BALAKEES BEGUM AND ORS. Vs. K.G. JACOB

JUDGEMENT

(1.) One of the defences raised by the accused in the criminal Court was that, being in possession of the property as usufructuary mortgagees, they had cut the neem trees in exercise of their right. The criminal Court, examined this plea from the point of view of Sec. 63 -A of the Transfer of the Property. Act and held that the mortgagor would be entitled to these trees on redemption of the mortgage, and that, therefore, the mortgagees who cut the trees did so with the intention to cause wrongful lass to the mortgagor. It is now pointed out that to decide the right to cut the trees, a suit was filed in the Court of Small Causes, Madras, that that Court, in its judgment given on 24th April, 1961 subsequent to the judgment in the criminal case, has held that the trees belonged to the usufructuary mortgagees and that they had the right to cut and remove the same. This decision of the Court of Small Causes is certainly an important one which conclusively determines the rights to the disputed trees. This judgment was not available to the criminal Court when it passed the judgment convicting the petitioner of this offence of mischief. It is therefore, in the interests of justice, that the judgment of the civil Court should be admitted as additional evidence in this case. Though notice was given to the other side, no one appeared. The document is received as additional evidence and marked as Exhibit D -2 on behalf of the accused. As pointed out by Yahya Ali, J., in Varadaraja Chettiar v/s. Swami Maistry, 1929 M.W.N. 396, a criminal Court will be acting in a proper manner, when a dispute about a civil right is raised before it, to have regard to the decree of the civil Court in respect of the dispute. In the present case the judgment of the Court of Small Causes clearly shows that the right which the accused set up in regard to the trees was justified; in any event even a bona fide claim of right, would rule out criminal intention on their part. The Criminal Revision Case is allowed. The conviction and sentence are set aside and the petitioners are acquitted. The fine, if paid by them, will be refunded.