Kerala High Court
Leela N vs Rameshkumar on 16 June, 2025
2025:KER:42586
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
CRL.A NO. 226 OF 2016
AGAINST THE JUDGMENT DATED 11.02.2016 IN Crl.L.P. NO.37 OF
2016 OF HIGH COURT OF KERALA ARISING OUT OF THE JUDGMENT DATED
06.09.2011 IN CC NO.838/2009 OF JUDICIAL MAGISTRATE OF FIRST
CLASS, CHITTUR
APPELLANT/COMPLAINANT:
LEELA N.,
D/O NARAYANAN, MAMBALLAM BUNGALOW, MUTHALAMADA PO,
CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENTS/ACCUSED & NON-PARTY:
1 RAMESHKUMAR,
S/O RAMCHANDRAN, KESAVA NIVAS, KINAVALLUR
PARALI PO, PALAKKAD DISTRICT - 678 501.
2 VASUDEVAN,
S/O NARAYANAN, CHANNATHODI VEEDU, IDAYUR PO, IDAYUR,
THIRUR, MALAPPURAM DIST.
3 SIDHARDHAN
S/O SUKUMARAN, THALAPOTTA VEEDU, KINAVALLUR, PARALI
PO, PALAKKAD DIST - 678 501.
CRL.A NO. 226 OF 2016
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2025:KER:42586
4 STATE OF KERALA,
REP.BY SUB INSEPCTOR OF POLICE, KOLLENGODE
POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SRI.K.ANAND
SRI.ROY CHACKO
SHRI.JACOB SEBASTIAN
SMT.C.SEENA, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A NO. 226 OF 2016
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2025:KER:42586
JUDGMENT
This appeal has been filed challenging the judgment in C.C No.838/2009 on the file of the Judicial First Class Magistrate Court, Chittur. C.C No.838/2009 was a private complaint filed by the appellant herein alleging commission of offences under Sections 447, 448 and 427 read with Section 34 of the Indian Penal Code.
2. The brief facts leading to the institution of the private complaint are as follows:-
According to the appellant/complainant (hereinafter referred to as the complainant), she had in her possession 37 cents of land with a house therein. The property belonged to the husband of the complainant, and the complainant was in possession of the property after an agreement for sale had been entered into between the complainant and her husband. The said property is situated within the jurisdiction of Muthalamada Grama Panchayat, and the building had been leased out in favour of one Ashokkumar for running a toddy shop. However, at the relevant time (15.01.2008), the said Ashokkumar had vacated the premises and had shifted his toddy shop to another building. It was alleged that certain furniture and CRL.A NO. 226 OF 2016 4 2025:KER:42586 other materials belonging to Ashokkumar were still stored in the building in question. It is alleged that on 15.01.2008 at about 06.00 A.M, respondents 1 to 3 (accused 1 to 3) illegally and in an act of trespass entered the property and used a J.C.B bearing registration No.KL-10U 3588 and without the consent of the complainant demolished the building. According to the complainant, she suffered damages to the tune of Rs. 1,50,000/-. The incident was witnessed by witnesses examined on behalf of the complainant. Though the complainant filed a complaint before the police, without conducting a proper investigation, the Police filed a report referring the complaint. Therefore, the complainant proceeded to file a private complaint (in protest). On the side of the complainant, PWs 1 to 6 were examined, and Exts.P1 to P7 documents were marked. The 1 st accused examined himself as DW1, and Exts.D1 to D3 documents were marked for the accused. The trial Court framed the following points for consideration:-
"(1) Whether the Al to 3 in furtherence of their common intention committed criminal trespass and house trespass to the property and house of PW1, the complainant and also committed acts of mischief by destroying the building therein as alleged by the CRL.A NO. 226 OF 2016 5 2025:KER:42586 complainant?
(2) Whether Al to 3 are guilty of the offence charged against them ?
(3) If so, what should be the proper sentence to be imposed on them ?"
While considering point Nos.1 and 2, the trial Court came to the conclusion that accused No.1 had became the owner of the property under a registered sale deed executed by the husband of the complainant as document No.1389/2005 of S.R.O Kollengode and that the sale was after obtaining permission of the Court before which O.S.No.134/2005 was pending at the instance of the complainant seeking specific performance of an agreement dated 31.12.2004 (Ext.P3) through which the husband of the complainant had agreed to sell the property to the complainant. The trial Court also found that the 1st accused after obtaining title over the property through document No.1389/2005 of S.R.O Kollengode had transferred the property to the 2nd accused and, therefore, they are not strangers to the property and thus, it cannot be said that they had committed any offence as alleged by the complainant. In other words, the trial Court found that in the background of the aforesaid CRL.A NO. 226 OF 2016 6 2025:KER:42586 facts, there cannot be a case of criminal trespass or mischief causing damage and therefore, acquitted the accused under Section 255(1) of the Cr.P.C.
3. Sri. Sajan Vargheese, the learned counsel for the complainant submits that the subject property belonged to the husband of the complainant, one Sivadasan. It is submitted that by Ext.P3 document dated 31.12.2004, the appellant's husband had agreed to sell the property to the appellant for a consideration of Rs.3.5 lakhs. It is submitted that on the date of signing Ext.P3, an amount of Rs.3,00,000/- had been paid by the appellant to her husband and possession of the building was also handed over to her. It is submitted that the appellant continued to receive rent from PW2 Ashokkumar, and the possession of the land and building was always with the appellant. It is submitted that the order of the Sub Court, Palakkad in O.S.No.134/2005 (Ext.D1) is not a permission for sale of the property by Sivadasan and was only an order which directed that if Sivadasan were to sell the property, the sale proceeds will be deposited in Court. It is submitted that if the possession of the property was still with the appellant even after the CRL.A NO. 226 OF 2016 7 2025:KER:42586 execution of the sale deed in favour of the 1 st accused by Sivadasan, such possession could not have been disturbed except in accordance with the law and therefore, the act of accused Nos.1 to 3 in entering into the property, demolishing the building and causing damage amounts to commission of offences under Sections 447, 448 and 427 of the Indian Penal Code. It is submitted that the finding of the trial Court that permission had been granted by the Sub Court, Palakkad in O.S.No.134/2005 to effect sale of the property in favour of the 1st accused cannot be sustained in law. It is submitted that the trial Court wrongly assumed that since there was a sale deed executed by Sivadasan in favour of accused No.1, none of the offences alleged had been made out. It is submitted that the appellant has produced certain additional documents before this Court by filing a petition under Section 391 of the Cr.P.C corresponding to Section 432 of the Bharatiya Nagarik Suraksha Sanhita. It is submitted that one of the documents produced before this Court is a letter issued by the Tahsildar (L.R), Chittur, which indicates that he had refused mutation in favour of accused No.2 on account of the disputes between the appellant and the respondents CRL.A NO. 226 OF 2016 8 2025:KER:42586 herein. It is submitted that the act of trespass and the fact that the building had been demolished are accepted by the trial Court as having been proved through the deposition of the witnesses on behalf of the complainant and the Commission Report in O.S.No.134/2005. It is submitted that, having found that respondents 1 to 3 had entered the property and had demolished the building, the trial Court ought to have found them guilty of the offences alleged against them.
4. Sri. Roy Chacko, the learned counsel appearing for the 2nd respondent vehemently contends that the suit filed by the appellant for specific performance of the agreement dated 31.12.2004 had been dismissed by the Subordinate Judge's Court, Palakkad and the only relief granted was a return of the advance money allegedly paid by the appellant to her husband Sivadasan as mentioned in Ext.P3 document. It is submitted that though the Subordinate Judge's Court found that Ext.P3 document was a valid agreement, the Court, in its discretion, did not grant a decree of specific performance. It is submitted that the registered document executed by the husband of the appellant in favour of accused No.1 CRL.A NO. 226 OF 2016 9 2025:KER:42586 clearly states that possession of the property has been handed over to accused No.1. It is submitted that accused No.2 subsequently obtained the property by way of registered deed from accused No.1. It is submitted that the appellant had not taken steps to set aside the documents executed by her husband Sivadasan in favour of accused No.1 as also the document executed by accused No.1 in favour of accused No.2. It is submitted that the order of the Subordinate Judge's Court in O.S.No.134/2005 permitting the sale of the property was also not challenged by the appellant. It is submitted that in such circumstances, the respondents cannot be accused of having committed any criminal offence. It is submitted that penal statutes are to be construed strictly, and unless this Court were to find that the offences had been committed, a dispute of this nature cannot be criminalised by setting the criminal law in motion.
5. Sri. Jacob Sebastian, the learned counsel appearing for the 1st respondent, supports the contentions taken by the learned counsel appearing for the 2nd respondent. There is no appearance for the 3rd respondent.
6. The learned counsel appearing for the appellant would CRL.A NO. 226 OF 2016 10 2025:KER:42586 submit in reply that the fact that the document executed by Sivadasan in favour of the 1st accused and the document executed by the 1st accused in favour of the 2nd accused was not challenged, is not of any avail to the respondents as those documents would be hit by the principle of lis pendens as the suit filed by the appellant for specific performance was pending on the date on which both those documents were executed.
7. Having heard the learned counsel appearing for the appellant and the learned counsel appearing for respondents 1 and 2, I am of the view that the appellant has not made out any case for interference with the judgment in C.C.No.838/2009. The trial Court had correctly appreciated the facts and has come to the conclusion that the respondents/accused are entitled to be acquitted of the offences alleged under Sections 427, 447 and 448 r/w Section 34 of the Indian Penal Code. Admittedly, the property in question belonged absolutely to the husband of the appellant (Sivadasan). The appellant claims on the strength of an agreement executed on 31.12.2004 that there was an agreement executed between her husband and herself that the property in question would be sold to CRL.A NO. 226 OF 2016 11 2025:KER:42586 the appellant for a sum of Rs.3.5 lakhs. It is also the case of the appellant that after receiving a sum of Rs.3 lakhs, possession of the property had been handed over to her by her husband. However, in the same breath the appellant also says that the property was in the possession of PW2 (Ashokkumar) who was running a toddy shop in the premises in question. Though the trial Court has concluded that the fact that accused Nos.1 to 3 had entered the property on 15.01.2008 and had demolished the building thereon had been proved, the fact remains that by registered document No.1389/2005 of SRO Kollengode dated 23.04.2005 Sivadasan had transferred the property to the 1st accused. It also cannot be disputed that an Interlocutory Application had been filed by the 1 st respondent/accused No.1 and the Subordinate Judge's Court, Palakkad had ordered that if any sale of the property was held pending the suit, the consideration shall be deposited in Court. The appellant/complainant did not challenge that order. Though the learned counsel for the appellant may be right in contending that the order by itself was not a permission for sale, the fact remains that the appellant/complainant took no steps to see that the CRL.A NO. 226 OF 2016 12 2025:KER:42586 property was not alienated pending final disposal of O.S.No.134/2005. As rightly pointed out by the learned counsel appearing for the respondents 1 and 2 / accused 1 and 2, the penal law has to be construed strictly and unless it could be proved beyond reasonable doubt that the respondents/ accused 1 to 3 had committed offence alleged against them, they cannot be convicted of the offences alleged against them. As already noticed, the offences alleged are under Sections 427, 447 and 448 of the Indian Penal Code. Section 427 of the Indian Penal Code is an offence of mischief causing damage to the amount of Rs.50/-. Section 447 of the Indian Penal Code is punishment for criminal trespass and Section 448 is punishment for house trespass. Section 441 of the of the Indian Penal Code defines criminal trespass in the following manner:-
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"."
CRL.A NO. 226 OF 2016 13 2025:KER:42586 Section 442 of the of the Indian Penal Code defines house trespass in the following manner:-
"442. House-trespass.--Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass"."
On the admitted facts, I am unable to conclude that the offence of house trespass has been committed by the respondents / accused as it is the specific case of the appellant / complainant that the premises were not under the occupation of PW2. The appellant herself was not residing in the property though there is a contention that there were certain belongings of PW2 stored in the premises, there is no independent evidence of any such property being available in the building which was demolished by the respondents / accused 1 to 3. Though there is a contention that there were certain belongings of PW2 stored in the premises, there is no independent evidence of any such property being available in the building which was demolished by respondents/accused Nos.1 to 3.
Coming to the offence of criminal trespass, it is clear from the CRL.A NO. 226 OF 2016 14 2025:KER:42586 reading of Section 441 of the Indian Penal Code, an offence of criminal trespass is committed when someone enters into property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence. In the facts of the present case, it is clear that it is the specific case of the accused persons that the property in question had come into the possession and ownership of accused No.1 on account of a sale deed executed by Sivadasan (husband of the appellant/complainant) and the said property had thereafter been assigned by the 1 st respondent /accused No.1 to 2nd respondent/accused No.2. Thus, according to the respondents/accused Nos.1 to 3, they had entered into the property on the belief that they had absolute title and interest in the property. Therefore, their act of entering into the property and demolishing the building situated thereon cannot be said to be an act constituting the offence of criminal trespass. The fact that the 2nd respondent/2nd accused has not been able to mutate CRL.A NO. 226 OF 2016 15 2025:KER:42586 the property in his name and the fact that an appeal is pending against the judgment and decree in O.S.No.134/2005 on the file of the Additional Subordinate Judge's Court, Palakkad does not compel me to take a different view.
The appeal will, therefore, stand dismissed.
Sd/-
GOPINATH P. JUDGE AMG/DK/acd CRL.A NO. 226 OF 2016 16 2025:KER:42586 APPENDIX OF CRL.A 226/2016 PETITIONER ANNEXURES Annexure A TRUE COPY OF THE COMMUNICATION DATED 19-10-2023 MADE BY THE TAHSILDAR (LAND RECORDS), CHITTUR TO THE 2ND RESPONDENT.
Annexure B TRUE COPY OF THE BASIC TAX RECEIPT
ISSUED ON 06-01-2020 BY THE VILLAGE
OFFICER, MUTHALAMADA -I VILLAGE.
Annexure C TRUE COPY OF THE BASIC TAX RECEIPT
ISSUED ON 22-04-2020 BY THE VILLAGE
OFFICER, MUTHALAMADA -I VILLAGE.
Annexure D TRUE COPY OF THE BASIC TAX RECEIPT
ISSUED ON 19-04-2021 BY THE VILLAGE
OFFICER, MUTHALAMADA -I VILLAGE.
Annexure E TRUE COPY OF THE BASIC TAX RECEIPT
ISSUED ON 06-04-2022 BY THE VILLAGE
OFFICER, MUTHALAMADA -I VILLAGE.