A. v. G. Natarajan VS Thiruvekadam — 1998 DIGILAW 1410 (MAD)

Judgment 1. The complainant is the appellant. The complainant filed a private complaint before the Chief Judicial Magistrate, Tanjore District of Kumbakonam. 2. The complainants case is as follows: The complainant is a mirasdar, having lands at The peramanallur. The complainants brother Shanmugham who was a village Administrative Officer, died four years before the date of complaint. The complainants brother Shanmugham had borrowed certain loan from Government and towards the same and it appears that a sum of Rs.648 was outstanding. On 30.3.1989 at about 1 p.m. the complainant was engaged in agricultural operation in his field, where thrashing was going on. At that time, the accused 1 to 5 came there and demanded the complainant to pay the said sum of Rs.648 due by the complainants brother. The complainant, then stated that he had nothing to do with the debt incurred by his brother and further there is a litigation pending between the wife of the said Shanmugham and the complainant and others, and therefore, he is not liable to make any payment. The accused then stated that they have been instructed to somehow realise the loan and that unless they realise the same, their higher officials would find fault with them, and stating so, they pressed the complainant. They further refused to issue any demand notice when required by the complainant. Without any notice to the complainant, in his absence, at about 3 p.m., on the same day, the accused all came to the field of the complainant, and after breaking open to lock of the motor shed, criminally trespassed into the same, and removed stealthily the motor and pumpset after disconnecting the service connection. The motor and pumpset worth Rs.6,000. Thus, the accused have committed the offence of theft of property. On account of the removal of the motor pump set, the complainant could not irrigate his lands and had suffered loss. The act of the accused falls under Secs.147, 147, 452 and 379 of I.P.C. A complaint given at the Thiruvidai-maruthur Police Station did not produce any result, Nor the representation on made to the higher authorities proved fruitful. On account of the accused the complainant has been put to mental agony loss of property and reputation. Hence, the compliant. 3. The complaint was taken on filed by the Judicial Magistrate No.II, Kumbakonam, and processes were issued to the accused. On account of the accused the complainant has been put to mental agony loss of property and reputation. Hence, the compliant. 3. The complaint was taken on filed by the Judicial Magistrate No.II, Kumbakonam, and processes were issued to the accused. On behalf of the complainant 4 witnesses were examined and Exs.P-1 to P-9 were marked. On the side of the accused, 3 witnesses were examined as D.Ws. 1 to 3 and Exs.D-1 to D-12 were marked. The seized motor was marked as M.O.1, The learned Judicial Magistrate No.II, Kumbakonam, by his judgment dated 28.2.1992, acquitted the accused. Aggrieved by the same, the complainant has come up with this appeal. 4. The point for determination is whether the order of acquittal passed by the Judicial Magistrate No.II Kumbakonam, is liable to be set asidee 5. The point: The Apex Court has held in the decision reported in Khedu Mahto and others v. State of Bihar Khedu Mahto and others v. State of Bihar , 1971 MLJ. (Crl.) 248 as follows: “It is true that the powers of the High Court in considering the evidence on record in appeals under Sec.417, Criminal Procedure Code, are as extensive as its powers in appeals against convictions, but that court at the same time should hear in mind the presumption innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate Judge has found them not guilty. Unless the conclusions reached by him are palpably based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusion. If two reasonable conclusions can be reached on the basis of the evidence on record than the view in support of the acquittal of the accused should be preferred.” 6. In the ruling reported in Sheo Swaruo v. King Emperor Sheo Swaruo v. King Emperor, 67 MLJ. 664. If two reasonable conclusions can be reached on the basis of the evidence on record than the view in support of the acquittal of the accused should be preferred.” 6. In the ruling reported in Sheo Swaruo v. King Emperor Sheo Swaruo v. King Emperor, 67 MLJ. 664. A.I.R.1934 P.C. 227(2)the Privy Council, has observed as follows: “It cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in ‘cases in which the lower court has abstains blundered, or has through incompetence, stupidity or perversity, reached such distorted conclusions as to produce a positive miscarriage of justice, or has in some other may so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. Secs.417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence, the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in reaching the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matter as the views of the trial Judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened ‘by the fact that he has been acquitted at his trial, the right of the accused to the benefit or any doubt, and slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” 7. In the decision reported in Rajendra Prasad v. State of Bihar Rajendra Prasad v. State of Bihar, A.I.R. 1977 S.C. 1059 the ApexCourthas laid down the following proposition: When a trial court, with full view of the witnesses, acquits an accused after disbelieving direct testimony, it will be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. The High Court should be able to point out in its judgment that the trial courts reasons are palpably and unerringly shakyand its own reasons are demonstrably cogent. As a statutory rule of appreciation of evidence, in an appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well high impossible for the trial court to reject their testimony. 8. Now, coming to the facts of this case, we have the following materials, about which there is no controversy. The debt was incurred by the brother of the complainant. It was incurred for the purpose of purchasing and installing an oil engine. There was certain balance dues and payable by the brother of the appellant viz., Shanmugham, towards that loan. Shanmugham died four years prior to the date of complaint. What is now attached to seized is an electric motor, admittedly, purchased by the complainant. The appellant had not signed any document in favour of the Government, undertaking to pay the liability of his brother. The Government viz., the Tahsildar has also not taken any steps against the heirs of the deceased Shanmugham, the debtor. From the documents produced on the side of the accused, it is clear that the debt was incurred by Shanmugham and at that time, the complainant was a minor. Of course, a no objection has been given for the grant of loan in favour of Shanmugham by the mother of Shanmugham viz., the mother of the appellant herein, for and on behalf of the minor as the guardian, That circumstances cannot in any way make legally the minor a party to the transaction, would make herein liable for the loan incurred by the brother. It is also not the suggestion made in the course of crosses examination of P.W. 1 that there was any joint family consisting of Shanmugham and his brother and that the said Shanmugham was the Manager of such joint family and that the loan was incurred for the purpose of the benefit of the joint family. Further, the documents disclose that the properties comprised in S.Nos.237/11 and 237/12, measuring 2.9. acres and 1.27 acres respectively have been given as security. The conditions also do not show that any movable property either he pays to the debtor or his relative can be attached or proceeded against for realisation of the dues. In the above background of admitted facts, we have to decide the case on hand. In the discussion of the lower court, there is absolutely no reference to these facts, which in my opinion are essential for proper appreciation of the case. 9. It is admitted that the electric motor was taken away by the accused on 30.3.1989. It is also not in dispute that at the time when it was taken away, the appellant was not present. Thus, the property belonging to the appellant has been taken away, in his absence. Without knowledge and consent, by the accused. This aspect of the case is not disputed According to the accused the Tahsildar passed an order of attachment of the property and in execution of that order, they attached the movable viz., the motor pumpset and took away the same. Incidentally it is also pleaded that since the taking away of the Motor Pumpset was done in discharge of official duties pursuant to the order of attachment sanction for prosecution is necessary and that the complaint having been filed without sanction is liable to be set aside. 10. A reference to the order of attachment would be essential in this regard. There is only a form produced which reads as a distraint order dated 16.3.1989. This order refers to the debtor as A.V.G.Shanmugham. It does not refer to the appellant nor it is issued in the name of the appellant or directed against the appellant. It further specifically states in Tamil as follows: “TAMIL” Therefore, this distraint order only empowers the Village Administrative Officer to attach the property belonging to A.V.G. Shanmugham the debtor. This order refers to the debtor as A.V.G.Shanmugham. It does not refer to the appellant nor it is issued in the name of the appellant or directed against the appellant. It further specifically states in Tamil as follows: “TAMIL” Therefore, this distraint order only empowers the Village Administrative Officer to attach the property belonging to A.V.G. Shanmugham the debtor. It does not authorise the Village Administrative Officer to attach the property of the complainant/appellant, who is neither the debtor nor the person shown as a debtor in the distraint order. Further, I have already pointed out that the debtor Shanmugham had borrowed the loan on the security of two items of property. Therefore, the attachment can, if at all, he directed only against the immovable property that were given as security for the due and proper repayment of the loan, This distraint order does not refer or authorise the Village Administrative Officer to attach any moveables. Thus, the distraint order is neither directed against the appellant nor authorities the attachment of the properties of the appellant. Further, it is not the suggestion made to P.W.1 to that any such distraint order was served upon him. For Sec.8 of the Revenue Recovery Act reads as follows: “In the seizure and sale movable property for arrears of revenue, the following rules shall be observed: Demand in writing, Defaulter to be served with a copy. The Collector, or other officer empowered by the Collector in that behalf, shall furnish to the person employed to distraint the property of a defaulter, the amount of the arrear for which the distress may be issued, and the date on which the arrears fell due. The person employed to distraint shall produce the writing which, if the arrear together with the batta due to him under Sec.53, be not at one paid shall be his authority for making the stress, and on the day on which the property may be strained, shall deliver a copy of such writing to the defaulter, endorsing thereon a list of inventory of the property distrained, and the name of the place where it may be lodged or kept”. Therefore, it is necessary that a demand in writing should be given to the person concerned. 11. Therefore, it is necessary that a demand in writing should be given to the person concerned. 11. It is to be pointed out that in the complaint, the complainant has specifically stated that he stated then that if he is served a demand notice, then he will consider the repayment of the debt, incurred by his brother. There is no suggestion made to the complainant or his witnesses that any demand in writing or notice in writing was served upon the appellant. Even assuming that the distraint order issued by the Tahsildar is enforceable against the appellant, even then, we find that from the very evidence on record, there was no demand in writing to the appellant nor service of notice upon him, before affecting the attachment. The question of service by office in time, alleged here is only after attachment and not before. Even here no attachment was made upon him to serve personally. 12. Learned counsel for the respondents/accused argued that the complainant himself has paid certain instalments of loan due by his brother. Certain challans are produced to evidence the same. Here, the lower court took the role of a Handwriting Expert to compare them and conclude that those chellans have been signed by the complainant. I do not how such a jurisdiction can be exercised by the Magistrate, In fact, the Supreme Court has deprecated such a practice. In this case, the person who is said to have prepared the challans has not been examined. The concerned Registrar is also not examined. No suggestion is made to P.W.1 and in such circumstances, the challans cannot be relied upon. Even assuming for argument sake, that the complainant paid certain amounts, that will not make the complainant, a debtor, Nor he can be substituted as a debtor in the place of his brother, merely because he paid some dues of his brother. If that is so, the Department ought to have taken a fresh agreement or repayment undertaking from the brother of the debtor viz., the complainant. Merely because the complainant has made certain payments, which is not accepted by the complainant that will not empower the Department to attach the property of the complainant, who is not at all the debtor concerned. These aspects are not at all considered by the Judicial Magistrate. He has thus omitted to consider the important and necessary facts. Merely because the complainant has made certain payments, which is not accepted by the complainant that will not empower the Department to attach the property of the complainant, who is not at all the debtor concerned. These aspects are not at all considered by the Judicial Magistrate. He has thus omitted to consider the important and necessary facts. Thus, the conclusion of the Magistrate is based upon not only erroneous view of law but also arrived at by him without focussing for consideration, the necessary facts as indicated above. Therefore, in such contest, when it is admitted that the property belonging to the appellant has been taken away by the accused without his knowledge and consent, in his absence and when the authority under which they made the seizure, is also not an authority in the eye of law, then the act of the accused would squarely fall within the definition of theft as outlined in Sec.378, Indian Penal Code. 13. Here, the property that was attached and taken away is not the property of the debtor. There is no order for attachment of the said property belonging to the appellant. Therefore, when the distraint order did not authorise the attachment of the appellants property, the taking away of the motor belonging to the appellant, is therefore, an illegal and of act and unlawful exercise of power. It cannot be construed as a discharge of any official act or any act done with a view to implement an order passed by a competent authority to distraint certain property. Thus, there was no excuse at all for the accused to take away and removed the property belonging to the appellant. The pretext of a distraint order is also not available in so far as the appellant is concerned and in so far as the property is concerned. An act which is unlawful cannot be claimed to have been in discharge of official duty. To do an unlawful act is not part of ones duty. Therefore, there is no guise of any official act, Nor there is any discharge of official duties. The complainant has specifically stated in the complaint that with a view to coerce him to pay the amount due by his brother, the property was taken away. Therefore, the act of the accused will fall squarely within the definition of theft. Therefore, there is no guise of any official act, Nor there is any discharge of official duties. The complainant has specifically stated in the complaint that with a view to coerce him to pay the amount due by his brother, the property was taken away. Therefore, the act of the accused will fall squarely within the definition of theft. P. W. 1 has clearly stated that accused stated that they have to somehow realise the amount from any one “TAMIL” In the complaint has it is stated that they said that unless the amount is realised, they will be taken to task by the Tahsildar. Thus, to force payment the distraint has been effected. 14. In the decision reported in Harikrishan v. The State Harikrishan v. The State, A.I.R 1952 Nag. 162it is held that if a person takes away a thing with the intention of coercing the person in possession to do something, even though he does not intend to deprive that person of the thing permanently, he is deemed to have committed the offence of theft. Illegal seizure of bullocks to impugned was also held to be a case of theft in the decision reported in Madras Domri v. Emperor Madras Domri v. Emperor, A.I.R 1946 Nag. 221. Seizure of property of a debtor to enforce repayment was also held to be theft in the decision reported in State v. Keshirchand State v. Keshirchand, A.I.R. 1959 Raj. 148. In the decision reported in Bakhtawar v.King Emperor Bakhtawar v. King Emperor, A.I.R. 1925 Lah. 131 it was held that removal of goods from debtors possession by force to compel the debtor to discharge the debt is theft. In the decision reported in I.L.R. 18 All. 88, it was held that the removal by a creditor against the will of his debtor to discharge his debt amounts to theft within the meaning of Sec.379 of I.P.C. 15. Here, the appellant is not even a debtor. Therefore, removal of his property by force without his consent and in his absence amounts to a case of theft. Even for argument sake if it is to be held that the appellant is a debtor, the above Rulings would go to show that the act amounts to theft. The get has been executed with the intention of making the complaint, pay the amount. Thus, it is a clear case of theft. 16. Even for argument sake if it is to be held that the appellant is a debtor, the above Rulings would go to show that the act amounts to theft. The get has been executed with the intention of making the complaint, pay the amount. Thus, it is a clear case of theft. 16. I have already held that the procedural aspects of the Revenue Recovery Act has not been properly followed. D.W.I has admitted that it was not the property for which the loan was paid. D.W.3 admits that there was no tom-tom in the village informing that the property will be attached. There was no notice served upon the appellant, informing him about the proposed attachment of the motor. 17. This Court had an occasion to deal with attachment of machinery ordered by the Tahsildar, in the decision reported in Pappammal v. State of Tamil Nadu Pappammal v. State of Tamil Nadu , (1977) 2 MLJ. 157 where it has been observed as follows: “A bare reading of the provisions of the Revenue Recovery Act makes it quite clear that the Collector or the officer authorised by him in that behalf can recover the arrears of land revenue only by sale of the moveable and immovable property belonging to the defaulter. They nowhere permit such recovery to be made from property belonging to person other than the defaulter abet that such persons may have in their possession property which earlier belonged to the defaulter. The crucial date for determination of the ownership of property in the defaulter would be the one when process from recovery under the Act is sought to be executed against it. If on that date, property from which the arrears are to be recovered belongs to the defaulter, it may certainly be attached and sold in execution of the collectors process. It, however, on that date, the property had already changed hands and is no longer the property of the defaulter, there is no jurisdiction in the collector to issue process against that property. It, however, on that date, the property had already changed hands and is no longer the property of the defaulter, there is no jurisdiction in the collector to issue process against that property. It is true that in the case of land in regard to which revenue had not been paid, the right of the collector to recover it from that land even after it had changed hands is not affected by the transfer, but that, is so because that right is given to the collector by other provisions of the Act which are ascertained in Sec.2 thereof and which declare that any land along with the buildings upon it shall be regarded as security of the public revenue.” Therefore, in such circumstances, the very attachment not only becomes illegal, but it is thoroughly void as well. 18. The lower court has observed that there is not intention to make wrongful gain. It is not necessary that the intention must be not to take the property, permanently or appropriate the same. The dishonest intention thus can be seen from the above circumstances. As seen from the circumstances, the complainant had definitely informed that he is not liable to pay the debt of his brother, and that if and when any demand is made upon him, then he will consider the same. As I have already pointed out, the Distraint Order is not directed against the appellant or his property. The appellant is not mentioned as debtor nor he is the defaulter. Therefore, the very Distraint Order is not only illegal but also untenable. When the appellant was present and had disputed his liability, the accused ought to have made a note of it and reported the matter to the Tahsildar. So that further proceedings may be initiated in accordance with law. But that is not done here. On the other hand, the accused again went to the place, when admittedly, the complainant was not present, and without his knowledge and consent and without any notice to him, the motor engine has been taken away by the accused to squarely payment. In such circumstances, a dishonest intention must be inferred. The intention was to take over the property not only with a view to force him to pay the amount due by his brother but also to discharge a debt for which there was no liability upon the appellant. In such circumstances, a dishonest intention must be inferred. The intention was to take over the property not only with a view to force him to pay the amount due by his brother but also to discharge a debt for which there was no liability upon the appellant. Thus, a wrongful loss has been caused. Hence, in such circumstances, it is an act which would squarely falls under Sec.378 of the Indian Penal Code. 19. Lastly learned counsel for the respondents submitted that the accused being Government servants, sanction is necessary. The act done by the accused is opposed to the principles of justice. They had no right to proceed against the appellant or his property. The appellant was not liable for repayment of debt. The property that was attached is a different property. The debtor had already given certain another properties as security. The Distraint Order does not mention the name of the appellant or the properties to be attached. No proper service of the same was ef-fected.Hence, in such circumstances, the very Distraint Order is non est in the eye of law. Unlawful exercise of power will not permit the mantle of sanction to be turn by the offenders. When there is no proper, valid, effective order for attachment of the property of the appellant, the act of the accused in taking away of the property of the appellant in his absence cannot be said to be an act done in discharge of the official duties of the accused. The Tahsildar has also not been examined to show that he either instructed orally or in writing the accused to proceed with the attachment of the motor belonging to the appellant herein. A public servant can be said to act or discharge official duty if his act falls within the ambit of official duty. It does not cover a case of unlawful, activity. In these circumstances, it can never be said to be a discharge of official duty. 20. As I have already pointed out there is no order by the Tahsildar or the Collector, as the case may be, directing the accused to attach the property of the appellant. Therefore, when they went to attach the property of the appellant, they were doing something which did not fall within the scope of official duties. 20. As I have already pointed out there is no order by the Tahsildar or the Collector, as the case may be, directing the accused to attach the property of the appellant. Therefore, when they went to attach the property of the appellant, they were doing something which did not fall within the scope of official duties. The Distraint Order is directed only against the debtor and neither the name of the appellant nor his property had been mentioned in the said Distraint Order. When it is so, the accused, even though they were government servants at the time when they went to execute that order, cannot claim to have been clothed with the official character for their acts and deed which were anything but lawful. There must be some reasonable connection between the act of the discharge and official duty. A held in the decision reported in Bhagwan Prasad Srivastava v. N.P.Mishra Bhagwan Prasad Srivastava v. N.P.Mishra, A.I.R 1970 S.C. 1661 the intention behind the section is to prevent public servants from being unnecessarilyharassed. But, there is a contra case. Here, a public servant had unnecessarily harassed an individual without any authority or proper proceeding. Therefore, as held in the above decision, what is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. Here, there was no official duty upon the accused to attach the property of the appellant. There was no instruction, direction or circular or proceeding, enabling the accused to distraint acts. Therefore, the act of the accused in removing the property not belonging to the debtor but belonging to a person not concerned with the transaction, definitely on act of theft and for the offences committed by them they cannot claim to wear the armour of sanction. It is an offence committed by them surpassing all the duties and rights. Hence for the offences committed wilfully and unlawfully and in such a manner, if one is to allow them to take up the plea of sanction, then the provisions of Sec.195 will become a mockery. This is a clear case of wilful commission of offence. Hence, in such circumstances, in view of the decision reported in A.I.R 1970 S.C. 1661, thisis not a case where the plea based upon sanction can be accepted. 21. This is a clear case of wilful commission of offence. Hence, in such circumstances, in view of the decision reported in A.I.R 1970 S.C. 1661, thisis not a case where the plea based upon sanction can be accepted. 21. Learned counsel for the respondent/accused submitted that the occurrence had taken place in the year 1989 and we are now in 1998. In such circumstances, as the accused having been had enjoyed the benefit of acquittal for such a long a period, it need not be disturbed. I am unable to accept this contention. A crime is a crime, whether it was committed only yesterday or some ten years back, public officers should not misuse their positions and exceed their powers in a gay abandoned Therefore, mere elapse of time cannot persuade this court to allow the order of a acquittal, remain undisturbed. 22. In the result, the appeal is allowed, setting aside the order of acquittal of the respondents by the Judicial Magistrate No.II, Kumbakonam in C.C.No.509 of 1989. Considering the long elapse of time, I am of the view that it would be sufficient if the accused are sentenced to pay fine only. Accordingly, the accused are found guilty under Secs. 147 of I.P.C. and 380 of I.P.C. and are sentenced to pay a fine of Rs.500 each under each count and in default to undergo imprisonment for a period of one month each under each count. Consequently, Crl.M.P.No.2597 of 1992 shall stand dismissed. Total fine by each of the accused Rs.1,000 out of the same of the total fine Rs. 2,500 shall be paid as compensation to the complainant/appellant. The Judicial Magistrate II, Kumbakonam shall takes steps to realise the fine amount according to law M.O.1 shall be returned to the appellant.