Philomina Vincent and others v. State of Kerala and Charles Bernad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935** ## **Crl.MC.No. 1145 of 2012 ()** **---------------------------** **CC NO. 1/2011 OF (OLD NO.CC 4/2006 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM) JUDICIAL FIRST CLASS MAGISTRATE COURT -IV (MOBILE COURT) THIRUVANANTHAPURAM.** **------------------** ## **PETITIONERS/ACCUSED 1 TO 5 :** **------------------------------------------------** ## **1. PHILOMINA VINCENT** - **W/O.VINCENT, AGED 50, RESIDING AT T.C.33/328 VETUCAUD, TITANIUM P.O., THIRUVANANTHAPURAM-695021.** **2. J. MANOJ, S/O.CELIN, AGED 38, RESIDING AT T.C.33/328, VETTUCAUD TITANIUM P.O., THIRUVANANTHAPURAM-695021.** **3. CELIN, W/O.JOHNSON, AGED 61, RESIDING AT T.C.33/328, VETTUCAUD, TITANIUM P.O. THIRUVANANTHAPURAM - 695021.** ## **4. MANJU, D/O.CELIN,** - **AGED 36, RESIDING AT T.C.33/328, VETTUCAUD TITANIUM P.O., THIRUVANANTHAPURAM - 695021.** **5. ZACHARIYAS, S/O.JOSEPH ROZARIO, AGED 55, RESIDING AT T.C.33/328, VETTUCAUD TITANIUM P.O., THIRUVANANTHAPURAM-695021.** **BY ADVS.SRI.D.GANESH KUMAR SMT.K.I.KAVITHA** ## **RESPONDENTS/COMPLAINANTS :** **---------------------------------------------------** **1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM DISTRICT.** ## **2. CHARLES BERNAD, BERSHI, T.C.32/820(1), BALA NAGAR, VETTUCAUD, TITANIUM P.O., THIRUVANANTHAPURAM-695021.** **R1 BY PUBLIC PROSECUTOR SMT. V.H. JASMINE R2 BY ADV. SRI.A.KRISHNAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/8/2013, THE COURT ON 21-08-2013 PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 1145 of 2012 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** - **ANNEXURE 1 TRUE COPY OF THE JUDGEMENT DATED 17/2/2004 IN OS.726/2000 PASSED BY THE IST ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM.** - **ANNEXURE 2 TRUE COPY OF THE COMMISSION REPORT IN OS.NO.726/2000 OF THE IST ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM.** - **ANNEXURE 3 TRUE COPY OF THE COMMISSION REPORT IN OS.NO.920/2000 OF THE IST ADDL. MUNSIFF'S COURT, THIRUVANANTHAPURAM.** - **ANNEXURE 4 TRUE COPY OF THE COMPLAINT DATED 25/2/2004 LODGED BY 2ND RESPONDENT HEREIN, AGAINST THE PETITIONERS HEREIN.** - **ANNEXURE 5 TRUE COPY OF THE FIR IN VALIYATHURA POLICE STATION CRIME NO.56/CB-7/04.** - **ANNEXURE 6 CERTIFIED COPY OF THE REFER CHARGE IN CR.56/CB-7/04 OF VALIYATHURA POLICE STATION.** - **ANNEXURE 7 TRUE COPY OF THE ORDER IN CC.4/06 DATED 17/1/2007 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.** - **ANNEXURE 8 TRUE COPY OF THE PROTEST COMPLAINT FILED BY THE 2ND RESPONDENT AGAINST THE PETITIONERS HEREIN.** - **RESPONDENTS' ANNEXURES :** - **ANNEXURE R(2)(a) COPY OF THE ORDER OF THE HON'BLE SESSIONS COURT-II, THIRUVANANTHAPURAM IN CRL. R.P. NO. 46 OF 2007 DATED 14.10.2009.** - **ANNEXURE R(2)(b) COPY OF THE ORDER OF THE ACCOMMODATION CONTROLLER, THIRUVANANTHAPURAM DATED 19.7.2003.** - **ANNEXURE R(2)(c) COPY OF THE ORDER OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM DATED 25.6.2004.** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **V.K.MOHANAN, J.** **------------------------------Crl.M.C.No.1145 of 2012 ------------------------------Dated this the 21[st] day of August, 2013.** ## **O R D E R** The accused in C.C.No.1/11, (Old No.C.C.No.4/2006 of the Chief Judicial Magistrate Court, Thiruvananthapuram) of Judicial First Class Magistrate Court-IV (Mobile court), Thiruvananthapuram, are the petitioners herein, who preferred the above petition under Section 482 of Cr.P.C., with a prayer to set aside Annexure-8 complaint and all further proceedings in the above calendar case. 2. The case of the petitioners is that the 2[nd] respondent was a tenant of 1[st] petitioner, who obtained title as per sale deed dated 20.10.1993 and the 2[nd] respondent was a tenant to the predecessor titleholder of the petitioner and the tenancy continued with the permission of the 1[st] petitioner till 1998. Thus in the year 1998, the 1[st] petitioner, who is the title holder of the property, **Crl.M.C.No.1145 of 2012** 2 demanded the tenant-the 2[nd] respondent, to surrender the vacant possession of the shed, rented out to him. According to the 1[st] petitioner, on such demand, the 2[nd] respondent-tenant abandoned the pan shop made of wood and the roof with old sheets and thereafter he filed a suit against the 1[st] petitioner/defendant, contending that the accused forcefully evicting the 2[nd] respondent/plaintiff from the pan shop and he had obtained an ex parte injunction order. The 1[st] petitioner in the meanwhile filed a suit against the tenant-the 2[nd] respondent herein not to make any alterations or renovations in the shop room. Subsequently, the suit filed by the tenant-2[nd] respondent was dismissed on 17.2.2004. According to the petitioners, the suit filed by the 1[st] petitioner was withdrawn as the tenant abandoned the pan shop. According to the petitioners, when the suit filed by the 2[nd] respondent-tenant was dismissed on 17.2.2004, with a view to harass the petitioners, the 2[nd] respondent preferred a complaint dated **Crl.M.C.No.1145 of 2012** 3 25.2.2004, which was forwarded under Section 156(3) of Cr.P.C. to the Valiyathura police station, wherein crime No.56/CB-7/04 was registered, but the said complaint, after an elaborate enquiry and investigation was referred by the said police and filed a refer report, against which, the 2[nd] respondent preferred a protest complaint again to harass the petitioners. But in that protest complaint, the petitioners were discharged, which order was challenged by the 2[nd] respondent by filing Crl.R.P.No.46/07 before the Sessions court and the same was allowed and thus the protest complaint is now pending as Annexure-8 before the court below. 3. According to the petitioners, a serious civil dispute was pending between the petitioners and the 2[nd] respondent and when the 2[nd] respondent failed in that civil dispute, he approached the criminal court by filing a formal complaint and subsequently the crime was referred by filing a protest complaint. According to the petitioners, in **Crl.M.C.No.1145 of 2012** 4 the given facts and circumstances of the case and especially in the light of the various proceedings both civil and criminal, involved in the case, it is crystal clear that the present protest complaint is preferred on experimental basis, vexatiously to harass the petitioners and therefore the same will amounts to abuse of process of court. 4. According to the 2[nd] respondent, who is the complainant, the petitioners have no authority to interfere with the peaceful possession of the pan shop in question and to demolish the same and to take away the articles kept therein, though the suit filed by him was dismissed and therefore the offences alleged against the petitioners would lie, which requires judicious scrutiny by the court below. Therefore, while exercising the jurisdiction under section 482, this Court will not be justified in interfering with the criminal case pending before the court below against the petitioners. 5. I have heard Adv.Sri.D.Ganesh Kumar, learned **Crl.M.C.No.1145 of 2012** 5 counsel for the petitioners and Adv.Sri.A.Krishnan learned counsel for the 2[nd] respondent and Adv.Smt.V.H.Jasmine learned Public Prosecutor. 6. The learned counsel for the petitioners, sticking on the facts stated above, it is further submitted that the petitioners never intended to commit any offence as alleged by the 2[nd] respondent/complainant and they were not having any intention to forcefully evict the 2[nd] respondent. The learned counsel submitted that when the 2[nd] respondent failed to accede the demand made by the 1[st] petitioner to surrender the vacant possession of the pan shop in question, on expiring the extended tenancy, the 1[st] petitioner has issued a legal notice dated 29.10.1999 asking the 2[nd] respondent to vacate the premises in question. Immediately after issuing such a legal notice, the 2[nd] respondent preferred a complaint in the court of Chief Judicial Magistrate-Thiruvananthapuram, and on receiving the same under Section 156(3) of Cr.P.C., Crime No.19/02 **Crl.M.C.No.1145 of 2012** 6 in Valiyathura police station, was registered for the offence under sections 380, 417, 451 and 34 of IPC. After the investigation, according to the learned counsel for the petitioners, the police preferred a refer report in Crime No.19/02. According to the learned counsel, as the 2[nd] respondent abandoned the shop and approached the police, the petitioners approached the police and as directed by the police, the petitioners produced the articles which were kept in the shop, before the police and hence the petitioners had not committed any offence as alleged by the 2[nd] respondent. 7. On the other hand, Adv.Sri.A.Krishnan, learned counsel for the 2[nd] respondent, vehemently submitted that as per the order in Crl.R.P.No.46/07, the lower revisional court by setting aside Annexure-7 discharge order of the learned Magistrate has restored the protest complaint against the petitioners and the petitioners now approached this Court very belatedly. It is also the contention of the **Crl.M.C.No.1145 of 2012** 7 learned counsel that, even if the 2[nd] respondent has not challenged the judgment in O.S.No.726/00, no authority thereby conferred upon the petitioners to unauthorisedly entered into the pan shop, which was in the possession of the 2[nd] respondent and to demolish the same and to take away the articles kept therein, and therefore the offences alleged against the petitioners would lie. In order to substantiate the above contention, the learned counsel invited my attention to Annexure 6 refer charge in Crime No.56/CB-7/04 of Valiyathura police station and submitted that even as per the version of the police, the petitioners have demolished the pan shop and the articles mentioned in Annexure 6 were produced from the possession of the petitioners in the police station. According to the learned counsel, even the police has no authority to direct the 1[st] petitioner and her henchmen to demolish the shed in question or to permit them to enter into the same, which was in the possession of the 2[nd] respondent/complainant. **Crl.M.C.No.1145 of 2012** 8 So, according to the learned counsel, the above act of the petitioners, constitute the offences as alleged against them. The learned counsel after inviting my attention to Annexure R2(b) and submitted that the 2[nd] respondent/complainant, to protect his interest, approached the court of Accommodation Controller, Thiruvananthapuram, by filing petition under Section 17(2) of the BRC Act, which resulted in Annexure R2(b) order in favour of the 2[nd] respondent/ tenant and the same unsuccessfully challenged by the 1[st] petitioner in Annexure R2(c) appeal. Thus, according to the learned counsel, while Annexures R2(b) and (c) orders were in force, the petitioners committed the above offences on 17.2.2004 and the said offences are committed with a view to evict the 2[nd] respondent. Thus, the learned counsel for the 2[nd] respondent submitted that the correctness of the allegation may be considered by the court below and the trial may be permitted to be proceeded against the petitioners. **Crl.M.C.No.1145 of 2012** 9 8. I have carefully considered the arguments advanced by the learned counsel for the petitioners as well as the 2[nd] respondent. I have perused the materials produced by the petitioners as well as the 2[nd] respondent. 9. In the light of the arguments advanced by the learned counsel for the petitioners and the 2[nd] respondent and in the light of the materials produced along with in the above case it can be seen that the 2[nd] respondent-the complainant was a tenant of the predecessor of the present title holder of T.C.No.33/326, which is the plaint scheduled shop room in O.S.No.726/00 as revealed by Annexure 1 judgment of the court of the 1[st] Additional Munsiff, Thiruvananthapuram, in O.S.No.726/00. It is beyond dispute that, after acquiring the title deed by the 1[st] petitioner during the year 1993, the tenancy was allowed and during the year 1998, a formal notice dated 29.10.1999 was issued by the 1[st] petitioner against the tenant, asking the 2[nd] respondent- tenant, who is the complainant in the **Crl.M.C.No.1145 of 2012** 10 present case, to surrender the vacant possession. Annexure - 1 judgment, Annexure-2 Commission report in O.S.No.726/00, ( preferred by the 2[nd] respondent), of 1[st] Additional Munsiff, Thiruvananthapuram, Annexure - 3 Commission report in O.S.No.920/00 (preferred by the 1[st] petitioner herein), of 1[st] Additional Munsiff, Thiruvananthapuram, and also Annexures R2(b) and (c) orders would show the seriousness and the nature of the civil dispute exists between the 1[st] petitioner and the 2[nd] respondent/complainant. According to the learned counsel for the petitioners, the 2[nd] respondent preferred two complaints before the court of law, till he files Annexure-4 complaint which is a protest complaint. 10. In the light of the above admitted facts, the further question to be considered is whether the criminal action initiated by the 2[nd] respondent against the petitioners is vexatious in nature and whether the pendency of the same will amounts to abuse of process of **Crl.M.C.No.1145 of 2012** 11 court. In this juncture it is pertinent to note that, after obtaining the title deed by the 1[st] petitioner during the year 1993, though the 2[nd] respondent was continuing as tenant in the shop room in question, the complainant had no grievance against the 1[st] petitioner or other accused till a lawful notice dated 29.10.1999 was received, which is issued by the 1[st] petitioner against the 2[nd] respondent asking him to surrender the vacant possession. It is thereafter, particularly when the 1[st] petitioner filed O.S.No.920/00, the 2[nd] respondent/complainant firstly approached the court below by filing a private complaint, based upon which, Crime No.19/02 was registered. However, the police after an investigation, found that the allegation raised by the 2[nd] respondent was mistaken of facts and accordingly a refer report was filed before the court below. That being the position, O.S.No.726/00 filed by the 2[nd] respondent/complainant was dismissed as per Annexure-1 judgment dated 17.2.2004. On the dismissal of **Crl.M.C.No.1145 of 2012** 12 the suit on 17.2.2004, the 2[nd] respondent preferred another Annexure-4 complaint within 8 days from the date of dismissal of this suit. It is in the said complaint, the complainant made allegation to the effect that on 17.2.2004, the petitioners have committed the offences as alleged. So, according to the complainant, the cause of action arose on 17.2.2004, ie., the date on which the suit filed by him was dismissed. Suffice to say, he did not inform the police about the above incident and instead of that, he approached the court, by filing Annexure-4 complaint. The police after conducting an elaborate investigation, preferred Annexure-6 report in Crime No.56/CB-7/04 of Valiyathura police station, which was registered as per Annexure-4 complaint. In Annexure-6 report, the police has stated that, when the 1[st] petitioner when attempted to demolish the shop room in question, which was in a dilapidated condition, the complainant approached the police and accordingly the police directed **Crl.M.C.No.1145 of 2012** 13 the 1[st] petitioner/1[st] accused that, if any articles left there in the shop, shall be produced before the police station, so as to entrust the same with the 2[nd] respondent/complainant and accordingly the 1[st] petitioner produced certain articles like, useless fridge, a small wooden stand, some soda bottles and three plastic trays used for keeping the soda bottles. So, even according to the police report, the attempt of the 1[st] petitioner was to avoid further damage to the shop room and as directed by the police, she has produced the articles mentioned above, before the police. In this juncture it is also relevant to note that, even according to the police, the 2[nd] respondent/complainant has abandoned the shop room in question, which report of the police justifies the claim of the 1[st] petitioner. Suffice to say that, the 2[nd] respondent's suit was dismissed as per Annexure-1 judgment on 17.2.2004 and that was not challenged by the 2[nd] respondent and thus the same became final. Of course, the 2[nd] respondent has **Crl.M.C.No.1145 of 2012** 14 approached the statutory authorities as per the previsions of the Rent Control Act, which resulted in Annexures R2(b) and (c) orders. But that does not mean that the 1[st] petitioner-landlady or the title holder has no right or authority over the shop room in question and take appropriate steps to preserve her property, especially when the tenant-the 2[nd] respondent/complainant abandoned the shop room. 11. Thus it can be seen that the 2[nd] respondent/ complainant approached the court below and initiated criminal proceedings when he failed in his civil action against the 1[st] petitioner, who is the title holder of the property in question. As I indicated earlier, till issuing a legal notice dated 29.10.1999, the 2[nd] respondent/ complainant has no grievance against the 1[st] petitioner, since he was permitted to continue in possession as per the rent/kai cheet dated 23.10.1993 executed and given by the 1[st] petitioner landlady. It is thereafter the 2[nd] respondent **Crl.M.C.No.1145 of 2012** 15 preferred the first complaint against the 1[st] petitioner and others, consequent to which, Crime No.19/02 was registered in the Valiyathura police station. The second complaint was filed, when the suit filed by the 2[nd] respondent dismissed as per Annexure-1 judgment. So it is crystal clear that the attempt of the 2[nd] respondent/ complainant was to give a criminal flavour to the civil dispute, which was pending between the 1[st] petitioner and the 2[nd] respondent, who are respectively the landlady and the tenant. The Honourable Apex Court in a recent decision reported in **Paramjeet Batra V. State of Uttarakhand & Ors. (2013(2) KLJ 217)** has held in ## paragraph 7 that, “While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a compliant discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also **Crl.M.C.No.1145 of 2012** 16 have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.” 12. Moreover, it is relevant to note that even as per the report of the police and as evident from Annexure 6, the landlady in exercise of her right to preserve her property, attempted to demolish the dilapidated shop room, but at that time, at the intervention of the police, she was asked to produce the articles before the police station if anything kept in the said shop room, which is a lawful direction issued by the police and had duly complied with by the 1[st] petitioner/accused. So, according to me, no offence as alleged would lie against the petitioners. A learned Judge of this Court in the decision reported in **Kesavan Nair N. and others Vs. State of Kearla and others** ( **2005 KHC 936)** has held that, **Crl.M.C.No.1145 of 2012** 17 “Even if the accused removed the movables with the intention to evict the complainant, proof of removal of a movable property by the accused alone will not be sufficient to establish theft ”. ## In paragraph 6 it is held that, “A close reading of S.378, 24 and 23 I.P.C. extracted above would show that proof of removal of a movable property by the accused alone will not be sufficient to establish “theft”. Prosecution has to further prove that the accused had intended to take the movable property “dishonestly” as defined under S.24 read with S.23 I.P.C. To prove that the accused intended to take the property “dishonestly”, prosecution has also to establish that the accused intended to cause wrongful gain or wrongful loss of the movable property as stated in S.23 of I.P.C. Thus, to prove the offence of “theft”, prosecution has to establish that the accused moved the articles with the requisite intention contemplated by S.378 I.P.C. read with S.23 and 24 of I.P.C.” ## Further in paragraphs 9 and 12, this Court has further held ## that, “9. But, the records in this case will not reveal that the accused had any intention to cause wrongful gain or wrongful loss in respect of any “movable” property. In the charge sheet itself it is stated that the accused had removed the movables with the intention to evict the complainant. The definite case of the prosecution is that the movables were removed with the intention to evict the complainant. It is specifically stated in complaint that the accused had threatened the complainant that his articles will be removed in case he did not vacate the premises. **Crl.M.C.No.1145 of 2012** 18 The accused thereafter allegedly removed the files, books etc. from the possession of the complainant. But those movables were kept exposed and intact in the premises of the house of the accused. Thus, even if the entire allegations in the records are accepted, it will only reveal that the accused moved the articles with the intention to evict the complainant from the building but they did not have the intention to cause any wrongful gain or wrongful loss of any movable property. Therefore the allegations revealed from records will not constitute offence under S.380 I.P.C. If no offence under S.380 is attracted, no offence under S.451 also will lie.” ## xxxxxxxxxxx “12. Learned counsel appearing for the 3[rd] respondent also strenuously contended that this Court while exercising its inherent jurisdiction cannot look into the truth of the defence or falsity of prosecution case at this stage but those can be decided at the appropriate stage by the courts below. He also cited a decision in support of his argument [vide 1992 (2) KLJ 487 -- Abdul Salam v. K.M.Muhammadali]. But, I make it clear that what I have gone into is not the truth or falsity of the defence case or that of the prosecution case. Such an enquiry is not necessary for the disposal of this case. I have only considered the records produced by the prosecution as such and decided whether the allegations made against the accused as per records on the face of it will constitute the offences alleged against them. Such an enquiry is permitted under law. It is well settled that if the court finds that the allegations revealed from the records on the face of it do not constitute ingredients of any offence, this court can certainly interfere under S.482 Cr.P.C. and quash the charge. This will be necessary for the purpose of preventing abuse of process of court and also to meet ends of justice, as stated in S.482 itself.” **Crl.M.C.No.1145 of 2012** 19 So, following the principles laid down in the above decision, according to me, none of the offences alleged against the petitioners is attracted. 13. Though no offence is attracted against the petitioners in the above given facts and circumstances of the case, according to me, the 2[nd] respondent can agitate his grievance if any at the civil side, since this Court is not expected to settle the civil right or liabilities of the parties to the case in hand. Therefore, it is up to the second respondent/complainant to find out his civil remedy and to agitate the same, if he is so advised and he cannot be permitted to resort the criminal proceedings by passing the civil remedies to redress his civil grievance, if any. In the result, the proceedings in C.C.No.1/11 pending before the court of Judicial First Class MagistrateIV (Mobile Court), Thiruvananthapuram, are quashed and all proceedings pending thereon against the petitioners are illegal and continuation of the same would amounts **Crl.M.C.No.1145 of 2012** 20 to abuse of process of court and accordingly Annexure 8 complaint is also quashed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge