Rajalakshmi Ammal and Beena Krishnamoorthy v. State of Kerala and George Thomas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935 Crl.MC.No. 3178 of 2009 ( ) ------------------------------------ AGAINST THE ORDER/JUDGMENT IN CC 435/2009 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT.-I, ALAPPUZHA PETITIONER/ACCUSED: -------------------------------- 1. RAJALAKSHMI AMMAL, W/O.LATE RADHAKRISHNA REDDIAR, OF RAJAGOPALA MANDIRAM, MULLACKAL, ALAPPUZHA, NOW RESIDING AT ALBERTA AVENUE, MECHANICS BURG, P-A-17050, U.S.A. 2. BEENA KRISHNAMOORTHY, - W/O.V.KRISHNAMOORTHY OF RAJAGOPALA MANDIRAM, MULLACKAL, ALAPPUZHA, NOW RESIDING AT ALBERTA AVENUE, MECHANICS BURG, P.A-17050, U.S.A. BY ADV. SRI.K.GOPALAKRISHNA KURUP (SR.) RESPONDENTS : ---------------------- 1. STATE OF KERALA, REP. BY THE - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GEORGE THOMAS, MELUVALLIL HOUSE, NEAR KANNAN VARKEY BRIDGE, ALAPPUZHA. R1 BY PUBLIC PROSECUTOR SMT.SHEEBA M.T. R2 BY ADV. SRI.M.M.ALIAS THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3178 of 2009 ( ) ## APPENDIX ## PETITIONERS’ ANNEXURES: ANX- I COPY OF THE COMPLAINT FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE’S COURT-I, ALAPPUZHA DATED 23.11.2007. ANX- II COPY OF THE F.I.R. IN CRIME NO.525/2007 OF THE ALAPPUZHA SOUTH POLICE. ANX-III COPY OF THE MAHAZAR IN CRIME NO.525/2007 OF THE ALAPPUZHA SOUTH POLICE. ANX- IV COPY OF THE DECREE IN O.S.NO.837/2007 OF THE PRINCIPAL MUNISFF’S COURT, ALAPPUZHA. ANX- V COPY OF THE ORDER IN R.C.P.NO.1/2001 OF THE RENT CONTROL COURT, ALAPPUZHA. ANX-VI COPY OF THE JUDGMENT IN O.S.NO.617/1995 OF THE PRINCIPAL MUNSIFF’S COURT, ALAPPUZHA. ANX- VII COPY OF THE DECREE DATED 29.11.2000 IN A.S.NO.94/1998 OF THE ADDITIONAL SUB JUDGE, ALAPPUZHA. ANX- VIII COPY OF THE CHARGE SHEET IN CRIME NO.525/2007 OF THE ALAPPUZHA POLICE. ANX- IX COPY OF THE ADDITIONAL STATEMENT MADE BY THE 2ND RESPONDENT BEFORE THE ALAPPUZHA POLICE. ANX- X COPY OF THE STATEMENT MADE BY A CHARGE WITNESS NAMELY RAVEENDRAN. ANX- XI COPY OF THE REPORT. RESPONDENTS’ ANNEXURES: NIL // True Copy // P.A. To Judge DSV/- ## B. KEMAL PASHA, J ------------------------------------ Crl.M.C.No. 3178 of 2009 --------------------------------------Dated this the 19[th] day of July, 2013 ## O R D E R A1 and A2 in C.C.No.435 of 2009 of the Judicial First Class Magistrate’s Court-I, Alappuzha, have come up under Section 482 of the Code of Criminal Procedure, with a prayer to quash the proceedings pending against them in C.C.No.435 of 2009 of the said court. 2. The offence involved in C.C.No.435 of 2009 is one under Section 379 read with Section 34 of the Indian Penal Code. The said case is, as a result of a private complaint filed by the defacto complainant before the Judicial First Class Magistrate’s Court-I, Alappuzha, against the petitioners herein and one Dheena Satheesh and three other persons who could be identified on sight as accused, alleging theft of timber materials, tiles and laterite of a portion of building No.AMCW 26/1485 within ## Crl.M.C.No. 3178 of 2009 -:2:- the Alappuzha Municipality, claiming that the said building and the property belongs to the daughter of the defacto complainant and another. The defacto complainant claimed that he is the custodian of the property. It was alleged in the private complaint that the said property had devolved on his daughter and another through Sale Deed No.1111 of 26.03.1994 of the Alappuzha Sub Registry. The date and time of the alleged theft were shown as 10.00 p.m. on 07.11.2007. The matter was referred to the Police under Section 156 (3) of the Code of Criminal Procedure. The police after investigation, filed a final report as aforesaid, arraigning the petitioners herein as A1 and A2 and three other persons as A3 to A5. 3. The learned senior counsel for the petitioners has pointed out that there were a series of litigations between the parties prior to the private complaint. ## Crl.M.C.No. 3178 of 2009 -:3:- According to the learned senior counsel, the property having an extent of 3 cents and old building thereon, belong to late R.Radhakrishna Raddiar, the husband of the first petitioner and the father of the 2[nd] petitioner. On his death, the property devolved on the petitioners, being the legal heirs. 4. Petitioners have produced the copy of the judgment dated 30.09.1997 passed by the Principal Munsiff’s Court, Alappuzha in O.S.No.617 of 1995. The said suit was filed by the daughter of the defacto complainant and the other so called co-owner seeking a decree of perpetual injunction against one P.M.Abdul Khadar, who is the first defendant and R. Radakrishna Raddiar as the 2[nd] defendant. The said R. Radhakrishna Raddiar is none other than the husband of the first petitioner and the father of the 2[nd] petitioner herein. In the said suit, Exhibit B3 judgment in O.S.No.42 of 1984 Crl.M.C.No. 3178 of 2009 -:4:- was produced, which showed that with respect to the strip of land belonging to the said R.Radhakrishna Raddiar, the predecessor in interest of the plaintiffs, had filed O.S.No.42 of 1984 for declaration of title, and that the said suit was dismissed. By relying on Exhibit B3 judgment and a finding that even the predecessor in interest of the plaintiffs had no title over the property, the said suit filed as O.S.No.617 of 1995 was also dismissed. Annexure V is the order dated 31.07.2002 passed in R.C.P.No.1 of 2001 passed by the Rent Control Court, Alappuzha. The said R.C.P. was filed by the present first petitioner as petitioner/landlady against the tenant of the building, for an order directing the said tenant to put the first petitioner/landlady in possession of the building on the ground under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act. The said R.C.P was allowed in favour of the first petitioner, ## Crl.M.C.No. 3178 of 2009 -:5:- finding that she is the landlady of the building. Apart from all the above, the petitioners have produced Annexure IV, the copy of the decree in O.S.No.837 of 2007 dated 29.07.2008 of the Principal Munsiff’s Court, Alappuzha. The said suit was filed by the first petitioner herein as plaintiff against the defacto complainant as the 2[nd] defendant and the other so called co-owner of the property as the first defendant. The said suit was filed as there were attempts to trespass into the property and the building in involved in this case. The suit was decreed in favour of the first petitioner herein, thereby restraining the defendants from trespassing into the property in Survey No.631/24 of the Mullackal Village and from destroying or dismantling the building numbered as AMC 24/602 and from committing any mischief or waste thereon, by a decree for perpetual injunction. ## Crl.M.C.No. 3178 of 2009 -:6:- 5. The contents of the aforesaid documents clearly reveal that the petitioners are in possession and enjoyment of the strip of land in which the old building is situated. The said building was being rented out by the petitioners and their predecessor in interest, late R.Radhakrishna Raddiar. Apart from all the above, the suit filed for declaration of title of the defacto complainant’s daughter and the other so called co-owner in respect of the strip of land belonging to late R.Radhakrishna Raddiar, was also dismissed. Consequently, the subsequent suit filed by the so called title holders of the property under whom the defacto complainant is claiming custody, as O.S.No.617 of 1995 before the Principal Munsiff’s Court, Alappuzha, against the said R.Radhakrishna Raddiar and another was also dismissed. Matters being so, there is no meaning in contending that the defacto complainant can claim any ## Crl.M.C.No. 3178 of 2009 -:7:- valid possession or custody of the properties involved in this case. It seems that no investigation was conducted by the investigating officer relating to the aforesaid legal proceedings, all of which had culminated in finding the rights of the petitioners over the property. 6. Presently the 2[nd] respondent herein is not contesting. There is absolutely nothing to show that the defacto complainant was in proper custody of the properties allegedly stolen away. Moreover, it seems that presently the prosecution moves with the allegation that the alleged theft was committed at 10.00 a.m. on 07.11.2007 and not at 10.00 p.m. on 07.11.2007. 7. The learned Senior counsel has invited my attention to the decision in Chandi Kumar Das Karmarkar and another v. Abanidhar Roy [AIR 1965 SC 585], wherein it was held in paragraph 5 as follows: Crl.M.C.No. 3178 of 2009 -:8:- “(5) Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. This court in Criminal Appeal No.31 of 1961, D/- 5-10-1961, S.Sanyasi Apparao v. Boddepalli Lakshminarayana, 1962 (Supp) 1 SCR 8:(AIR 1962 SC 586) observed as follows: “It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right.” By the expression “colour of a legal right” is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak. This Court observed in the same case that the law was stated in 2 East PC 659 to be: “If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the court will direct an acquittal.” Crl.M.C.No. 3178 of 2009 ## -:9:- and referred to 1 Hale PC 509 that ‘the best evidence is that the goods were taken quite openly”. The law stated by East and Hale has always been the law on the subject of theft in India and numerous cases decided by Indian Courts are to be found in which these principles have been applied.” The records produced by the petitioners reveal that the petitioners are in open possession of the property and the building thereon with a bona fide belief that they have proper title over the property. When the materials from a portion of the deteriorated structure were removed in open day light by the petitioners and the persons employed by them, it can only be believed that it was the honest act committed by them as they are in possession of the property under the bona fide belief that they had adequate title over the property. In such circumstances, the proceedings against the petitioners in C.C.No.435 of 2009 of the Judicial First Class Magistrate’s Court-I, Alappuzha, alleging theft, are only ## Crl.M.C.No. 3178 of 2009 ## -:10:- to be quashed, and I am doing so. In the result, this Crl.M.C. is allowed and the proceedings as against the petitioners in C.C.No.435 of 2009 of the Judicial First Class Magistrate’s Court-I, Alappuzha, are hereby quashed. Sd/- B. KEMAL PASHA, JUDGE. // True Copy // P.A. To Judge DSV/-