K. A. David and Others v. Thomas Joseph @ Reji and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **FRIDAY, THE 18TH DAY OF JULY 2014/27TH ASHADHA, 1936** ## **Crl.MC.No. 3857 of 2012 () ---------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 2125/2012 of J.M.F.C.-I, CHERTHALA, ALAPPUZHA DISTRICT.** ## **PETITIONER(S)/ACCUSED 1 TO 3 :** **-----------------------------------------------** **1. K .A. DAVID, KOTTAPARAMBIL, ARTHUNKAL P.O., CHERTHALA.** **2. SHELTON DAVID, S/O.DAVID.** - **KOTTAPARAMBIL, ARTHUNKAL P.O., CHERTHALA.** **3. SHINO DAVID, S/O.DAVID. KOTTAPARAMBIL, ARTHUNKAL P.O., CHERTHALA** **BY ADV. SRI.JOBY CYRIAC.** ## **RESPONDENT/COMPLAINANT & STATE :** **--------------------------------------------------------** **1. SRI.THOMAS JOSEPH @ REJI, S/O.JOSEPH KOSHY, LEMAN VILLA, CHERTHALA , VADAKKE VILLAGE, CHERTHALA- 688 532.** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV** **R2 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 3857 of 2012 ()** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **ANNEXURE A1: TRUE COPY OF THE COMPLAINT IN C.C.NO.2125/12 ON THE FILE OF J.F.M.C-1 CHERTHALA.** **ANNEXURE A2: TRUE COPY OF THE SUMMONS RECEIVED BY THE 1ST PETITIONER. ANNEXURE A2(A): TRUE COPY OF THE SUMMONS RECEIVED BY THE 3RD PETITIONER. ANNEXURE A3: TRUE COPY OF THE SWORN STATEMENT OF CW1. ANNEXURE A4: TRUE COPY OF THE SWORN STATEMENT OF CW2.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.3857 of 2012** **-----------------------------------------------Dated this the 18[th] day of July, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioners seek quashment of Annexure A1 complaint whereby they are arraigned as accused 1 to 3 in an offence punishable under Section 379 r/w Section 34 I.P.C. 2. Brief averments are as follows : Defacto complainant is the Power of Attorney holder of one Satheesh, who struck a deal with the accused 1 to 3 to run a hotel. It is the allegation that the accused 1 to 3 (petitioners) suppressed the fact that they created encumbrance with Kerala Financial Corporation ( in short ' K.F.C') and later the agreement with said Satheesh was failed. It is the averment in the complaint that in the meantime Satheesh issued a Power of Attorney to the complainant to run the hotel. The complainant invested more than Rs.10,00,000/- for furnishing the hotel. All on a sudden, the 4[th] accused, Manager of K.F.C and accused 1 to 3 proceeded ## **Crl.M.C No.3857 of 2012 - 2 -** against the property. On 28-11-2010, at about 11.00 a.m, the petitioners with the connivance of the 4[th] accused opened the restaurant in the pretext of cleaning the premises and stole the articles kept in the premises belonged to the complainant. Therefore, he alleges that the accused are guilty of theft. 3. Heard the learned counsel for the petitioners/accused and the learned counsel for the complainant/respondent. 4. Learned counsel for the petitioners submitted that the averments in the complaint, even if accepted in toto, will not make out an offence of theft as defined in Section 378 I.P.C. On 08-02-2005, 2[nd] and 3[rd] accused, who are the owners of the building, issued a licence to one Satheesh to run the hotel. The said Satheesh on 12-05-2006 issued a Power of Attorney in the name of the complainant to carry on the business. The fact that there was a liability outstanding to K.F.C was not known either to Satheesh or to the complainant. On 23-12-2008, K.F.C **Crl.M.C No.3857 of 2012 - 3 -** proceeded against the property and took possession of the building and articles. Learned counsel for the complainant submitted that nowhere in the complaint there is an admission that the articles belonging to the complainant were taken over by K.F.C into possession. According to the learned counsel for the complainant, the complainant has only averred that they took custody of the articles. 5. Per contra, learned counsel for the petitioners submitted that there was a writ petition filed by said Satheesh against K.F.C and the petitioners. Learned Single Judge of this Court passed a judgment in writ petition W.P(C) No.27788/2009 on 22-02-2012. It has been mentioned that the writ petition was filed for a direction to hand over possession of 19 cents of land with a building thereon to Mr.Satheesh as a tenant in order to continue the hotel business. This Court found that the said Satheesh was only a licensee under respondents 3 to 5 **Crl.M.C No.3857 of 2012 - 4 -** (petitioners herein). It is trite that a licensee can never be in possession of the property and the licensee's right is only for use and occupation of the property. Admittedly, the complainant is the Power of Attorney holder of Mr.Satheesh. Therefore, if Mr.Satheesh himself is a licensee, the complainant, who is the Power of Attorney holder, cannot have a better title than the original licensee. Therefore, it cannot be said that the complainant was in possession of the property. The articles were removed with the consent of the 4[th] accused, the Manager of K.F.C, even according to the averments in the complaint. Therefore I find no reason to hold that an offence of theft defined under Section 378 I.P.C had been committed by the petitioners. In order to strengthen the arguments, learned counsel for the petitioners relied on a decision rendered by this court in _**Rajan Babu v. Anitha Chandra Babu ( 2011(3) K.L.T 415)**_ wherein the learned Single Judge of this court after survey **Crl.M.C No.3857 of 2012 - 5 -** of precedents held as follows : _“ 10. “Theft” in this country is an offence against possession, and not title. One of the distinctions between the English law and the Indian law of theft is that the English law looks to ownership while the Indian law looks to possession. As S.378 of the IPC itself indicates, to constitute the offence of 'theft' one should 'take' the movable property “out of the possession of any person” without the consent of that person. In its usual signification the word 'taken' implies a transfer of possession, dominion or control. A thing is not 'taken' unless such a change of status is effected. The expression 'take' when used in relation to a movable property means, “to deprive one of the possession”. Thus, to 'take' the timber, out of the possession of the first respondent, she should have been in 'possession' of it,_ **Crl.M.C No.3857 of 2012 - 6 -** _but she had none. It is immaterial whether petitioners had title over the timber or the land where it stood at the time of its severance or not. The criminal court is not required to adjudicate on rival claims of title claimed by the parties. All that the criminal court has to decide is whether at the time of the alleged incident the property which is the subject matter of theft was in the 'possession' of the complainant and whether it was taken “out of the possession of the complainant with a dishonest intention (See Boddeppalli Lakshmi Narayana v. Suvvari Sanyasi Appa Rao (AIR 1959 A.P. 530). In Shaik Abdul and Another v. Emperor (supra) petitioners were convicted of offences under Ss.144 and 379 of the IPC. Learned Judge observed,_ _“we are not in the present case concerned with the title of either party to the land. What we are concerned with is who were in_ **Crl.M.C No.3857 of 2012 - 7 -** _possession on the day of the occurrence without or without title and who grew the crops in question”. (emphasis supplied) Though referring to S.441 of the IPC which deals with trespass into or upon property in the “possession of another”, the Punjab High Court held in Gurdial Singh v. Abhey Dass (AIR 1967 Pun.244) that “possession” (referred in S.441 of the I.P.C.) must be actual possession of some person other than the alleged trespasser,_ _12. Thus, to commit 'theft' one should have taken the movable property “out of the possession of another”, without the consent of that person. 'Possession' in the context it is used in S.378 of the I.P.C. is actual, physical possession. In the present case whether wrongful or not, the property in question wherefrom trees were served and removed was in the actual, physical possession of petitioners. In the view have_ ## **Crl.M.C No.3857 of 2012 - 8 -** _taken I hold that petitioners who (are alleged to have) removed standing timber from the property in their possession even after the civil court declared title of the first respondent/complainant and allowed her to recover possession of the said property cannot be charged with the offence of 'theft'. If so, on the averments in the complaint no offence of theft is made out. Learned Magistrate while forwarding Annexure-1, complaint to the Police under S.156(3) of the Code has not applied mind to this crucial aspect of the matter. Annexure-1, complaint and Annexure-2, F.I.R. to the extent it concerned offence punishable under S.379 read with S.34 of the I.P.C. cannot stand.”_ Therefore, I find that the criminal prosecution against the petitioners is without any legal basis and it is an abuse of process of the court. **Crl.M.C No.3857 of 2012 - 9 -** In the result, Crl.M.C is allowed. All proceedings pursuant to Annexure A complaint in C.C No.2125/2012 on the file of the Judicial First Class Magistrate Court -I, Cherthala is hereby quashed. All pending interlocutory applications will stand dismissed. amk **Sd/-** //True Copy// **A.HARIPRASAD, JUDGE.** P.A to Judge