THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION NO.4829 OF 2009 Date: 02.12.2011 Between: Devishetti Ramesh …..Petitioner And The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad, through S.H.O., P.S. Karimnagar II Town and another …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION NO.4829 OF 2009 ORDER: Heard Sri V.Ravi Kumar, the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor. Notice has been taken out to the second respondent who is the de facto complainant and it is served on him but there is no representation for him. 2. Petitioner herein is the accused No.3 in C.C.No.135 of 2008 on the file of the Court of Judicial First Class Magistrate at Luxettipet (trial court). The said case arose out of Crime No.19 of 2007 of Jannaram Police Station, Adilabad District. The offences alleged in the above case are those punishable under Section 457 and 380 and also Section 411 of the Indian Penal Code, 1860 (IPC). The charge-sheet averments show that the petitioner dishonestly received the stolen property knowing it to be stolen for which he is punishable under Section 411 of IPC. The petitioner filed this petition under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.) for quashing the above case. 3. The case of the prosecution is that both accused Nos.1 and 2 committed theft of some property not only from the house of the de facto complainant Bashetti Manoher but some other persons and ultimately certain properties were recovered from them pertaining to the thefts including the theft in the present case. The charge sheet further reads that certain confession statements of both accused Nos.1 and 2 were recorded. It is not necessary to go into those details. It would be sufficient to note that on the alleged confession of accused No.2 that he sold some of the stolen articles or ornaments to accused No.3, who is a businessman in jewellery at Karimnagar, he (accused No.3) is also included as accused in the case. What should be noted is that a perusal of the charge sheet would show that no property was recovered from accused No.3 pertaining to the theft in the present case or for that matter any other thefts said to have been committed by accused Nos.1 and 2. 4. Sri V.Ravi Kumar pointed out that to frame a charge for the offence under Section 411 IPC, the recovery of property said to have been stolen is necessary and that in the trial also it should be proved beyond all reasonable doubt that the property recovered from the accused is stolen property belonging to some other person and that he received it knowing it to be stolen property. He says that in the present case, all these essential ingredients are absent so far as the petitioner/accused No.3 is concerned and therefore the case against him should be quashed. The learned Additional Public Prosecutor is however unable to repel the above contention and he is unable to show that any property pertaining to the present case has been recovered from the petitioner. 5. It may be noted that in Mahabir Sao v. The State of Bihar[1] relied upon by the learned counsel for the petitioner, the Supreme Court held that the essential requirement of the offence of receiving stolen property is that the property seized from the possession of the accused must be proved by the prosecution to be stolen. Thus this is the situation even if the property is recovered and in the present case the charge sheet allegations, to repeat, do not show that any property has been recovered from the petitioner. In other words it follows that the essential ingredients to make out the offence punishable under Section 411 IPC and to frame a charge under it against the petitioner are totally lacking in this case and consequently it follows that this is a good ground for quashing the proceedings in this case against this petitioner. 6. This petition is accordingly allowed and the proceedings in C.C.No.135 of 2008 on the file of the Court of Judicial First Class Magistrate, Luxxetipet, are quashed against the petitioner/accused No.3. It is however made clear that the trial court in exercise of its power under Section 319 of Cr.P.C. can proceed against this petitioner also, if in the course of trial, evidence is forthcoming to show that this petitioner should also be prosecuted. ___________________________ JUSTICE N.RAVI SHANKAR 2nd December, 2011 Tjmr THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION NO.4829 OF 2009 DATE: 03.12.2011 [1] AIR 1972 SUPREME COURT 642