An accused with legal access to property cannot be charged with theft or criminal breach of trust when evidence does not substantiate knowledge of any wrongdoing.

O R D E R

Petitioner is the second accused in C.C.No.70/2011 on the files of CJM Court, Palakkad, who was prosecuted by Deputy Superintendent of Police, CBCID, Palakkad, for offences punishable under Sections 457 , 380, 406 read with Section 34 IPC .

2. He sought to be discharged of the offences before CJM Court, Palakkad, which was refused by an order dated 6.11.2014. Though the said order was challenged in Crl.R.P.No.48/2014, it was not interfered with. Thus challenging the concurrent orders passed dismissing C.M.P.No.5012/2012 filed under Section 239 of the Cr.P.C. for discharge, this Crl.M.C. is filed for their quashment invoking Section 482 of Cr.P.C.

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3. The prosecution case is that 1st accused is the proprietor of Neelima Palakkad Oil Mill Private Ltd. situated in Yakkara Village, Palakkad. He availed huge amount of loan from KSIDC, the 6th respondent and when he defaulted repayment, the plants and machineries owned by him were attached by Village Officer, Yakkara, on 26.5.2003 invoking provisions under the Revenue Recovery Act. It is stated that the attached properties were entrusted with the second accused on the same day itself. The allegation against the petitioner, who is the second respondent, is that while the order of attachment was in force, he colluding with the first accused trespassed into the premises where the properties were kept under lock and committed theft of the articles worth Rs.10 lakhs and committed offences in question.

4. The contentions of the petitioner urged in :-5-:

support of quashment of the concurrent orders passed by both courts below, are as follows;

(i) He has not signed the kaichit nor was he entrusted with any properties belonging to the oil mill.

(ii) Even if execution of kaichit is assumed also, charge under Section 457 IPC would not sustain in as much as being a purported custodian of the articles, he had every right of access to the premises where they were allegedly kept.

(iii) He did not commit theft of the properties nor did he collude with the first accused in allegedly removing or shifting the articles out of the premises. There is absolutely no material on record to connect him with the alleged act of shifting of the materials from the legal custody of the :-6-:

Revenue Officer.

(iv) He has not committed any act of criminal breach of trust, since the attached properties were practically in the physical control and possession of the first accused and it was monitored by his security staff also. Petitioner had no access to the premises where the properties were kept under attachment though he had a legal right of access, though under law he had right of entry. Since the properties were in the immediate possession of the first accused, any secret arrangement for removal of articles if made, could not have been taken easy notice of by the petitioner and therefore itself, prevention of alleged theft was practically not possible. The materials on record do not establish that he had knowledge of the alleged shifting of :-7-:

generator from the premises or he facilitated such shifting.

5. I have heard the learned counsel for the petitioner, the learned counsel for the 6th respondent KSIDC and the learned Public Prosecutor.

6. It was contended by the learned Public Prosecutor that this proceeding under Section 482 of Cr.PC. is not maintainable challenging the orders of both the courts below since on a previous occasion, a similar proceeding filed, challenging the final report in C.C.No.70/2011 was dismissed as withdrawn with liberty reserved to the petitioner to seek discharge of the offences by moving the trial Magistrate under Section 239 of Cr.P.C. In my view, this contention cannot sustain in as much as Section 482 gives ample powers to High Court to interfere with orders passed refusing discharge, provided, any illegality or impropriety in the :-8-:

decision could be established before this Court. 7. The learned counsel for the 6th respondent relying on a decision reported inKunh