Allowed

T.K.Narayanan v. State of Kerala

Kerala HC25 Jul 2022Crl.MC/414/2013

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a Criminal Misc. Appeal seeking quashing of criminal proceedings. The court held that since there was a genuine dispute over property ownership and a prior acquittal based on bona fide claim, the accused lacked dishonest intention necessary for theft and criminal trespass under IPC Sections 379 and 447.

What did the court decide?

Annexure-II final report and all further proceedings pursuant to it, including the case in C.C.No.169/2009, are quashed.

T.K.Narayanan Vs State of Kerala — Property and Title | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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MONDAY, THE 25TH DAY OF JULY 2022 / 3RD SRAVANA, 1944

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CRL.MC NO. 414 OF 2013

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[IN C.C.NO.169/2009 ON THE FILES OF THE COURT OF THE JUDICIAL

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FIRST CLASS MAGISTRATE-1, VARKALA]

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PETITIONER/1ST ACCUSED:

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T.K.NARAYANAN
AGED 67 YEARS
S/O.KUTTAN, PRASANTHI, KAILAS NAGAR,PATTOM,
THIRUVANANTHAPURAM

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BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P

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RESPONDENTS/STATE AND DEFACTO COMPLAINANT:

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1STATE OF KERALA
REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM, KOCHI-682031

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2P.G.SUDHAKARAN
AGED 65 YEARS
S/O. GOPALAN, PARUTHIYARA HOUSE, VENNIYODE DESOM,
CHERUNNIYOOR VILLAGE, THIRUVANANTHAPURAM

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OTHER PRESENT:

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R1 BY ADV SEENA C, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON
25.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC No.414 of 2013 2

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O R D E R

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The petitioner is the accused in Crime

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No.280/2007 of Varkala Police Station, which was
registered for the offences punishable under

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Section 447, 379 r/w. Section 34 of the Indian

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Penal Code (IPC). Initially, the crime was
registered against the petitioner and his wife
Smt.Lekha Narayanan. After completing the
investigation, the Police submitted Annexure-II
final report wherein the petitioner alone was
implicated as the accused. The allegation
against the petitioner is that on 5.5.2007 at
about 9 a.m., the petitioner trespassed into the

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property belonging to the wife of the 2nd
respondent/defacto complainant and plucked
coconut from a coconut tree standing in the
property of the wife of the defacto complainant

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and thereby committed the offences. Annexure -II
is the final report submitted by the police, and

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CRL.MC No.414 of 2013 3 this Crl.M.C. is filed for quashing all further proceedings pursuant to it.

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learned counsel for the petitioner and Sri.Vipin
Narayan, the learned Public Prosecutor for the
State. Even though notice was served on the 2nd
respondent, there is no appearance for him.

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3.The contention raised by the learned

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counsel for the petitioner is that the averments
in Annexure-II final report and the materials
produced along with the same would not make out
the necessary ingredients for attracting the
offences alleged against the petitioner. It is
the case of the petitioner that the property
from which the petitioner allegedly plucked
coconuts belongs to the wife of the petitioner,
and there were litigations pending at the
relevant time between the parties. The learned
counsel for the petitioner brought the attention
of this Court Annexure-III report submitted by

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CRL.MC No.414 of 2013 4

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the Survey Joint Director, Thiruvananthapuram,

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wherein it is mentioned that there are some
mistakes in the survey number of the property,
which is under the possession of the wife of the
defacto complainant which needs to be rectified
after conducting a proper survey. The petitioner
also filed O.S.No.233/2011 before the Munsiffs
Court, Varkala seeking a declaration of his
title over the property and for a consequential
injunction. It is further pointed out by the
learned counsel for the petitioner that, on

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earlier occasion, i.e. on 10.6.2006, a similar

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incident occurred, and a crime was registered on
the basis of a similar complaint submitted by
the wife of the defacto complainant herein,
which ultimately resulted in Annexure-V judgment
by the Judicial First Class Magistrate Court-1,
Varkala in C.C.No.507/2007. As per the same, the
petitioner was found not guilty, and he was
accordingly acquitted. Thus, the sum and

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CRL.MC No.414 of 2013 5

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substance of the contention of the learned

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counsel for the petitioner is that the

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petitioner had a bonafide claim in respect of

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the property on which the coconut tree
situated, and therefore no dishonest intention
can be attributed to him while plucking coconut
from the said property.

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4.On the other hand, the learned Public

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Prosecutor would oppose the aforesaid contention
by pointing out that the contention raised by
the petitioner is a matter to be examined during
the course of the trial, and the same cannot be
decided in a proceeding under Section 482 Cr.
PC.

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5.I have gone through the records and heard
the contentions from either side. The crucial

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document relied on by the petitioner to
substantiate his case is the Annexure-V judgment
passed by the Judicial First Class Magistrate
Court-1, Varkala, which has become final. The

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CRL.MC No.414 of 2013 6

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said case is registered against the petitioner

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with the same allegations, and the said incident
occurred on 10.06.2006. The wife of the 2nd
respondent herein was the defacto complainant in
the said case. Even though she was examined as
PW1 and supported the prosecution case, the
learned Magistrate, in categorical terms,
concluded that there was a bonafide claim on the

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part of the petitioner concerning the property

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under dispute. A report of the Survey Joint

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Director was relied on, which is Annexure-III

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report produced by the petitioner in this
Crl.M.C and the learned Magistrate came to a
conclusion that the petitioner was having a

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bonafide claim over the said property.

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6.It is discernible from the records,
including Annexure-III that, the wife of the

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petitioner had an extent of 2½ cents of property
adjacent to the property of the wife of the 2nd
respondent. Out of the said property, the

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CRL.MC No.414 of 2013 7 petitioner's wife sold an extent of 1¾ cents,

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and the remaining property was in her
possession. However, later, during the course of
the re-survey, somehow, the property having an
extent of ¾ cents came to be included in the
property of the wife of the defacto complainant,

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which was lying adjacent to the same. Upon
realising the mistake, the petitioner’s wife
submitted a complaint before the Survey
authority, which resulted in an Annexure-III
report wherein it was found that there occurred
some mistake in the survey, and a direction was
issued to the Taluk Surveyor to locate the
property of the wife of the petitioner and
submit a report. It is pointed out that since
there was no positive action based on Annexure-
III, a suit was instituted in the year 2011, as
mentioned above, and the plaint of the same is
produced as Annexure-IV in this Crl.MC. After
taking note of the aforesaid documents, the

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CRL.MC No.414 of 2013 8

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learned Magistrate in Annexure-V judgment came

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to a definite conclusion that the act of
plucking coconut from the property in question
cannot be treated as an act which would attract
the offence under Section 379 of IPC and the

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same was done based on a bonafide claim.
Therefore, the petitioner was found not guilty
for the offence in the said case and accordingly
acquitted. Apparently, the said judgment has
become final.

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6.In this case, very same allegations are
raised against the petitioner at the instance of
the 2nd respondent herein. The only difference is
that, the incident which is the subject matter
of Annexure-V judgment occurred on 10.06.2006
whereas in this case, the incident occurred on

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5.5.2007. Thus, the crucial question that arises
is whether the petitioner can be prosecuted for

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the offence under Section 447 or 379 of IPC when

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there is a genuine dispute was existing at the

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CRL.MC No.414 of 2013 9

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relevant time between the parties. It is true
that Annexure-IV suit happened to be dismissed,
and no further appeal was filed against the
same. However, the fact remains that as on the
date of the alleged commission of the offence,
there were some disputes existing between the
parties, as evidenced by Annexure-III report. As
far as the offence under Section 379 IPC is
concerned, the same can be attributed to a
person if the act committed by him comes within
the definition of ‘theft’ under Section 378 IPC,
which reads as follows:

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“378. Theft.—Whoever, intending to take
dishonestly any moveable property out of the
possession of any person without that person’s
consent, moves that property in order to such
taking, is said to commit theft.”

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From the reading of the said definition, it can

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be seen that, in order to attract the offence,

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the accused must have moved the property with a

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dishonestintention.Inthisregard,
illustration No.(P) is relevant which is

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CRL.MC No.414 of 2013 10

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extracted as follows:

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“378(p) : A, in good faith, believing property
belonging to Z to be A’s own property, takes that
property out of B’s possession. Here, as A does
not take dishonestly, he does not commit theft.

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From the joint reading of the definition as well

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as the illustration as extracted above, it can
be seen that, when a person is taking a property
in good faith, believing the property to be his

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property, no offence of theft would be
attracted. In this case, it is evident from the
records that there was a genuine dispute
regarding the property where the coconut tree
was standing. In Annexure-V judgment, the
learned Magistrate after considering the

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evidence adduced by the prosecution, came to a
definite conclusion that, there was a bonafide
touch on the claim of the accused over ¾ cents
of property wherein the incident had occurred.
Therefore, there is already a finding to the
effect that there was no dishonest intention on
the part of the accused while entering into the

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CRL.MC No.414 of 2013 11

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property and plucking coconuts therefrom. Since

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no dishonest intention can be attributed against
the petitioner herein, the offence under Section
379 IPC would not get attracted.

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Section 447 of IPC. The same deals with

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punishment for criminal trespass and the term
‘criminal trespass’ is defined under Section 441

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of IPC. As per the definition, in order to
constitute the offence, the accused should have
entered into the property in possession of
another with the intention to commit the offence
or to intimidate, insult or annoy any person in
possession of such property. In this case, as

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clearly found in Annexure-V judgment, the
petitioner entered into the property on the

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basis of a bonafide claim and therefore, it

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cannot be treated as an entry with an intention

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to intimidate or annoy any person in possession
of such property. The petitioner entered the

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CRL.MC No.414 of 2013 12 property on a bonafide belief that the said property belonged to the petitioner's wife. Therefore, even if the petitioner's claim is found to be incorrect at a later point in time, that would not make the act of the petitioner a criminal trespass as defined under Section 441 of IPC. Therefore, he cannot be held answerable to the charge under Section 447 IPC. Thus, after perusing the entire materials, it is evident that the prosecution initiated against the petitioner for the offences punishable under Sections 447 and 379 IPC are not legally

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sustainable because the ingredients required for
attracting the aforesaid offences are not made
out.

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8.In such circumstances, the prosecution
against the petitioner is a clear abuse of the
process of law which requires interference by
invoking the powers of this Court under Section
482 Cr. PC. While taking this view, I have taken

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CRL.MC No.414 of 2013 13 note of the fact that the defacto complainant,

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as well as the petitioner, are relatives, and
several disputes are pending between the
parties. The petitioner is aged about 76 years.

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Thus after taking into account all the
relevant inputs, I am of the view that this
Crl.M.C. is only to be allowed. Accordingly,
Annexure-II final report submitted in Crime
No.280/2007 of Varkala Police Station and all
further proceedings pursuant to the same,
including the proceedings in C.C.No.169/2009 on
the files of the Judicial First Class Magistrate
Court-1, Varkala, are hereby quashed.

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 Sd/-

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 ZIYAD RAHMAN A.A.
JUDGE

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pkk

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CRL.MC No.414 of 2013 14

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PETITIONER’S ANNEXURES:

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ANNEXURE 1:TRUE COPY OF THE FIRST INFORMATION REPORT DATED
7.5.2007
ANNEXURE II:TRUE COPY OF THE FINAL REPORT DATED 19.2.2009
ANNEXURE III:TRUE COPY OF THE LETTER DATED 22.6.2007 SENT BY
THE SURVEY JOINT DIRECTOR, THIRUVANANTHAPURAM TO
THE WIFE OF THE PETITIONER
ANNEXURE IV:TRUE COPY OF THE PLAINT IN O.S.NO.233/2011 DATED
27.6.2011 BEFORE THE MUNSIFF’S COURT, VARKALA
ANNEXURE V:TRUE COPY OF THE JUDGMENT DATED 28.9.2012 PASSED
BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1,
VARKALA IN C.C.NO.507/2007

T.K.Narayanan v. State of Kerala

Case brief

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T.K.Narayanan v. State of Kerala

Case brief

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