Jayanthakumar vs State Represented By
2021 Latest Caselaw 14923 Mad

                                                                      CRL.A.No. 548 f 2019


                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                             DATED : 27.07.2021

                                                   CORAM:

                                   THE HON'BLE MR.JUSTICE P.VELMURUGAN

                                            CRL.A.No.548 of 2019
                                                     and
                                            Crl.M.P.No.6646 of 2021


                     Jayanthakumar
                     S/o, Sarangapani                                   ... Appellant

                                                   Versus

                     1. State represented by
                        The Inspector of Police,
                        Karimangalam Police Station,
                        Karimangalam.

                     2. Manoharan
                        S/o Raman

                     3. Dilipkumar
                        S/o, Manoharan

                     4. Dineshkumar
                        S/o, Manoharan                                ... Respondents




                     Page No.1 of 14


https://www.mhc.tn.gov.in/judis/
                                                                                CRL.A.No. 548 f 2019


                     PRAYER:

                                       Criminal Appeal filed under Section 372 of the Code of

                     Criminal Procedure,to allow the appeal, set aside the judgment dated

                     27.06.2019 passed by the learned Principal Sessions Judge, Dharmapuri

                     in S.C.No.48 of 2017 and convict the respondents 2 to 4/Accused 1 to 3.



                                       For Appellant    : Mr.A.Arun Anbumani

                                       For R1           : Mr.S.Sugendran
                                                          Government Advocate, (Criminal Side)

                                       For R2           : M/s.P.Chandrasekar

                                       For R3 & R4      : Notice served

                                                        *****


                                                       JUDGEMENT

Challenge in this Criminal Appeal is made against the the

judgment dated 27.06.2019 passed by the learned Principal Sessions

Judge, Dharmapuri in S.C.No.48 of 2017.

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2. The appellant is the defacto complainant in case in Crime No.64

of 2014 on the file of the first respondent police. The first respondent

police registered a case against the respondents No.2 to 4 for the offences

under sections 447, 294(b), 506(ii) and section 3(1) of TNPPDL Act.

After investigation, laid a charge sheet before the Judicial Magistrate,

Palacode. The learned Magistrate taken the charge sheet on file in

P.R.C.No.3 of 2017 and committed the case to the Principal Sessions

Judge, Dharmapuri, since the offences are exclusively triable by the

Court of Sessions. The learned Principal Sessions Judge taken the case

on file and after completing the formalities framed the charges against

the respondents 2 to 4/accused for the offences under section 447, 294(b)

506(ii) IPC and also section 3(1) of TNPPDL Act.

3. After framing charge, in order to prove the case of the

prosecution on the side of the prosecution, as many as 7 witnesses were

examined as P.Ws.1 to 7 and seven documents were marked as Exs.P1 to

P7. Besides that one material object M.O.1 was also marked.

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4. After completing the examination of the prosecution witnesses,

an incriminating circumstances culled out from the evidence of the

prosecution witnesses put before the accused by questioning under

section 313 Crpc. They denying the same as false and pleaded not guilty.

On the side of the defence, no oral and documentary evidence was

produced.

5. After hearing of the arguments advanced on either side,

considered the materials, the trial court acquitted the respondents 2 to 4.

Challenging the said judgment of acquittal, the defacto complainant has

filed the present appeal before this Court.

6. The learned counsel for the appellant submitted that the

appellant purchased the property from the respondents 2 to 4 by a sale

deed dated 11.11.2005, for a valid consideration of Rs.4,50,000/- and all

the patta, all the electricity charges and other revenue records were

transferred in the name of the appellant and taken the possession and

enjoying the property by letting out the shops to the tenants. When the

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tenants were in possession, the respondents threatened the tenants to

vacate the shops and also threatened the appellant to hand over the

property to the private respondents. Since they could not succeed it and

in the absence of the appellant ie., when the appellant was not in native

and when he was in out of station at that time ie., on 11.03.2014 at about

10 'o clock, the private respondents using the JCB shown in M.O.1

dismantled the shops which was purchased by the appellant from the

private respondents. The brother of the appellant informed the same to

the appellant and after came to the native, the appellant filed the

complaint before the first respondent police on 14.03.2014 in Crime

No.64/2014 for the offences under section 294(b), 341, 447, 506(ii) and

also under section 3(1) of TNPPDL Act. The appellant was examined as

P.W.1, he has clearly narrated the averments made in the complaint and

he has examined the other witnesses and proved his case beyond

reasonable doubt. However, during cross examination, the defence

counsel raised the plea of defence that no original document was

produced and there is no tenant particulars were given, since he has not

purchased the property.

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7. Further the learned counsel for the appellant would submit that

the learned trial judge failed to appreciate the evidence of P.W.1 and

simply dismissed the petition on the ground that he has not produced any

documents. Even in the complaint Ex.P1, he annexed the copy of the

sale deed and also the tax receipt and the electricity consumption receipt,

patta and chitta and also he filed the mortgage document to show that the

abovesaid originals were deposited before the Union Bank of India,

Thiruvannamalai, along with the photostat copy of the documents.

However the Investigating Officer unfortunately has not marked those

documents in the court. If at all, they asked the original documents at

the time of trial or they would have taken the summon from the court to

produce those documents. Without taking any steps they completed the

trial. Therefore the trial court failed to appreciate that even in the

complaint itself these documents were produced before it. The court also

would have exercise his power to call for the documents either from the

bank or opportunity would have given to the appellant to get those

documents and it should have compared with originals. Without doing

the same, just come to the conclusion. He failed to observe the other

https://www.mhc.tn.gov.in/judis/ CRL.A.No. 548 f 2019

existence of the shops and subsequent damages and therefore the

appellant constrained to file the petition in Crl.M.P.No.6646 of 2019.

under section 391 r/w 482 Crpc. The opportunity must be given to the

appellant. The non production of these documents during the trial is

beyond the control of the appellant. Neither the I.O nor the Prosecutor

guided the appellant to produce the documents. Even otherwise in the

interest of justice,the court ought to have summoned the documents and

found out the truth. Neither the first respondent guided the appellant to

bring the documents nor the appellate court to exercise its jurisdiction.

The trial court is erroneously passed the judgment that the ownership,

existence of building and the demolition is also not proved. Therefore

the petition under section 491Crpc in Crl. M.P.No.6646 of 2019 would

be allowed and the order passed by the trial court is liable to be setaside.

8. The learned counsel for the private respondents 2 to 4 would

submit that the prosecution has not proved the case that the appellant is

the owner of the property and the appellant was in the possession of the

property at the relevant point of time and the private respondents only

https://www.mhc.tn.gov.in/judis/ CRL.A.No. 548 f 2019

damaged the property. Since they have not proved the case beyond

reasonable doubt and no document was produced, the trial court rightly

dismissed the case of the prosecution and acquitted the respondents 2 to

4. Hence there is no merit in the appeal. Further he submitted that there

was a delay in filing the complaint.

9. Further, the learned counsel for the private respondents 2 to 4

would submit since at the time of trial, the documents were very much

available with the appellant, the appellant has not taken any opportunity

during the trial to file the document, now they cannot invoke section 391

Crpc to fill up the lacunae. It is the case of the appellant that at the time

of trial, he is not aware of the whereabouts of the original documents and

it is for the appellant to mark those documents when he was examined as

P.W.1 and since he is not in possession that he is not the owner, he did

not file the documents. Now only to fill up the lacunae, he is invoking

section 391 Crpc, it cannot be entertained. The trial court rightly

observed and dismissed the prosecution case and find there is no merit in

the appeal and hence the appeal is liable to be dismissed.

https://www.mhc.tn.gov.in/judis/ CRL.A.No. 548 f 2019

10. The learned Government Advocate would submit that whatever

the documents the appellant produced, they produced the same.

However at the time of trial though the appellant has not produced the

documents, during the cross examination itself the private respondents

accepted the ownership. The trial court failed to consider the same and

only rejected the prosecution case only on technical ground because of

not marking the documents. They are ready to follow the directions of

this Court.

11. Heard the learned counsel on either side and perused the

records.

12. The case of the prosecution is that the appellant purchased the

property from the respondents 2 to 4 by a sale deed dated 11.11.2005, for

a valid consideration of Rs.4,50,000/- and taken the possession and

enjoying the property by letting out the shops to the tenants. When the

tenants were in possession, the respondents had intention to get back the

shops, threatened the tenants to vacate the shops and also threatened the

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appellant to hand over the property. Since they could not succeed it and

in the absence of the appellant, they dismantled the shops . Hence, he

filed the complaint before the first respondent police

13. This Court is the appellate court, final court of fact finding

appreciated the entire evidence in accordance with law. The trial court

framed the charges against the private respondents for the offences under

section 447, 294(b), 506(ii) and 3(1) of TNPPDL Act.

14. In order to substantiate the case, on the side of the prosecution

totally 7 witnesses were examined and seven documents were marked.

One material object was also marked. In order to substantiate the

charges, the appellant himself was examined as P.W.1 and he has clearly

deposed that he purchased the property from the private respondents vide

sale deed dated 11.11.2005 and also all the property tax transferred in the

name of the appellant and also the E.B service connection and other

patta, chitta also transferred and stands in the name of the appellant, and

https://www.mhc.tn.gov.in/judis/ CRL.A.No. 548 f 2019

subsequently he has also deposed that he purchased the property for a

sum of Rs.4,50,000/- . He also stated that he purchased the shops and he

let-out the building to the tenants since the private respondents disturbed

the tenants, they vacated them and in the absence of the appellant they

demolished. Therefore he preferred the complaint after returned from the

native.

15. The learned counsel for the private respondents submit that

there was a delay in filing the complaint. But the appellant himself stated

that since he was not in station at the time of occurrence and only he was

informed by his brother and also he taken the photographs through his

cell phone about the demolition, he come to know about the occurrence.

During the cross examination the defence counsel only put a suggestion

before him that the original documents were not produced, so that the

appellant was not the owner of the property. The trial court also made

observation that the prosecution has not proved the ownership, existence

of the shop and dismantling of the shops. Therefore the documents

produced in Crl.M.P.6646 of 2021 ie copy of the sale deed, property tax

https://www.mhc.tn.gov.in/judis/ CRL.A.No. 548 f 2019

receipts, patta and chitta adanganl, copy of the memorandum of deposit

on title deeds and photographs are necessarily to be bring before the trial

court. If the trial judge actively participated in the trial he would have

very much asked either the I.O to collect and mark the copy of the

documents or otherwise the court itself summoned the documents from

the bank and mark the copy of the documents. Therefore neither the I.O

nor the prosecutor acted diligently and the trial court also not actively

participated in the trial and subsequently found fault that the prosecution

has not proved the case, whereas the defacto complainant / appellant is

an innocent and he has very much brought all the grievances by way of

complaint to the first respondent police, but unfortunately neither the I.O

nor the Judge have acted diligently. Therefore the appellant is suffered

very much with the impugned judgment. Therefore in the interest of

justice and to meet the ends of justice this Court is inclined to setaside

the judgment of the trial court. Accordingly the judgment dated

27.06.2019 passed by the learned Principal Sessions Judge, Dharmapuri

in S.C.No.48 of 2017 is setaside and the case is remitted back to the trial

court. Crl.M.P.No.6646 of 2021 is allowed.

https://www.mhc.tn.gov.in/judis/ CRL.A.No. 548 f 2019

16. The petitioner in Crl.M.P.No.6646 of 2021 is directed to

produce all the documents before the trial court and the trial court is

directed to mark the copies of the documents after comparing with the

originals and the same shall be returned to the appellant and opportunity

should be given to the defence counsel for cross examination. After

completing these proceedings in day today basis, directed to complete the

trial within three months and dispose of the case in S.C.No.48 of 2017.

17. With the above directions, the Criminal Appeal is disposed of.

27.07.2021 ( 1/2 )

Index: Yes/No Internet: Yes/No mfa

https://www.mhc.tn.gov.in/judis/ CRL.A.No. 548 f 2019

P.VELMURUGAN, J.

mfa

To

1. The Principal Sessions Judge, Dharmapuri.

2. The Inspector of Police, Karimangalam Police Station, Karimangalam.

3. The Public Prosecutor, High Court, Madras.

CRL.A.No.548 of 2019

27.07.2021

https://www.mhc.tn.gov.in/judis/