Dismissed

Bhuvanachandran v. State of Kerala

Kerala HC7 Jul 2016Crl.MC/2990/2015

Case brief

AI extract

What is this about?

The Court under Section 482 CrPC refused to quash criminal proceedings arising from a property dispute. It held that the allegations prima facie make out an offence and quashing powers should not be used to stifle legitimate prosecutions where facts remain disputed. The petition was dismissed.

What did the court decide?

The petition to quash criminal proceedings under Section 482 CrPC is dismissed as there is no merit.

Bhuvanachandran Vs State of Kerala — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 7TH DAY OF JULY 2016/16TH ASHADHA, 1938

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Crl.MC.No. 2990 of 2015

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CMP 689/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - III, THIRUVANANTHAPURAM CRIME NO. 138/2015 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM

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PETITIONERS/ACCUSED 1 AND 2:

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----------------------------

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1. BHUVANACHANDRAN, AGED 58 YEARS, S/O.KRISHNANKUTTY, T.C.16/1061, K.R.BHAVAN, JAGATHY, THIRUVANANTHAPURAM.

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2. RENJITH, AGED 34 YEARS, S/O.BHUVANANCHANDRAN, T.C.16/1061, K.R.BHAVAN, JAGATHY, THIRUVANANTHAPURAM.

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BY ADVS.SRI.D.KISHORE

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SMT.MINI GOPINATH

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RESPONDENTS/STATE, COMPLAINANT AND DEFACTO COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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2. THE SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT - 695 001.

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3. K.VIJAYAN NAIR, S/O.M.K.KUMARA PILLAI, MADATHIL ENGINEERING COMPANY, JAGATHY, THYCAUD, THIRUVANANTHAPURAM, RESIDING AT MADATHIL VEETTIL, CHOOZHATTUKOTTAH, MALAYAM P.O., MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM - 695 571.

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R1 & R2 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE R3 BY ADVS. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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msv/

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Crl.MC.No. 2990 of 2015

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APPENDIX

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PETITIONER(S)' ANNEXURES

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ANNEXURE I. CERTIFIED COPY OF THE PRIVATE COMPLAINT IN CMP 689/2015 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, THIRUVANANTHAPURAM.

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ANNEXURE II. CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.138/2015 OF MUSEUM POLICE STATION.

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ANNEXURE III. TRUE COPY OF RENTAL AGREEMENT DATED 04.07.2008 EXECUTED BETWEEN THE 1ST PETITIONER AND THE 3RD RESPONDENT.

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ANNEXURE IV. TRUE COPY OF THE PLAINT IN O.S.1213/2014 OF MUNSIFF'S COURT, THIRUVANANTHAPURAM.

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ANNEXURE V. TRUE COPY OF THE ORDER DATED 30.06.2014 IN I.A.4948 OF 2014 IN O.S.1213/2014.

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ANNEXURE VI. TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER IN O.S.1213/2014.

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ANNEXURE VII. TRUE COPY OF THE PETITION FOR EVICTION FILED AS O.P.(RCP)71/2014 BEFORE THE RENT CONTROL COURT, THIRUVANANTHAPURAM.

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RESPONDENT(S)' ANNEXURE:

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------------------------

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. No. 2990 of 2015

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- - - - Dated 7^th July, 2016

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ORDER

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1.The petitioners are the accused Nos.1 and 2 in Crime No.138 of 2015 of Museum Police Station. This petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the “Code”), to quash the above proceedings.

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2.The 3^rd respondent is the tenant of the 1^st petitioner. He is doing a business in sales and service of refrigerators, air conditioners etc. It was on the strength of a rental agreement dated 4.7.2008 that the premises of the 1^st petitioner was taken on lease by the 3^rd respondent. It appears that the parties fell apart and various proceedings are pending before the civil court.

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3.According to the 3^rd respondent, the petitioners had entered the shop by destructing a portion of the wall of the shop by name Madathil Engineering Company and stole house hold items such as air conditioners,

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Crl.M.C. No. 2990 of 2015 -2-

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refrigerators, mixer grinder, DVD players, stabilizer, table top grinder, iron box etc. which were displayed in the show room and thereafter constructed a temporary wall using metal sheets and pipes in the middle of the shop and caused loss and damage to the tune of Rs.65,000/-.

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4.The learned counsel appearing for the petitioners submits that there is no whisper as to the date on which the alleged theft of articles were committed by the petitioners. It is pointed out that the fact that the articles were found missing was noticed by the 3^rd respondent only on verification of stock register much later. This itself would reveal the falsity of the prosecution case. It is the specific submission that the offence under Section 379 of the IPC will not be attracted in the facts and circumstances. Pointing out that various civil disputes are pending between the parties, it is submitted that the intention of the de facto complainant is only to settle scores with the petitioner herein. Referring to the judgment of the Apex Court in Gulati DP Manger Accounts, M/s. Jetking Infotrain Ltd v. State of Uttar Pradesh and Another

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Crl.M.C. No. 2990 of 2015 -3-

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(2015(2) KHC SN 38), it is submitted that when it is brought to the notice of this Court that the complaint is vexatious and frivolous and that the criminal law is set into motion just to harass the accused, this Court will be justified in interfering and quashing the proceedings.

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5.The learned counsel appearing for the 3^rd respondent submits that prima facie allegations are made out and the investigation is at the infant stage. It is submitted that the intention of the petitioners herein against whom serious offences are alleged, is to stifle the investigation.

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6.The learned Public Prosecutor on instructions submits that the investigation so far conducted has revealed that disputes exist between the petitioners who are the building owners and the 3^rd respondent who is the shop owner. The disputes are also the subject matter of various litigation before the Civil Court. It is also submitted that the investigation is being continued duly and diligently and sufficient evidence is to be collected to ascertain the truth.

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Crl.M.C. No. 2990 of 2015 -4-

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7.The legal position is well - settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior Court of the State should refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 of the Code should not be exercised to stifle a legitimate prosecution. Power under Section 482 of the Code is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon facts and circumstances of each case. From the perusal of the materials on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed question of fact, which cannot be adjudicated upon by this

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Crl.M.C. No. 2990 of 2015 -5-

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Court under Section 482 of the Code. At this stage only prima facie case is to be seen in the light of the law laid

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down by Supreme Court in case of R.P. Kapur Vs. State of Punjab (AIR 1960 SC 866), State of Haryana Vs. Bhajan Lal (1992 SCC (Cr) 426), State of Bihar Vs. PP Sharma (1992 SCC (Cr.) 192) and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (2005 SCC (Cr.) 293).

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8.Having regard to the above settled principles, I am of the view that this Court will not be justified in invoking powers under Section 482 of the Code to quash the proceedings at this stage.

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There is no merit in this petition and the same is dismissed.

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Sd/- RAJA VIJAYARAGHAVAN.V., JUDGE

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kp/-8.7.16

Bhuvanachandran v. State of Kerala

Case brief

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Bhuvanachandran v. State of Kerala

Case brief

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