DAMODARA PANICKER Vs. STATE OF KERALA

JUDGEMENT

(1.) Can immovable property be the subject matter of commission of an offence of criminal breach of trust which is defined under Section 405 of the Indian Penal Code (for short ' IPC ')? This question incidentally arises for consideration in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').

(2.) The first petitioner is the father of the second petitioner. They are the first and the second accused in the case registered as Crime No.467/2013 of the Ponkunnam police station under Sections 406 , 466 , 467 , 471 and 120B I.P.C. The aforesaid case was registered on the basis of the complaint filed by the second respondent in the Magistrate's Court concerned which was forwarded to the police under Section 156(3) of the Code for investigation. This petition under Section 482 of the Code is filed for quashing the first information report (Annexure-A1) in the case.

(3.) The material averments in the complaint (Annexure- A2) filed by the second respondent (hereinafter referred to as 'the complainant') are as follows: The complainant is a member of Kalathur tharavad. The first petitioner is also a member of that family. Partition of the properties of the aforesaid tharavad took place in the year 1101 (M.E) as per the document registered as 1416 of the Sub Registrar's Office, Kanjirappally. The property having an extent of 6.11 acres, which is shown as item No.1 in the partition deed, was set apart as a common property in the nature of a trust for conducting certain divine and charitable acts as prescribed in that document. There is stipulation in the partition deed as to how the income from this property shall be used. It is the eldest member of the family who is empowered to manage the aforesaid property as a trustee. The property stood in the name of Kerula Panicker who was the eldest member of the family. The first petitioner had been managing the property from the year 1970 onwards as a trustee for the other members of the family. In order to grab this property, the petitioners entered into a conspiracy with the then Village Officer of Elamgulam Village and they erased the name 'Kerula' in the thandaper register and substituted the name of the first petitioner as the owner of the property. Thereafter, the first petitioner executed and registered a settlement deed as document No.3269/2006 in favour of the second petitioner, his daughter, gifting her the aforesaid property. Execution of the settlement deed by the first petitioner in favour of the second petitioner was in violation of the stipulations contained in the partition deed. The petitioners have committed the offences punishable under Sections 406, 466, 467, 471 and 120B I.P.C.