FRANCIS Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed under S.482 of the Code of Criminal Procedure for quashing the complaint in C. C. No 177 of 1981 on the file of the Judicial Magistrate, Second Class, Chavakkad

(2.) The respondent filed the complaint on the following allegations. The respondent and his family were residing as kudikidappukars in a property owned by the petitioners The kudikidappu right has been declared by the Munsiff's Court, Wadakkancherry and the decision has been confirmed by the District Court. While so, the building where the respondent was living fell down in part and the respondent was not in a position to live in that building He shifted his residence temporarily to the house of one of his brothers. In front of his kudikidappu there is a water channel constructed by the State Public Works Department. To facilitate access to his residence the respondent had put eight concrete slabs over the water channel. According to the respondent, on 19-3-1981 at about 8.00 p.m the petitioners herein removed three of the slabs and sold them to one Thomas, who resides close by, for an amount of Rs. 50/-. When the respondent questioned, the petitioners used abusive language against him A petition was filed before the police. But it did not receive favourable response. The complaint was thereupon filed before the Court alleging offences under S.379 read with S.34 of the Indian Penal Code.

(3.) The contention of the petitioners is that the complaint does not disclose any offence An offence under S.379 presupposes possession of movable property. In the instant case it is contended that the slabs were fixed to the earth and therefore it is not a movable property. Even assuming that the slabs are movable property it is contended that the ingredients of an offence of theft have not been made out in as much as the respondent was not in possession of the article when the removal took place.