Dismissed

David D Souza v. State of Karnataka

Karnataka HC21 Mar 2023CRL.RP/1016/2014

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a criminal revision petition challenging a second-order conviction for criminal trespass under IPC Sec. 447. The Court upheld the finding that the accused, a contractor, entered land without permission to annoy residents, rejecting the claim that the complaint was false.

What did the court decide?

Revision Petition dismissed; Judgment dated 12.11.2014 in Crl.A.No.40/2013 confirmed.

David D Souza Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF MARCH, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAMACHANDRA D.HUDDAR CRIMINAL REVISION PETITION No.1016/2014

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BETWEEN :

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David D’Souza Aged 40 years S/o.Late William D’Souza Prince Point, Pilar Village Udupi Taluk and District

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… Petitioner

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(By Sri S.K.Acharya, Advocate)

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AND :

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State of Karnataka By Padubidri Police Station Represented by State Public Prosecutor High Court of Karnataka Bengaluru 560 001.

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… Respondent

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(Sri V.S.Vinayaka, HCGP)

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This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C., praying to allow the Criminal Revision Petition by setting aside the judgment dated 12.11.2014 passed in Crl.A.No.40/2013 on the file of the Court of the Prl. Sessions Judge, Udupi District, Udupi and judgment dated 19.3.2013 passed in CC NO.709/2010 on the file of II Addl.Civil Judge and JMFC, Udupi.

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This Criminal Revision Petition having been heard and reserved on 17.02.2023, coming on for pronouncement of orders, this day, the Court made the following :

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ORDER

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Revision Petitioner-accused no.1 being aggrieved and dissatisfied by the Judgment dated 12.11.2014 passed in Crl.Appeal No.40/2013 by the Prl.District and Sessions Judge, Udupi partly allowing the appeal by modifying the judgment of conviction and sentence dated 19.3.2013 in CC NO.709/2010 on the file of II Addl. Civil Judge and JMFC, Udupi by imposing a fine of Rs.500/- for the offence punishable under Sec.447 of IPC and in default of payment of fine, to undergo SI for a period of 21 days, have preferred this revision petition.

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Brief and relevant facts leading upto this revision petition are as follows:

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That complainant by name Jagannath Shetty S/o.late Muddanna Shetty resident of Kolachur Moodumane, Yellluru Village, Udupi Taluk lodged a complaint on 10.10.2009 at 6.10 p.m. by appearing before the SHO of Padubidri Police Station alleging that he is lodging a complaint against one

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David D’Souza being the contractor of Prince Point, Pilarin. It is alleged that though a complaint was lodged against him, no action was taken. It is alleged that on 9.10.2009, the said accused along with about 100 persons by forming an unlawful assembly committed criminal trespass into the patta lands in Sy.No.277/7, 277/25 in the absence of the complainant. The complainant had requested the Land Acquisition Officer on 9.10.2009 to drop the proceedings of acquisition of the said lands and when the said request was made raising objections for acquisition by the complainant, the female members of the family of the complainant informed the complainant stating that the said accused David D’Souza by forming an unlawful assembly of more than 100 persons committed criminal trespass into the said landed properties and caused loss to the extent of more than Rs.3 lakhs and also abused them in filthy language and gave a life threat to them. On getting such information through telephone, complainant informed the said fact to the LAO about illegal act of the accused. The LAO, through telephone called upon the said persons to stop such an activity stating

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that the process of land acquisition is not completed. With these allegations, a complaint came to be filed before SHO of Padubidri Police Station with a request to take necessary action.

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PW.9 on receipt of the complaint as per Ex.P1 registered the same in Crime No.162/2009 and prepared the FIR as per Ex.P7 and set the criminal law in motion. Thereafter handed over investigation to PW.9 Mohan Kothari, the then Police Sub-Inspector, Padubidri Police Station.

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PW.9 Investigation Officer visited the scene of offence on 11.10.2009, prepared the Panchanama of scene of offence in the presence of Panchas as per Ex.P2 in between 2.00 p.m and 2.45 p.m. Took out the photographs as Ex.P3 and P4. Recorded statements of witnesses and also recorded the further statement of the complainant, gave a requisition to the LAO to know about completion of the land acquisition proceedings of the said landed properties and obtained a report. On 2.11.2009 the accused appeared before him with anticipatory bail, arrested him and enlarged

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him on bail. On 4.11.2009 seized the JCB bearing KA-152469 under Ex.P6. Obtained the record of rights as per Ex.P9. Obtained a document as per Ex.P10. After completion of the investigation, showing accused no.3 to 5 as absconding, filed the charge sheet.

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After filing the charge sheet, the jurisdictional Magistrate took cognizance of the offence. Presence of the accused 1 to 5 was secured and they were enlarged on bail. Copies of police papers were furnished to the accused as contemplated under 207 of Cr.PC.

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The learned Magistrate, after hearing both side, framed the charges against the accused persons for the offences 143, 147, 447, 504, 506, 427 r/w.sec.114 of IPC and read over the same to the accused persons in Kannada the language known to them. They pleaded not guilty and claimed to be tried.

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To substantiate the case against the accused persons, prosecution examined PW.1 to 9 and got marked Ex.P1 to P10. Closed prosecution evidence.

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After closure of the evidence of the prosecution, the

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accused were questioned under Sec.313 of Cr.PC so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. They denied their complicity in the crime. No defence evidence is lead.

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The learned trial Magistrate after hearing the arguments found accused no.1 guilty of offence under Sec.447 of IPC and sentenced him to pay fine of Rs.2,000/with default sentence. So far as accused nos. 2 to 5 are concerned, the learned trial Magistrate found them not guilty and acquitted them of the offences under Sec.143, 147, 447, 504, 506, 427 read with Sec.149 of IPC.

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Accused no.1 being aggrieved by the judgment of his conviction and sentence for the offence under Section 447

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of IPC preferred Criminal Appeal No.40/2013 before the Prl.District and Sessions Judge, Udupi District, Udupi. The learned first appellate court, having secured the records, after hearing both the side, allowed the appeal in part and confirmed the conviction so passed against accused and imposed a fine of Rs.500/- with default sentence.

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It is this judgment of conviction and sentence, being affirmed by the First Appellate Court, accused no.1 has preferred this revision on the following grounds:

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That, the judgments rendered by the Courts below convicting and sentencing accused for the offence under Sec.447 of IPC are illegal and against the evidence. The whole case of the prosecution is based upon the evidence rendered by PWs. 2 and 3 as per both the Courts. All are relatives. They having interest, their evidence is believed by the courts below. There are more contradictions, omissions in the evidence of PW.3 and based upon that, accused would have been acquitted. Accused is working as a contractor for power project and there are series of false complaints against

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him. The villagers are opposing the power project by M/s. Nagarjuna Power Corporation Ltd.. Therefore, a false complaint is lodged against him. The evidence of PW. 1 to 3 do demonstrate that they are the members of Nandikur Janajagruti Forum who are opposing land acquisition proceedings of M/s. Nagarjuna Power Corpn. Ltd., Once the land was acquired for the project, the accused petitioner being contractor working under M/s. Nagarjuna Power Corporation, the question of he committing damage and trespass is nothing but baseless and imaginary story. The trial court ought to have noticed that, except the interested evidence of PWs.1 to 3, there is absolutely no evidence. If the conviction is maintained, it is against the well established principle of law. He is innocent. There is absolutely no case made out against him. Hence, it is prayed to allow the revision and acquit the accused.

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After filing of this revision, the learned SPP took notice of this revision.

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Records of the trial Court and first appellate Court are secured. Heard the arguments of both the side and perused the records.

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The point that would arise for my consideration

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are:

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“Whether the trial Court as well as first appellate Court are justified in finding accused no.1 guilty of offence under Sec.447 of IPC?”.

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PW.1 being the complainant though states with regard to the commission of the criminal trespass into his landed properties bearing Survey No.277/1, 277/25 on 9.10.2009 and causing damage to the properties but, evidently he is not an eye witness to the said incident. PW.1 came to know about alleged criminal trespass by accused no.1 along with more than 100 persons, abusing the members of the family of the complainant, causing damage to the property through telephone from the members of his family. According to his complaint Ex.P1, he informed the said fact to the Land Acquisition Officer, Kundapur and who,

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in turn telephoned to stop such activities. The complaint was lodged at 6.10 p.m. on 10.10.2009.

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As PW.1 is not an eye witness to the said incident and just he lodged a complaint as per Ex.P1, to ascertain the real fact, the evidence paced on record by the prosecution plays an important role. P.W.1 being the complainant reiterates the contents of the complaint in his examinationin-chief. He says that, no valuation is made to assess the damage caused to his property. According to him, when the police came to the scene of offence, there were 10 to 20 persons and took his signatures on 2 to 3 papers. It is suggested to PW.1, that when Nagarjuna company people came with regard to the land acquisition, the said incident has taken place. This suggestion to PW.1 do establish the admission of incident by the accused persons. According to him, on getting information from the members of his family when he was in the office of LAO, Kundapura, he informed the said fact to the LAO and also police. Though severe cross examination is directed, but, with regard to the said incident,

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he has spoken before the Court on oath about getting information from the members of his family. Nothing worth is elicited from the mouth of this witness so as to disbelieve his evidence given in examination-in-chief.

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PW.2 Ranganath Shetty, PW.3 Prakash Shetty, PW.4 Jayanth Kumar being the members of the family of the complainant are the eye witnesses to the said incident of tress pass so alleged by the prosecution against accused no.1. On reading the evidence of PW.2 to 4, they are specific in their evidence about committing criminal trespass into their landed property. They identified accused no.1 along with other persons when they committed the trespass. Though these three witnesses have been directed with searching cross-examination, but, nothing worth is elicited so as to disbelieve the version given in examination.

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Learned trial Court and first appellate Court have properly assessed and appreciated the evidence of three witnesses. PW.5 Nageshwara is pancha to Ex.P2 but he has been turned hostile.

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He admits in the cross-examination that, accused David and others have damaged the property of CW. 1 and 2. There is no further denial of this, fact in the cross examination directed by the accused to this PW.5.

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PW.6 Ramesh, S/o. K.S.Nagaraj was the Asst.Commissioner who issued Ex.P5 showing acquisition of Sy.Nos. 277/7, 277/25 of Yellur Village. The landed properties of complainant are not the subject matter of acquisition but proceedings for acquisition is initiated. The landed property was not handed over to the concerned project. PW.6 states about initiation of acquisition proceedings, but, no possession was handed over. Thus, evidence o PW.6 is very much clear that still possession of landed properties of complaint and his family was with them.

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P.W.7 Santosh Acharya is Pancha but, has been turned hostile. Under this Ex.P6, JCB bearing Reg.KA 15 2469 was seized. As he has been turned hostile, his evidence will not help to prove the contents of Ex.P6. Therefore, I disbelive his evidence.

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PW.8 is the Police official who received the complaint registered the same and set the criminal law into motion. Nothing worth is elicited and registering the complaint is not denied by the defence. PW.9, is Investigating Officer. He speaks with regard to investigation so did by him.

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On reading the evidence of PWs.1 to 4, as rightly observed by both the Courts, the evidence spoken to by them clinchingly establishes the commission of criminal trespass by accused no.1. He being a contractor is expected to know that for the execution of his contract work, the landed property required for power project is really being acquired or not. Simply entering the landed property belonging to others without any permission amounts to committing criminal trespass.

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The criminal trespass has been defined in Sec.441 of IPC, 1860. The charging section for the offence of criminal trespass is Sec.447 of IPC. To justify a conviction of criminal trespass, it must be proved that, some criminal intent was

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present in the mind of the accused and it does not at all follow that because an act is unlawful and is one that the civil law will restrain or for which it will compensate the injured party in damages, it is necessarily criminal. Accused no.1 being the contractor working under the Power Project as per the allegations by forming an unlawful assembly of more than 100 persons committed criminal trespass. It is brought on record that, there was opposition for such acquisition by the villagers. Though this accused no.1 had the knowledge about the same, could not have taken law into his hands and committed trespass on the landed property of others when it is clear from the evidence of PWs.1 to 4 the said landed properties belonging to them and they were in possession and occupation of the same. This accused no.1. with an intention to annoy the complainant and his family members and he, along with so many persons entered upon the landed property of the complaint’s family caused damage etc… amounts to committing criminal trespass. As per the prosecution case, there was an intention on the part of accused no.1 to enter upon the landed property of

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complainant. Thus, the main ingredient of Sec.447 of IPC that a trespass with an intention of annoying the complainant’s family is proved in this case. Thus, the learned trial Court and first appellate Courts have rightly come to the conclusion that it is accused no1. who has committed the offence of criminal trespass into the landed property of complainant with an intention to annoy him under the guise of executing contract work of power project.

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The documents produced as per Ex.P10 and photographs so relied upon do establish about commission of the criminal trespass.

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While marking these documents, no objection is being raised by the defence. The names of the complainant and others is appearing in RTC extracts as per Exs.P8 and 9 in column Nos.9 and 12 showing that still they are owners and occupants of the said properties.

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Ex.P10 shows that no civil work in the said survey nos. belongs to complainant Jagannath Shetty in Yellur

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village is undertaken. If that is so, why the accused no.1. committed such a criminal trespass into the said landed properties is best known to accused no.1 only.

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Both the Courts have categorically held about the guilt of the accused in committing tress pass and I do not find any factual or legal error in appreciating the evidence. There is no perversity in findings of the trial Court and first appellate Court. Therefore, though so many grounds have been urged in this revision to prove that PWs.1 to 3 are interested witnesses etc. but, we cannot expect any other third person in the said property belongs to the complainant at the time of incident. Their evidence is trustworthy therefore, merely because they are relations, that will not shake their evidence. Hence, accused no.1 has utterly failed to prove his innocence.

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Hence, I record my finding on the above point in the affirmative.

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In view of my discussion made above, there is no merit in this revision. It is liable to be dismissed. Resultantly, I pass the following :

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ORDER

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Revision Petition filed by the petitioner-accused under Section 397 R/w.401 is dismissed.

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Judgment dated 12.11.2014 passed in Criminal Appeal No.40/2013 by Prl. Sessions Judge, Udupi partly allowing the appeal by modifying the judgment of conviction dated 19.3.2013 in CC No.709/2010 on the file of II Addl.Civil Judge and JMFC, Udupi is hereby confirmed.

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Send back the trial court record and first appellate Court record along with copy of this order forthwith to the trial Court and first appellate Court.

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Sd/JUDGE

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Sk/-

David D Souza v. State of Karnataka

Case brief

What is this about?

What did the court decide?

David D Souza v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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