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2009 DIGILAW 133 (KER)

Sugunan Thampi v. Mani

2009-02-13

P.S.GOPINATHAN

body2009
Judgment: Petitioners 1 to 3 are the brothers of the 4th petitioner. The first respondent is the husband of the 4th petitioner. The 4th petitioner is a teacher. The first respondent married the 4th petitioner on 30.12.1988. On 26.3.1990, the first respondent executed Annexure A3 gift deed (Document No.350/90) in favour of the 4th petitioner. Later the relationship between the 4th petitioner and the first respondent was got strained and they have now been residing separate and proceedings are pending before the Family Court, for dissolution of marriage. 2. Alleging that the petitioners committed theft of Annexure A3 gift deed on 7.2002 from the house of the 1st respondent, a complaint was filed before the Judicial First Class Magistrate Court, Paravoor. The learned Magistrate referred the same under Section 156(3) of the Code of Criminal Procedure to the Sub Inspector of Police. A case was registered and after the investigation the police filed a refer report before the learned Magistrate. Protesting against the final report filed by the Police, the first respondent preferred Annexure A1 complaint on 22.2003 before the Judicial First Class Magistrate Court, Paravoor. The learned Magistrate took cognizance for offence under Section 451 and 380 IPC and issued process as evidenced by Annexure A2. 3. Seeking anorder to quash Annexure A1, this petition was filed under Section 482 of the Code of Criminal Procedure. 4. Annexure A3 gift deed was executed by the first respondent in favour of the 4th petitioner as early as on 26.3.1990. Annexure A4 would show that the 4th petitioner had paid the tax. Annexure A5 would show that on 30.11.1998, the 4th petitioner executed a sale deed in favour of the first petitioner and Annexure A3 was handed over to the 1st petitioner by the 4th petitioner. In the normal course there is little chance for the first respondent to have possession of Annexure A3 so as to be stolen by the petitioners on 7.2002 as alleged by the first respondent. On going through Annexure A1 complaint it is seen that there is no mention as to how the first respondent obtained the possession of Annexure A3 gift deed. It is also not mentioned as to what was the loss sustained by the first respondent by the so called theft of the gift deed. On going through Annexure A1 complaint it is seen that there is no mention as to how the first respondent obtained the possession of Annexure A3 gift deed. It is also not mentioned as to what was the loss sustained by the first respondent by the so called theft of the gift deed. In the light of Annexure A5, Annexure A3 is a valuable document to be in the possession of the 1st petitioner. Irrespective of the possession, Annexure A3 would no way be a valuable movable property as regards the 1st respondent. But it is a valuable document for the 1st petitioner. Hence petitioners could not commit any theft against the 1st respondent, even if the Annexure A3 was taken away from the house of the 1st respondent. The 4th petitioner being the wife of the 1st respondent and other petitioners being the brothers-in-law their entry to the house of the 1st respondent could not amount to an offence under Section 451 IPC. Even if it is assumed that Annexure A3 was taken away from the house of the 1st respondent, it is only a bonafide removal of the document, which the first petitioner is entitled to. No mens rea to commit any offence. Learned Public Prosecutor fairly admitted that there is little material to prosecute the petitioners. In the circumstances it appears that Annexure A1 complaint itself is a reflection of the strained relationship between the 4th petitioner and the first respondent. Even if the averments in Annexure A1 complaint are read over as such there is little material to conclude that the petitioners committed any offence as alleged so as to prosecute them. The complaint is an attempted abuse of the process of law. 5. In the above circumstances, I find that there is little material to make out the offence alleged in Annexure A1 complaint and hence it is liable to be quashed, in exercise of powers under Section 482 of the Code of Criminal Procedure. In the result this petition is allowed and Annexure A1 complaint against the petitioners is hereby quashed.