendering Annexure 5 judgment by the Sub Court granting an injunction against the petitioner and in favour of the third respondent, who was the plaintiff. But the appellate court reversed that finding and found the petitioner in possession of the property and granted an injunction in his favour. In a suit for injunction, the most vital question is who is in possession of the property. It appears that the petitioner could bring in materials to prove his possession, that has been confirmed by the District Court in Annexure 7 judgment. Annexure 6 order of the Assistant Cardamom Settlement Officer also strengthens the case of the petitioner. 9. Whatever it may be, there are rival contentions as to who was in possession of the property - on the date of the alleged commission of crime i.e., on 03.09.2014. Now the finding of the District Court holds the field. The District Court found that the petitioner in possession of the property and that was how a decree Crl.M.C.No.2747 OF 2019 7 on injunction was granted in his favour. That finding holds the field. That would derail the allegation of theft made against the petitioner. In other words, the owner or person in possession himself cannot be heard committed theft from the property. 10. It is also evident that the dispute between the parties is eminently civil in nature. They were agitating the dispute through the civil court. As held by the Hon'ble Supreme Court in **V.R. Dalal and Others v. Yogendra Naranji Thakkar and Another** [ **AIR 2008 SC 2793]** , when dispute between parties is civil in nature, the court may not allow criminal proceedings to go on. The learned counsel also relied on the decision reported in **Anilkumar v. State of Kerala and Others [2019 (3) KHC 311]** and submitted that a dispute which is essentially of a civil nature is given a cloak of criminal offence and therefore, he presses for quashing the proceedings. 11. As noticed earlier, the appellate judgment of the District Court, Thodupuzha stands in favour of the petitioner. So long as such a judgment is in existence, which is not reversed by this Court, it is illegal to proceed against the petitioner through the criminal court. Crl.M.C.No.2747 OF 2019 8 12. Resultantly, entire proceedings in C.C. No. 509/2017 on the file of the Judicial First Class Magistrate's Court, Nedumkandam are quashed and the petitioner shall stand exonerated. Crl. M.C. is allowed as above. Sd/- **K.HARIPAL** **JUDGE** **DCS/25.11.2021** Crl.M.C.No.2747 OF 2019 9 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**ANNEXURE**|**1**|**TRUE COPY OF THE PRIVATE COMPLAINT FILED BY**| |---|---|---| |||**THE 3RD RESPONDENT.**| |**ANNEXURE**|**2**|**CERTIFIED COPY OF THE FINAL REPORT IN CRIME**| |||**NO. 504/2014 LAID BY THE 2ND RESPONDENT**| |||**BEFORE THE MAGISTRATE COURT.**| |**ANNEXURE**|**3**|**TRUE COPY OF THE AGREEMENT ENTERED INTO**| |||**BETWEEN THE 3RD RESPONDENT AND THE SAID**| |||**THOMAS JOSEPH.**| |**ANNEXURE**|**4**|**TRUE COPY OF THE EMAIL SENT BY 3RD**| |||**RESPONDENT TO SRI. THOMAS JOSEPH.**| |**ANNEXURE**|**5**|**TRUE COPY OF THE JUDGMENT IN OS.NO.**| |||**240/2010 OF THE SUB COURT, KATTAPPANA.**| |**ANNEXURE**|**6**|**TRUE COPY OF THE PROCEEDINGS DATED**| |||**21/6/2012 OF THE ASSISTANT CARDAMOM**| |||**SETTLEMENT OFFICER, KUMALY.**| |**ANNEXURE**|**7**|**TRUE COPY OF THE COMMON JUDGMENT IN A.S.**| |||**NO. 61/2014 AND 59/2018 OF THE DISTRICT**| |||**COURT,THODUPUZHA.**|