Bangalore District Court
Respondent : B.C.Rama Murthy vs B.C.Rama Murthy on 20 January, 2015
IN THE COURT OF THE PRESIDING OFFICER, F.T.C. XV,
BANGALORE
-: PRESENT :-
SRI. SHUKLAKSHA PALAN, B.Com.,LL.M,
PRESIDING OFFICER, FAST TRACK COURT-XV,
BANGALORE
DATED THIS THE 20th DAY OF JANUARY, 2015
CRL. APPEAL. NO.59/2012
Appellant
Respondent : B.C.Rama Murthy,
s/o. B.S.Chandrashekar,
aged about 56 years,
r/at 'Sri Rama Krupa,'
No.104, 4th cross,
Gavipuram Extension,
Bengaluru-560019.
(Reptd by Sri.K.Hanumantharayappa,
Advocate)
v/s
Respondents
Petitioners: K.S.Ravi Kumar, s/o. K.S.Shankaregowda,
Aged about 44 years, C/o. LIC of India,
City Branch, NO.611,
United India Building, J.C.Road,
Bengaluru-560002.
(By Sri.H.G.M. Advocate)
JUDGEMENT
This is an appeal filed by the Appellant against the respondent under section 386(a) and (e) of Cr.P.C. (after amendment). BY aggrieved against the judgment and final order passed by the Ist 2 Crl.A.No.59/2012 A.C.M.M. Court, Bengaluru in C.C.36320/2006 dated 18-11-2011 in acquitting the respondent in this case.
2. The brief facts of the case made out the appellant before the trial court is that he is the owner of the property bearing No.29, Ittamadu, Anjaneya Nagar, Banashankari III Stage, Bengaluru. The respondent is the tenant in the first floor of the said building since 1997. This respondent had locked the main entrance as well as entrance terrace in the first floor where the appellants belongings are kept in a room, thereby had prevented him from entering into the premises to inspect the building and to make use of the belongings kept in terrace. In this regard he had warned the respondent and also instructed the desist from locking the gate and to return the keys of the gate to him, but the respondent did not heeded to him. Herein on 29-01-2004 the respondent trespassed into his office situated in ground floor under the staircase and break open the box put to the switch control box of the borewell which is located inside his office thereby caused loss to him. In this regard, he had filed the complaint before the concerned Magistrate there this respondent appeared and pleaded not guilty. Later on he had adduced his evidence in oral and documentary and the respondent 3 Crl.A.No.59/2012 statement was recorded under section 313 statement, he did not give his oral and documentary evidence, after hearing the case learned Magistrate had given the findings and acquitted the accused for the offence punishable under section 447 and 448 of I.P.C. So he had approached this court by filing this appeal against judgment and final order passed by the learned Magistrate for the under mentioned grounds, they are as follows :
Learned Magistrate has committed error in considering his oral and documentary evidence and acquitted the respondent and his evidence did not consider in the right prospective manner. Even the learned Magistrate did not properly appreciate the evidence of two witnesses examined on his behalf, even though, out of them P.W. 2 is an eye witness to this incident. On the other hand, learned Magistrate has found fault with the evidence of P.W. 2 itself and had acquitted this respondent by drawing adverse inference against him. Hence, judgment and final order found sustainable. It is not justified in giving findings by learned Magistrate by discarding his evidence, even though P.W. 3 is an insurance surveyor and deposed in support of his case, learned Magistrate did not taken into consideration about the photos and other evidence made before the court to show about locking the gate of building belonging to him inspite of the 4 Crl.A.No.59/2012 fact that the respondent has been acquitted. Under these circumstances judgment and final order passed by the learned Magistrate is hereby set aside and the respondent is hereby convicted by this court under section 447 and 448 of I.P.C.
3. After registering this appeal, this court has issued notices on the respondent and appeared through his counsel.
4. Later on the Trial Court records are also summoned and heard the arguments of the learned counsel for the respondent and the appellant has filed written arguments and the citations. Perused the materials on records. Hence, this court has taken into consideration of entire materials on record had raised under mentioned points for determination, they are :
1. Whether the appellant has made out grounds that the learned Magistrate did not properly appreciate the materials on record has acquitted the accused and the said findings is not sustainable?
2. Whether the appellant further established that the judgment and final order by the learned Magistrate is capricious, erroneous opposed to the principles of law 5 Crl.A.No.59/2012 and against the fact and evidence on record, hence, it is required to set aside?
3. What order?
5. After perusal of the material evidence on record and after hearing the learned respondents counsel, this court has answered the above points as follows :
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per final order for the following :
REASONS
6. POINT NO.1 AND 2 : Since both these points are interrelated to each other, they are taken up together for discussion so as to repetition of facts.
7. It is undisputed fact that this appellant is the owner in a building property No.29, Ittamadu, Anjaneya Nagar, Bengaluru. It is also undisputed fact that this respondent was the tenant in the first floor in the same building since 1997. It is the contention urged by the appellant before the trial court that respondent has locked the main entrance as well as entrance going towards terrace in the first 6 Crl.A.No.59/2012 floor thereby he could not used these belongings kept in the home of a terrace. Further on 29-01-2004 the respondent trespassed into his office situated in the ground floor below staircase and break open the box put to the switch control box of the borewell which is also located inside his office and caused loss to him. Accordingly, he had approached the concerned police station, but the concerned Police Station did not taken any action upon his complaint made him to approach jurisdiction Magistrate with his complaint under section 200 Cr.P.C. for the offence punishable under section 447, 450 and 452 of I.P.C. On the other hand, learned Magistrate had taken cognizance of the offence only punishable under section 447 and 448 of I.P.C against this respondent, but after trial learned Magistrate has acquitted this accused. It is not in dispute that this appellant did not challenged the order of taking cognizance by the learned Magistrate only for the offence punishable under section 447 and 448 of I.P.C. Hence, to that extent taking cognizance offence is maintainable.
8. On considering the grounds made out before this court it analyze to this court that the learned Magistrate did not taken into consideration about the available materials evidence on record or 7 Crl.A.No.59/2012 not. Because this appellant is highly aggrieved against the judgment and finding delivered by the learned Magistrate. Hence, this court has once again to analyze the available material evidence along with the facts of this case and require to come to conclusion that whether the findings given by the learned Magistrate is proper and correct of required the interference of this court.
9. First time foremost the contention of the appellant is that this respondent has restrained him by way of locking the main door and the gate going towards terrace of the first floor thereby he did not allowed inspect his building as well as making use of the materials kept in the room situated in the terrace of the first floor and unable to use his office. Secondly, on 29-01-2004 this respondent has trespassed into his office and break open the box in which the switch control board was maintained by him and that switch panel board is required for operating borewell, thereby caused loss to him. But in the complaint it was never stated when the first incident taken place. On the other hand, the private complaint was lodged before the learned Magistrate only on 25-02-2004 i.e., after the second incident on lapse of several days. But the appellant no where explained about the delay in lodging the complaint before the learned 8 Crl.A.No.59/2012 Magistrate. But, it is his explanation is that private complaint filing PCR he had approached the concerned police for taking appropriate action, but the police might have mingled with the respondent did not taken any action, he had filed this private complaint before the learned Magistrate. Hence, it is to be considered to that extent the appellant had explained the delay.
10. Now, it is to be seen that where the material ingredients required under section 447 and 448 of I.P.C are complied by this appellant before the trial court through his oral and documentary evidence. Section 447 of I.P.C is the punishment for criminal trespass and section 448 of I.P.C is the punishment inflicted for house trespass. What are the material ingredients required under section 441 of I.P.C about criminal trespass is to be looked into. The material ingredients of section 441 in criminal trespass is that there should be entry into upon the property in the possession of another, such entry shall be earlier lawful then goes on unlawfully when remaining the such property, such entry are unlawful remaining the property must be within the intention to commit the offence or to intimidate or annoy any person in possession of the property. Here no doubt, the entire building is belongs to the appellant, but this 9 Crl.A.No.59/2012 respondent admittedly tenant in the portion of the said building. So his entry to the said building could not be held as unlawful one. His remaining said building is also could not be held as unlawful since he is tenant under this landlord complainant/appellant. Now it is to be seen that whether the remaining of this respondent in the said building with the intention to commit the offence or not intimidate or annoy this appellant? is the matter for consideration here. When this respondent is admittedly tenant it cannot be said that with the intention to commit an offence he was remaining in this building. On the other hand, it is the first contention of the appellant that this respondent has locked the main entrance of the building thereby restrained the appellant from going towards his terrace and making use of his belongings and office. So absolutely there is no such criminal intention which exists in the very act allegedly made by this respondent. It is proof of the evidence of the complainant itself that while causing such an incident by this respondent he was not present. Under such circumstances it is nothing wrong in findings given by learned Magistrate the very alleged offence committed by the respondent will attract civil proceedings and not criminal trespass. By way of putting such locks to the main gate or gate which is leading upstairs of the building, is nothing but with holding 10 Crl.A.No.59/2012 the appellant moving around his building. So there is totally absent of criminal intention. Hence, on this ground the evidence of the appellant and respondent and his witnesses taken into account. The appellant has made serious allegations upon the trial court for ignoring the material evidence given on his behalf, hence it is to be checked.
11. No doubt, the appellant has supported his case about the locking of the premises by this respondent and also stated about the fact of approaching the police station but they did and any action upon his complaint, made him approach the trial court with the appropriate remedy. About his second contention is also stated about the fact that the respondent had trespassed into his office and break open the box and damaged electrical switches fixed in his office and on the very same day also locked the door of his office with separate chain and lock. He had been cross examined by the learned respondent counsel and he had admitted that the respondent is only using borewell water which is supplied in the said building where he is tenant. So except this borewell water no other water facilities are available to the respondent for his day to day utilization of water. It is also further proved that this respondent 11 Crl.A.No.59/2012 had filed a suit in O.S.No.1092/2004 against him and that suit was decreed against this appellant. In this regard, the judgment marked under Ex.D-1. Ex.D-1 it is proved that the suit filed against this appellant was decreed thereby this appellant has been restrained from causing any interfering in peaceful possession and enjoyment of the suit schedule property by the respondent. It is also proved in the accompanied decree that the suit property is nothing but the property in which the respondent is residing. The judgment was rendered on 10-09-2009 and this complaint has been filed by this appellant during 2007. So after this respondent had moved to civil court when there is dispute in between the appellant and respondent with regard to the property in which the respondent is a tenant. So when there is clear civil court order operating against this appellant how it can be said that there is interference by way of locking the gates etc. by this respondent?
12. It is categorically admitted by the complainant that there is only borewell which is supplying water to the premises of this respondent who is the tenant in the said building. So reason for breaking the switches or panel board of the said pump not hold any water because the respondent may not receive the water supply to 12 Crl.A.No.59/2012 the said premises in case it is damaged. So the intention of the complainant to be gathered here. There is also suggestion to this P.W. 1 by the respondent counsel that, this respondent was insisting him to execute the lease agreement in writing or to repay the advance amount for that this appellant had filed a false suit case against him. Secondly, he is further denied the suggestion put to him that after the judgment in O.S.36320/2006 he had stopped the supply water to the premises of the respondent. But, if there is supply of water the question of breaking the switch board would not arise. Even otherwise there is no proper evidence to the effect that this respondent has broke the switch board of the pump. It is further admitted by him that during the month of July 2005 this respondent had vacated the premises. The payment of sum of Rs.2,80,000/- through cash and cheque by the respondent at the time of getting the premises is admitted by P.W. 1. But the agreement took place between them is of oral one. It is further defence put to P.W. 1 that, with the intention to evict the respondent from the house without payment of the advance amount. This complaint filed but the said defence has been turned down by the appellant. It is in further admission that borewell motor is situated within the office premises of this appellant in his ground 13 Crl.A.No.59/2012 floor and he is residing far away from this place of incident. Such being the case there is chance for inconvenience for respondent for the water supply since it is the alone water supply facility provided to this premises of the respondent. So these admissions of P.W. 1 goes to show that prior to the alleged incident the relationship between them is not at all cordial for one or other reasons. Hence, there is chance for filing any false complaint upon the respondent. Under such circumstances the evidence of P.W. 1 is required to proved if the evidence of any other witnesses then the court has to form some opinion instead of this incident.
13. P.W. 2 Gangadharaiah who is the witness to the alleged incident had spoken that he was present while the respondent locking the premises belongs to the appellant. Then immediately informed the same to the appellant and the next day the appellant filed the complaint. Why the delay taken place? In his cross- examination P.W. 2 admitted that you do not know anything about the difference of opinion in between the appellant and respondent about financial matters. He further admitted that the water reading meter of the borewell is within the premises of the appellant. But the witness admitted that he is also having small portion in the said 14 Crl.A.No.59/2012 premises on rent and on sharing basis and the relationship between him and the appellant is cordial. Under such circumstances, the witness has to support the case of the appellant. So it is established from the mouth of P.W. 2 also that the relationship between the appellant and the respondent is not cordial even prior to the alleged incident.
14. P.W. 3 is a formal witness who is the photographer to the incident taken the photographs and produced to the court. He took photograph of the manner of locking the gates and also found that this respondent was present at the time of snatching the photos. But, in the cross-examination he admitted that he is having acquitance with this appellant since they are doing share business together. So the witness also not be categorized like independent eye witness like P.W. 2. Under such circumstances this court feels that the evidence of P.W. 1 to P.W. 3 is not at all sufficient to bring out guilt against the respondent. On the other hand, since there is dispute in between the appellant and respondent even prior to this incident, hence, there is chance to take undue advantage of the same by the appellant.
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15. Now this court has gone through the findings given by the leaned Magistrate. It is the observation made by learned Magistrate in page No.9 of the judgment, admittedly at the time of incident the complainant was not present. But, his tenant was present who is examined as P.W. 2. He further observed that from the evidence of P.W. 2 that there was a dispute in between the complainant and accused regarding vacating the tenant, switch board for supply the water to the first floor is in the shop of P.W. 2 and in it appellant is also sharing the office. It is further observed by the learned Magistrate that the evidence of complainant is totally against the evidence of P.W. 2 hence, the learned Magistrate also did not inspired confidence about the case made out by the appellant as well as the evidence of P.W. 1 and P.W. 2. It is his further observation made that since there is dispute regarding the tenancy is concerned it will attract civil jurisdiction had also highlighted about the filing of the suit by this appellant. In total it is also finding of the learned Magistrate that the material ingredient required under section 447 and 448 of I.P.C is not attracted from the material evidence on record. This court feels that the said findings given by the learned Magistrate not require interference of this court also, since reason is already assigned above.
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16. The respondent is not at all total stranger to the complainant, admittedly he was a tenant in the first floor of the building belonged to the appellant, such being the case how he can lock the main entrance since he has also gone outside during the day time. In case it was locked by him then will attract the civil proceedings since there is no criminal intention to commit any offence as alleged by the complainant upon him. Under such circumstances, this court clearly feel that in the judgment and order rendered by the learned Magistrate is holds good and do not require interference of the same. Hence, the above points are answered in the NEGATIVE.
17. POINT NO.3 : For the foregoing reasons, I proceed to pass the following;
ORDER The appeal filed by the appellant against the judgment and order in C.C.36320/2006 dated 18- 11-2011 on the file of I A.C.M.M., Bengaluru is hereby dismissed and the trial court judgment and order is confirmed.
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Crl.A.No.59/2012 Send the copy of the judgment to the trial court.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in open Court on this the 20th day of January, 2015) (SHUKLAKSHA PALAN) PRESIDING OFFICER, FAST TRACK COURT-XV, BANGALORE.
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Crl.A.No.59/2012 20-01-2015 Judgment pronounced in open court, vide separate order.
ORDER The appeal filed by the appellant against the judgment and order in C.C.36320/2006 dated 18-11- 2011 on the file of I A.C.M.M., Bengaluru is hereby dismissed and the trial court judgment and order is confirmed.
Send the copy of the judgment to the trial court.
(SHUKLAKSHA PALAN), PRESIDING OFFICER, FAST TRACK COURT-XV, BANGALORE.