An attachment under the Revenue Recovery Act does not create any interest in the land, and a bona fide claim of right can be a good defense to a prosecution for theft.

1. The petitioner, who is the accused in C.C.No.334/2004 in the file of the Judicial First Class Magistrate Court, Taliparamba, has sought for getting quashed the proceedings initiated against him for the offence under Section 379 I.P.C. The theft alleged is that he cut and removed trees worth Rs.15,000/- from the property extending 1 acre and 75 cents in R.S.No.17/1A which was attached by the Tahsildar, Taliparamba and of which he is the owner. The attachment was effected in pursuance of the execution of M.C.87/91 filed by his wife under Section 125 Cr.P.C. and in execution of the order that he shall pay at the rate of Rs.500/- to his four minor children from the date of the petition, i.e. from 1997. The arrears due amounted to Rs.39,000/-. That attachment was effected in December 2002 as per the order of the Tahsildar under the Revenue Recovery Act. Unaware of the order of attachment, the petitioner had agreed to sell some of the standing timber in the said property to one Mathukutty in December 2002. The above person cut and removed certain Maruthu trees from the property. Thereupon the wife of the petitioner filed a complaint to the Sub Inspector of Police alleging that he had cut and removed the trees worth approximately Rs.15,000/- from the property attached. Hence, the Sub Inspector has registered a crime against the petitioner as Crime No.185/2003 under Sections 447 and 379 I.P.C. on the ground that the petitioner had trespassed into the property attached by the Tahsildar and has committed theft of timber worth Rs.15,000/-. The petitioner was arrested and remanded to judicial custody and thereafter released on bail. The trees cut down was recovered and has been kept in the custody of the court as thondi articles in the police station. Subsequently the petitioner remitted the entire maintenance arrears and the family Court, Kannur as per order dated 19-4- 2004 has recalled the distress warrant. The Tahsildar has thereafter issued order under Section 42 of the Revenue Recovery Act withdrawing the attachment vide order dated 20-4-2004.

2. It is submitted that the petitioner is the owner and in possession of the property for which demand notice under Section 44 has been issued and order under attachment is passed under Section 36 of the Revenue Recovery Act. The demand notice or attachment effected would not create any charge or interest in the land to the person for whom the attachment is effected or to the Government. It has only the effect of an attachment under the provisions of the Code of Civil Procedure. The only consequence is under Section 44 of the Revenue Recovery Act that any engagement or transfer entered into by the defaulter with any one after the service of the written demand on him shall not be binding upon the Government. Moreover Section 85 of the Revenue Recovery Act is self contained for punishing any violation for the fraudulent conveyancing of the property attached. Further more, the offence of theft consists in the dishonest taking of any movable property out of the possession of the person without his consent in order to cause wrongful gain to himself and wrongful loss to the other. The petitioner has sought for setting aside the proceedings as well as for getting released the wooden logs kept in custody as thondi articles. Counsel has relied on the decision reported in Chandrasekharan Pillai v. The Popular Bank ltd.[ 1967 I.L.R.(ker.)661] wherein this Court has elucidated the implications of an order of attachment under the Revenue Recovery Act. It has been held that here is nothing in the Travancore-Cochin Revenue Recovery Act to show that an attachment effected thereunder creates any interest in the land. All that is done by Section 26 is to give notice that, unless the arrear be paid within the date mentioned, the land will be brought to sale for recovery of the arrear. It would thus appear that an attachment under the Revenue Recovery Act no more creates a charge or other interest in the l