IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.MC.No. 3424 of 2006() ------------------------- CC.24/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER: ACCUSED ---------------------- C.MALINI, LAKSHMI KRISHNA, NEAR BSNL TOWER, PINARAYI P.O., THALASSERY, KANNUR DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) RESPONDENTS: STATE AND DEFACTO COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SRI.C.V.RAMDAS, S/O.RAMA WARRIER, CONTRACTOR, PALLIKUNNU AMSOM DESOM, KANNUR DISTRICT. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.M.C.No.3424 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2008 O R D E R Petitioner in this case, who is facing a charge under Section 379 I.P.C , is a teacher by profession. She is alleged to have committed theft of certain construction materials kept in her residential premises by the contractor engaged by her for the purpose of construction of the first floor of her residential building. The police charge sheeted the petitioner on the basis of the complaint lodged by the contractor (respondent No.2) alleging that the petitioner had stolen the construction materials and kept them inside her house. 2. Admittedly there is no love lost between the petitioner and the contractor. A dispute had arisen between the petitioner and the contractor with regard to the construction work entrusted to him. According to the petitioner, she had filed a suit for prohibitory injunction against the contractor seeking to restrain him from removing the construction materials from her residential compound without settling the dispute. It is on record that the interlocutory application 2 CRL.M.C.NO.3424/06 submitted by the petitioner in the said suit seeking an order of temporary injunction was dismissed by the Munsiff court on August 25, 2005. 3. Annexure-A FIR was lodged by the contractor against the petitioner alleging the offence punishable under Section 379 I.P.C on August, 28, 2005. In the said FIR, the contractor had stated that he had reliable information that the construction materials had been kept by the petitioner/accused inside her house after removing them from the court yard. Annexure-B3 charge sheet filed by the police at the conclusion of the investigation also indicates that the alleged stolen articles were recovered from inside the room in the residence of the petitioner. 4. Though respondent No.2 has been served with notice, he has not appeared either in person or through counsel. 5. I have carefully perused the FIR, charge sheet etc . 6. The materials available on record will undoubtedly show that the defacto complainant/contractor might have lodged the complaint against the petitioner because of the dispute pending between them. The admitted position being 3 CRL.M.C.NO.3424/06 that the alleged stolen articles were recovered from the residence of the petitioner itself indicates that the petitioner had not committed theft of the articles. Even assuming that the petitioner had removed the construction materials from the court yard and kept them inside her house, it cannot be said that she had committed theft of the articles. Probably she had kept them in a safer and secure place inside her house. More over, there is nothing on record to show that the contractor had kept those articles outside the house. The said contention of the petitioner cannot be rejected in toto. 7. Having heard Sri. Manu, learned counsel for the petitioner and having perused the materials available on record, I am satisfied that the proceedings initiated against the petitioner is clearly an abuse of process in the peculiar facts and circumstances of the case and it will result in miscarriage of justice . Accordingly the proceedings pending against the petitioner are liable to be quashed. I do so. The Crl.M.C. is allowed. (A.K.BASHEER, JUDGE) cl 4 CRL.M.C.NO.3424/06