KUTTAPPAN ACHARI Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is filed by the plaintiff in O.S.No.570 of 1987 on the file of the Additional Subordinate Judge's Court, Kottayam. The suit was for declaration of title over plaint schedule movables and recovery of possession of the same from the 3rd defendant or for realisation of its present value from defendants 1 and 2.

(2.) The plaintiff is the Proprietor of Govinda Jewellery, Kayamkulam. He is also an active member of the All Kerala Gold and Silver Merchants Association. It is stated in the plaint that on 18.9.1981 he was taken into custody by the 2nd defendant from his business premises without any arrest warrant. It is also stated that the moment the plaintiff entered in the Changanacherry Police Station the 2nd defendant without even putting a question slapped the plaintiff on his cheeks with the palm of his hand and pointing to the 4th defendant behind the bar, threatened the plaintiff that his place also will be there unless the plaintiff would make available some gold ornaments alleged to have been stolen by the 4th defendant. The plaintiff denied having received any gold or gold ornaments from the 4th defendant. The 2nd defendant stated in the presence of the 4th defendant that he had told him that he had given the stolen ornaments to the plaintiff and the 4th defendant denied any such statement having been made to the 2nd defendant. The plaintiff was also about to be put inside the cell where the 4th defendant was put. Being afraid of bodily harm to the plaintiff, the plaintiff agreed to do whatever the 2nd defendant wanted him to do. The 2nd defendant wanted the plaintiff to make available to him the four items of gold ornaments of varying weights and an ingot of 112 grams weight, all 18 ct. (total 157.500 grins.). Since the plaintiff agreed, he was sent to Kayamkulam with direction to take the articles by 23.9.1981 at the latest to the 2nd defendant. It is further stated in the plaint that the plaintiff called his gold smith Nagarajan and arranged with him to have the gold ornaments and ingot made ready by 23.9.1981 and the plaintiff took the same to the Changanacherry Police Station on 23.9.1981. The 2nd defendant asked the plaintiff and Viswanathan Achary, who accompanied the plaintiff, to put their signatures on a paper. The 2nd defendant has created a recovery mahazar of the schedule articles as having been recovered from the plaintiff's shop at Kayamkulam and as pointed out by the 4th defendant. The 4th defendant was never brought to the plaintiff's shop on 23.9.1981. The plaintiff had got all accounts of his business and he had truly recorded the fabrication of ornaments and the gold ingot in his books of account. The plaintiff produced those accounts along with the plaint. The Government by G.O.(Rt) No. 1371/81/Home dated 16.6.1981 has debarred from forcing the gold merchants to part with gold articles unless they admit of having received stolen ornaments. The plaintiff also filed a claim petition regarding the movables before the Court of Judicial Magistrate of the I Class, where the case against the 4th defendant was being tried. That petition was rejected and the appeal filed against that order was also rejected. In Crl.R.P.No.730 of 1983, this Court though dismissed the revision, gave liberty to the plaintiff to file a civil suit to establish title over the gold ornaments and expunged all observations of the lower Court adverse to the plaintiff. After the conviction of the 4th defendant, the articles were given to the 3rd defendant. They were handed over to the third defendant when the Crl.R.P. was pending. The revision was disposed of on 3.10.1986. Defendants 1 and 2 are liable to pay damages to the plaintiff for the unlawful restraint and injury and the 3rd defendant liable to return the gold ornaments and ingot or its value.

(3.) Defendants 1 and 2 filed a written statement contending that the plaint schedule gold items were stolen properties belonging to the near relatives of the 3rd defendant. On complaint from the 3rd defendant, the 4th defendant was arrested and on information given by the 4th defendant the gold ornaments were recovered. The Magistrate found the 4th defendant guilty of the offence, convicted and sentenced him to undergo rigorous imprisonment for two years. The conviction and sentence were upheld by the Appellate Court. Thereafter, the Magistrate released the gold ornaments and gold ingot to the third defendant. The allegation of detention and , manhandling are ill founded.