1981 Supreme(MP) 118

R. K. Vijayvergiya. J.
Baliraja v. State of M. P.
Cr. A. No.114 of 1979 (1); Decided on 20-2-1981.

Headnote:Penal Code, 1860-S. 380-offence of theft under-when made Out accused removed articles belonging to their deceased fatherd`removal is under a claim of title-complainants selling up their claim under disputed will case is of civil nature-offence not made our.

        This appeal is directed against the judgment dated 15-2-59 passed by the learned Additional Sessions Judge, Dewas, in sessions trial No. 66/78. The appellants have been convicted under section 380, IPC and sentenced to rigorous imprisonment for six months.

        Held: It is clear that there is a dispute about the property left behind by the deceased Keshrimal. According to the complainant the deceased executed a will by which he had appointed trustees to manage his property. The will is disputed by the appellants, proceedings for the grant of probate are going on in the probate Court. The appellants are the sons of the deceased. The complaint of the complainant was that the appellants along with other members of the family broke open the lock of the shop as also the Tijori and removed the articles lying therein. The appellants openly broke open the lock of the Tijori and inspite of protest by the complainant removed the articles lying therein. From the fact stated above it is clear that the appellants and the other accused were busy in removing the goods lying in the shop ad the Tijori for the whole of the day. On the facts and in the circumstances or the case I am of the opinion that it cannot be said that the appellants committed theft of the said articles. Tile appellants had denied that the complainant and other trustees were in possession of the property left behind by the deceased. According to them they were in possession of the shop. The appellants removed the property in question in assertion of a contested claim of right and it cannot be said that the removal of the property constituted their. In the absence of the will the appellants as the heirs of the deceased Keshrimal were entitled to the property in dispute. The will is disputed by them. In the circumstances the dispute is more of a civil nature rather than involving criminal liability. The conviction of the appellant therefore under section 380, IPC and sentence awarded there under cannot be sustained in hw and deserves to be set aside. Appeal allowed.