IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 Crl.MC.No. 1251 of 2010 (F) ------------------------- (CC.591/2009 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY) .................... PETITIONERS/ACCUSED ---------------------- 1. REENA KORATH, D/O.KORATH, MAMPAKATTU VEETTIL, KUMMANTHODU KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK. 2. JOY, S/O.THOMAS, THUNNAN VEETTIL, KEEZHUMURI KARA, RAMAMANGALAM VILLAGE, MUVATTUPUZHA TALUK. BY ADVS.SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.NOEL JOSEPH SRI.M.B.SANDEEP RESPONDENTS/COMPLAINANT & STATE ---------------------------------- 1. ABOOBACKER, S/O.AHMED, AGED 60 YEARS, PARAMBULLIKUDY HOUSE, VENGOLA KARA, ARAKKAPADY VILLAGE, KUNNATHU NADU TALUK. 2. STATE OF KERALA REPRESENTED BY SUB INSPECTOR, KUNNATHUNADU POLICE STATION BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH SRI.SANTHOSH KUMAR.K R2 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.1251 OF 2010 --------------------------------------------- Dated 9th September, 2010 O R D E R Petitioners are the accused in C.C.591/2009 on the file of Judicial First Class Magistrate's Court, Kolencherry taken cognizance for the offence under Section 379 of Indian Penal Code on Annexure-A2 final report. Case against the petitioners in Annexure-A2 final report is that they committed theft of coconuts from the property in the possession of the petitioners under an agreement for sale executed by the father of the petitioners. Petition is filed under Section 482 of Code of Criminal Procedure contending that though first respondent/ complainant filed O.S.291/2007, a suit for specific Crmc 1251/10 2 performance of the agreement for sale alleging that he has been putting in possession of the property under an agreement for sale, by Annexure-A6 order learned Munsiff has already found that first respondent was not put in possession of the property and by Annexure-A7 order, the Appellate Court confirmed the findings in Annexure-A7 order and later the suit was dismissed by Annexure-A8 judgment and therefore, continuation of the proceedings is only an abuse of process of the Court. 2. Learned counsel appearing for the petitioners and first respondent were heard. 3. Case of theft was alleged against the petitioners, based on the allegations of first respondent that he obtained the property from the father of the petitioners under an agreement for sale. As rightly pointed out by Crmc 1251/10 3 the learned counsel appearing for the petitioners, though first respondent instituted O.S.291/2007 for specific performance of the agreement for sale, by Annexure-A8 judgment, the suit was dismissed. Though first respondent raised a contention that he has been in possession of the property on the strength of the agreement for sale, civil court by Annexures-A6 and A7 orders have already found that first respondent has not obtained possession of the property. In such circumstances, petitioners, the true owners of the property cannot be prosecuted for the offence under Section 379 of Indian Penal Code, when it is clear that first respondent has not been in possession of the property on the date when the alleged theft was committed. In such circumstances, continuation of the proceedings Crmc 1251/10 4 is only an abuse of process of the court. Hence the proceedings cannot be continued. Petition is allowed. C.C.591/2009 on the file of Judicial First Class Magistrate, Kolencherry is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.