OOMMEN Vs. VARKEY JOSEPH

JUDGEMENT

(1.) Certain orders passed by the lower court in the course of the claim proceedings in CC No. 1131/1952 on the file of that court, have given rise to these petitions. The petitioner is the complainant in that case. A cinema set belonging to him had been given on hire to the three accused in that case who are counter petitioners 1 to 3 in Crl. RP 10/1955, and the complaint against them is that they committed the offence of breach of trust in respect of the cinema set by secretly and unauthorisedly transferring them to third parties. In the course of a search conducted as per the order of the lower court certain of the articles of the said cinema set were recovered from the possession of the 4th counter petitioner and those articles were entrusted to the complainant petitioner after taking a bond or kychit from him. The 4th counter petitioner filed a claim petition in respect of these articles and it was contended that he was entitled to retain possession of these articles. It may be mentioned here that he has not set up any title to these articles, but has only contended that he had obtained possession of these articles from a person who had obtained the articles from accused 1 to 3. Before considering the claim on its merits, the learned Magistrate passed an order directing the complainant to produce the articles in court.

(2.) In the meanwhile the complainant instituted the civil suit OS 218/1952 on the file of the Kottayam District Court against accused 1 to 3 in CC No. 1131/1952 and against the others to whom possession of the different items of articles of the cinema set had been transferred. The relief claimed in that suit was for a decree declaring his title to these articles and also for a declaration of his right to possession of the same. The claimant in CC No. 1131/1952 is the 6th defendant in OS 218/1952. The District Court appointed the complainant plaintiff as the receiver of the articles involved in the suit inclusive of those which had already been recovered as per the search conducted in CC 1131/1953. In spite of such an order passed by the civil court the learned Magistrate insisted on the complainant producing before him the articles which had been entrusted to him under orders of that court. This necessitated the filing of Crl. MP 61/1951 before this court by complainant praying that the proceedings in CC 1131/1952 may be stayed till the final disposal of OS 218/1952 of the Kottayam District Court. This Court by the order dated 1.4.1953 allowed that petition and ordered stay of the proceedings in CC 1131/1952. It was also observed in that order that the decision in the civil case would conclusively set at rest the disputes relating to the ownership and possession of the cinema set. The civil suit was contested by defendants 1 to 3 alone who are respectively accused 1 to 3 in CC 1131/1952. The claimant who was the 6th defendant in that case, chose to remain ex parte. The disputes between the plaintiff and defendants 1 to 3 were compromised by them and the terms of the compromise were embodied in a petition filed in court. On the strength of that compromise petition and on the evidence adduced by the plaintiff a decree was passed in favour of the plaintiff directing him to recover from defendants 5 and 6 the articles which they had obtained possession of from defendants 1 to 3. The decree further authorised the plaintiff to recover from defendants 5 and 6 a sum of Rs. 4,000 as value of these articles in case of default to hand over possession of the articles. The plaintiffs possession of the articles as receiver was terminated and it was declared that he may continue to retain such possession in his capacity as owner of the articles.

(3.) After the passing of such a decree in OS 218/1952 the trial of CC 1131/1952 was resumed and at the instance of the claimant the learned Magistrate again directed the complainant to produce in court the articles which had been entrusted to him. Thereupon the complainant filed a petition on 6th June 1954, praying that in view of the decree in OS 218/1952 further investigation of the claim matter may be dropped. That prayer was dismissed by the lower court by its order dated 15.1.1955 wherein it was stated that I do not think that the decision of the Kottayam District Court in OS 218/1952 will in any way affect the right of this court to dispose of these properties on the conclusion of the trial in CC 1131/1952. In pursuance of that order the complainant was directed to produce the articles in court on 18.1.1955. It was also stated that non compliance with that direction would result in forfeiture of the bond executed by the complainant. Crl. R.P. 10/1955 is directed against this order. In Crl. MP 7/1955 the complainant has prayed for an order quashing all further proceedings on the strength of the claim petition preferred by the counter petitioner claimant.