IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.998/2016 BETWEEN 1. MR. YADHAV KOTIAN, S/O NEMU POOJARY, AGED ABOUT 52 YEARS, PROPRIETOR, M/S DIVYA ROOPA EARTH MOVERS, SUB-CONTRACTOR ENGAGED BY M/S KOYA AND CO., CONSTRUCTIONS PVT. LTD., R/AT PERMUDE, KANNIKANILAYA, BAJPE, MANGALORE - 575 001.
2. MR. SUKUMAR M D AGED ABOUT 40 YEARS, S/O RAMESH, R/A PERMUDE, KANNIKANILAYA, BAJPE, MANGALORE - 575 001.
C/O DIVYA ROOPA EARTH MOVERS, SUB-CONTRACTOR ENGAGED BY M/S KOYA AND CO., CONSTRUCTIONS PVT. LTD., ... PETITIONERS (BY SMT. MAMATHA ROY, ADV. FOR SRI ROHIT URS D, ADV.) AND SRI RAVIDRANATHA BAJPE, S/O LATE KOCHAPPA DEVADIGA, AGED ABOUT 68 YEARS, R/AT KALLODY, MALAVOOR VILLAGE, MANGALORE TALUK - 575 001. ... RESPONDENT (BY SRI SACHIN B.S, ADV.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED 24.09.2013 PASSED BY THE II ADDL J.M.F.C., MANGALORE IN PCR NO.119/2013 FOR REGISTERING A CRIMINAL CASE AS AGAINST THE PETITIONERS FOR THE OFFENCES P/U/S 427,447,506 AND 120(B) R/W 34 OF IPC IN C.C.NO.3185/2013 AND ISSUING SUMMONS TO THE PETITIONERS CONSEQUENTLY QUASHING FURTHER PROCEEDINGS AGAINST THESE PETITIONER IN THE SAID CASE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In a private complaint filed by respondent herein, the learned Magistrate took cognizance of offences under Sections 406, 418, 420, 427, 447, 506 and 120-B read with Section 34 of IPC and issued summons to the petitioners.
Accused nos. 1 to 9 challenged the said order before the I Addl.District and Sessions Judge, DK, Mangalore in Criminal Review Petition Nos.244/13 & 245/13 and by order dated 7.4.2014, Cr.R.P 244/13 came to be allowed and Cr.RP 245/13 was allowed in-part and the proceedings initiated against accused nos. 1 to 8 were set aside and issuance of process against accused no.9 was confirmed.
2. The petitioners herein have directly approached this Court under Section 482 of Cr.PC seeking to quash the entire proceedings initiated against them. Petitioner no.1 (accused no.10) was Sub-contractor and petitioner no.2 (accused no.11) was a worker engaged by accused no.10. The case of the complainant is that accused no.1 was engaged in laying a pipeline by the side of Mangalore-Bajpe old Airport road abutting his schedule properties. According to the complainant, accused persons conspired with each other with the common intention to lay the water supply pipe line beneath the property of respondent and in furtherance of such conspiracy, trespassed into the property of respondent and demolished the compound wall of 7 feet height with 3 feet foundation beneath the ground to the extent of 500 meters and also cut and destroyed about 100 valuable trees and laid the pipe line beneath the schedule property to an extent of 500 meters. It is the further grievance of the complainant that, on account of the above acts of mischief committed by the petitioners, he has been subjected to loss to the tune of more than 27 lakhs and he has not been able to cultivate his land due to threat of stray cattle and animals straying into the properties.
3. Learned counsel for the petitioners submits that main accusations were directed against accused nos. 1 to 8 who have been discharged by this Court of the charges laid against them, whereas, the petitioners herein were only sub-contractor and an employee working under the sub- contractor therefore, criminal liability cannot be fastened on the petitioners. Further, she submits that in respect of the same matter, complainant had lodged a complaint against accused no.1 and others and during investigation, accused no.5 Sri Padmanabha of Mangalore Special Economic Zone Ltd. gave an undertaking before the Court to make good the loss if any caused to the complainant.
4. Learned SPP-2 appearing for respondent-State has disputed the above submissions and referring to the contents of the private complaint, has emphasized that there are specific allegations of trespass into the property of the complainant and damage to the compound wall and standing trees. Further it is pointed out that the Sessions Court while acquitting accused nos.1 to 8 of the charges, has held that there is case to proceed against the petitioners.
5. I have considered the submissions of the learned counsel appearing for the parties and gone through the statement of the complainant.
6. The gravamen of the charges against the petitioners is that, while laying the pipeline, the petitioners intentionally damaged the compound wall of 7 ft. height and also damaged the properties of the complainant without authority of law. Pipeline was laid in the private property of the complainant. Whether the said act/s was committed by the petitioners with criminal intention or at the behest of accused nos. 1 to 8 or the Mangalore SEZ could be decided only during the trial. Since there are specific allegations that damage was caused to the properties of the complainant and there was unlawful tress-pass into his properties, proceedings cannot be quashed at this stage. Contentions urged by the petitioners are matters of defence. The very fact that at the earlier instance an undertaking was given by the Engineer of SEZ itself would indicate that such an incident has taken place as alleged in the complaint. Whether the said act was committed with an intention to cause loss or damage to the complainant and the said act amounts to mischief and criminal trespass could be dealt with only during the trial. Therefore, I do not find any reason to quash the proceedings.
Consequently, the petition is dismissed.
Sd/- JUDGE Sk/- CT-HR