Smt.Manjula Shashidharan.Vs Manikandadas

Mohammed Nias C.P, J

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:-

1

CMP No. 486 of 2012

Judl. First Class Magistrate Court, Varkala

Manikanda      Das,      the      first respondent   herein   against   the petitioners herein

2

OS No. 14 of 2012

Munsiff Court, Varkala

Santhosh     Kumar,     the     first respondent's     brother     against Manjula    Sasidharan,    the    first petitioner herein, Tahasildar   and Taluk Survey Officer Attingal

3

FIR No. 76/2012

Before Kadakkavoor Police Station, registered for the offences under sections 324, 447 and 506 (I) read with Sec. 34 IPC

Against  Manikanda  Das,  the  first respondent  herein  and  Vijayan, the brother of Mandikanda Das

4

O.P. No. 4665/2000 along with O.P. 4579/2000

Before the Hon'ble High Court of Kerala

Vijayan,      the       brother      of Mandikanda     Das,     the     first respondent       herein       against Manjula    Sasidharan,    the    first petitioner  herein  and  the  official respondents

5

O.S. 228/2010

Munsiff Court, Varkala

Vijayan,      the       brother      of Mandikanda     Das,     the     first respondent       herein       against Manjula    Sasidharan,    the    first petitioner herein

6

Complaint

Before the Revenue Divisional Officer

Manjula    Sasidharan,    the    first petitioner    herein    against    the RDO, Thiruvananthapuram

7

W.P.C. No. 3152/2012

Before the High Court of Kerala

The petitioners herein against the Commissioner  of  Police,  C.I.  of Police     and     S.I.     of     Police Thiruvanthapuram,                and Manikanda      Das,      the      first respondent herein and his brother Vijayan.

8

O.S. No. 32 of 2012

Before the Sub Court, Attingal

Santhosh  Kumar,  the  brother  of the     first     respondent     herein against the petitioners herein.

9

O.S. 36/2012

Before the Munsiff Court Varkala

Manikanda      Das,      the      first respondent       herein       against petitioners  1  and  2  herein  and one  Bineesh Babu

10

Crl.R.P. 1173 of2014

Before the Hon'ble High Court of Kerala

Bineesh Babu against  petitioners

1     to     4     herein     and     one Chandrasenan,   Sherin,   B.Jayan and the State

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.

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.

Heard Smt.Radhika Rajasekharan.P, learned counsel for the petitioners, Sri.K.P.Sujesh Kumar, the learned counsel for the first respondent as well as Smt.M.N.Maya, the learned Public Prosecutor and perused the records.

It is seen, going by the admitted case that Santhosh Kumar, the first respondent's brother had instituted OS No.14 of 2012 before the Munsiff's Court, Varkala, against the first respondent as well as the Tahasildar and the survey officer pleading that the property of the petitioner and that of the plaintiff therein are lying adjoining to each others and therefore, the boundary has to be fixed. The prayer in the said suit was therefore to demarcate the boundaries of the respective properties and to fix the boundary of the properties in question. It has to be straightaway noticed that the determination involves demarcation of the boundary of the respective adjoining properties which alone will decide as to where the boundary is located and also as to whether there is any trespass and resultantly, of the ownership of the trees standing thereon alleged to have been stolen by the petitioners. In the absence of a determination of the said issues raised in the above suit as aforesaid, question of trespass does not arise at all and consequently, a charge under section 379 of IPC for committing theft of the timber standing in the property also do not arise. Even otherwise, the allegation of theft can only be in respect of movable property, namely, the trees cut as possession referred in section 379 of the IPC has to be the actual and physical possession and it does not take in immovable property. It is true that, standing timber being embedded in the earth is immovable property but the moment it is severed from the earth becomes capable of being the object of theft. The question as to who possess or owns the property in question is pending determination before a competent civil court. In such circumstances, the allegation of commission of offence under section 379 of IPC cannot be sustained. It is also pertinent to note that the parties are not in good terms as is evident from series of litigations between them stated above. Regarding, the allegation under section 506(2) of IPC and the averments in the complaint are totally insufficient and the same is again made in the backdrop of the allegations of theft. A reading of the complaint shows that the dispute between the parties is essentially civil in nature and for which suits are pending determination. I do not find anything to support the respondent's case in the decisions relied on by them as the principles stated therein admits of no doubt. The attempt to convert a case of civil nature into a criminal offence has been deprecated through several judgments of the Honourable Supreme Court specifically holding that the institution of a criminal case cannot be used as a weapon of harassment. Accordingly, I hold that Annexure A1 complaint and all subsequent proceedings are nothing but an abuse of process of law and the attempt is to convert the case of civil nature into a criminal offence. The facts and circumstances of the case shows that none of the offences for which the petitioners are summoned is made out from the complaint. I also hold that the above proceeding is instituted maliciously to wreck vengeance as is evident from the series of litigations instituted on behalf of the first respondent. The Courts cannot be used for oblique purposes and invoking the inherent power to protect its process from abuse, Annexure A1 complaint and all further proceedings are liable to be quashed, and I do so.

In the result, Criminal M.C.is allowed and all further proceedings in CC No.890 of 2013 on the file of the Judicial First Class Magistrate Court, Varkala, are hereby quashed.