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N.K. Moidinkunhi Vs. K.N. Abdulla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1977CriLJ665
AppellantN.K. Moidinkunhi
RespondentK.N. Abdulla
Cases ReferredIn Mahanta Singh v. Het Ram
Excerpt:
.....clearly go to show that the order passed by the learned sessions judge is wrong and is liable to be set aside. the counsel appearing for both parties submitted that they have, in spite of their best efforts, failed to find out a decision exactly on the point regarding casting of burden. some of the decisions cited before me clearly indicate that a proceeding relating to disposal of the property under the code of criminal procedure is not a criminal case but is really in the nature of a proceeding analogous to a civil proceeding. it is clear from the above order that this court was satisfied that this was not a case where the general rule relied on by the counsel for the respondent would apply. 11. on an examination of the evidence adduced on either side, in the light of the facts and..........and on his return to his house from calicut at about 1 p.m. on the next day, he found these 17 bags of arecanuts missing. immediately, he reported the matter to the local police who registered a case on the basis of his statement, in the course of investigation, on the same day, i.e., on 19-7-1970, 17 bags of arecanuts. each of which contained the mark 'n.k.' were seized from the house of the respondent. on completing the investigation, the respondent along with four others were charge-sheeted for offences punishable under sections 457, 380 and 411 read with section 34 of the indian penal code. being a perishable article, these bags of arecanuts produced before court were sold and the sale proceeds were deposited in court. on conclusion of the trial, the learned magistrate acquitted.....
Judgment:
ORDER

S.K. Kader, J.

1. Petitioner herein, the de facto complainant in C.C. No. 697 of 1970, on the file of the Judicial Magistrate of the II Class, Kasaragod. seeks to revise an order passed by the Court of Session, Tellicherry, ordering return of the sale proceeds of arecanuts involved in the case to the respondent who was the fifth accused in the case.

2. It was the petitioner, the only son of his aged father, who was managing his areca gardens. The petitioner had stocked in his house 17 bags of dried arecanuts with the marks 'NK' on each bag, representing the initials of the petitioner who is N.K. Moideenkunhi, On July 18. 1970, the petitioner had been to Calicut and on his return to his house from Calicut at about 1 p.m. on the next day, he found these 17 bags of arecanuts missing. Immediately, he reported the matter to the local police who registered a case on the basis of his statement, In the course of investigation, on the same day, i.e., on 19-7-1970, 17 bags of arecanuts. each of which contained the mark 'N.K.' were seized from the house of the respondent. On completing the investigation, the respondent along with four others were charge-sheeted for offences punishable under Sections 457, 380 and 411 read with Section 34 of the Indian Penal Code. Being a perishable article, these bags of arecanuts produced before court were sold and the sale proceeds were deposited in court. On conclusion of the trial, the learned Magistrate acquitted the accused finding that the prosecution has failed to prove the case against them beyond reasonable doubt. The learned Magistrate also directed the return of the sale proceeds and M.O.I, series to the respondent. Being aggrieved by this order, the petitioner came up before this Court in Crl.R.P. No. 243/71 and this Court on hearing both sides confirmed the order of acquittal but interfered with the order of disposal of the property and directed the Magistrate to hold an enquiry under Section 517 of the Code of Criminal (Procedure, 1898, and pass appropriate orders as to whom the property involved should be given.

3. In pursuance of this order, a proceeding was taken in Crl.M.P. No. 567/73 by the Judicial Magistrate of the II Class, Kasaragod, and an enquiry under Section 517 of the Code of Criminal Procedure was conducted. At the enquiry both the petitioner and the respondent adduced evidence both oral and documentary.

4. The learned Magistrate on a consideration of the entire evidence adduced on both sides found that the claim of the respondent is far from truth and his case is a cock and bull story, that the mark 'N.K.' on the bags represents the initials of the petitioner and that the proper person entitled to the sale proceeds of the arecanuts and the gunny bags is the petitioner. On these findings the property involved in the case was directed to be returned to the petitioner herein.

5. When the matter came up before the Court of Session at the instance of the respondent herein, the learned Sesisons Judge, mainly on the grounds that there is no evidence to show that the mark 'N.K.' was put by the complainant and that the property was seized from the possession of the respondent, set aside the order of the learned Magistrate and directed the sale proceeds to be given to the respondent.

6. The order of the learned Sessions Judge was assailed by Sri K.P.V.B. Ejman, learned advcoate appearing for the petitioner, on several grounds, He mainly contended that the learned Sessions Judge has not properly understood the scope and nature of an enquiry under Section 517 of the Code of Criminal Procedure (Old Code) and seriously erred in placing the entire burden of proof on the petitioner, that this is really a proceeding of civil nature or at least a quasi civil nature, that the burden of proof has to be equally cast on both sides who have to prove their respective cases, that the learned Sessions Judge also overlooked material pieces of evidence adduced in the case, that there is clear and satisfactory evidence that the case put forward by the respondent is false and a clear afterthought realising the implication of the observation made by this Court in Cri.R.P. No. 243/71 and that the facts and circumstances disclosed in the evidence would clearly go to show that the order passed by the learned Sessions Judge is wrong and is liable to be set aside.

7. Sri Ratna Singh, learned advocate appearing for the respondent strongly supported the order of the learned Sessions Judge.

8. I may say at the outset that there is considerable force in the contention of the petitioner that the learned Sessions Judge has not properly understood the scope and nature of an enquiry under Section 517 of the Old Code. The counsel appearing for both parties submitted that they have, in spite of their best efforts, failed to find out a decision exactly on the point regarding casting of burden. Some of the decisions cited before me clearly indicate that a proceeding relating to disposal of the property under the Code of Criminal Procedure is not a criminal case but is really in the nature of a proceeding analogous to a civil proceeding. In Sivasankara Pillai v. State of Kerala 1972 Ker LT 61, this Court held that the proceeding under Section 517 is a quasi civil proceeding which arises on the conclusion of an enquiry or trial in a criminal court for the purpose of disposal of any property produced before it or in its custody or regarding which an offence appears to have been committed or which has been used for the commission of the offence. In Sheo Mangal v. Maharaj Kuar AIR 1949 All 285 : 50 Cri LJ 473, while dealing with the powers of the court regarding disposal of the property under Section 517 of the Code of Criminal Procedure, it was observed that the court should allow both parties to adduce evidence in respect of their respective contentions. In Mahanta Singh v. Het Ram , it has been held that proceedings under Section 517 are really in the nature of proceedings analogous to civil proceedings in which the question to be determined is to whom the possession of certain articles should be given.

9. The phrase 'burden of proof has not been defined in the Indian Evidence Act. This phrase has two distinct meanings. In the first sense it means the burden of establishing a case and in the second sense, the burden of introducing evidence. The essential distinction between these two is that the former never shifts and remains throughout the entire case, while the latter shifts from time to time as the case proceeds. There is material and essential difference between the standard of proof in civil and criminal cases. In a criminal case, the burden of proving the guilt of the accused beyond reasonable doubt is heavily cast on the prosecution; whereas the standard of proof in a civil case is preponderance of probabilities. In other words, in a civil case there is no burden cast on any party similar to the one in a criminal proceeding. The law does not ordinarily recognise the principle of giving the benefit of doubt to a party on whom the burden of proof lies. Where both parties have adduced evidence on the point in issue, the burden of proof is of no moment. In the case on hand, where both parties have put forward rival claims, each one affirmatively asserting his claim, and have led all evidence and placed the relevant facts before the court and all that remained was a decision as to what inference was to be drawn from the proved facts and circumstances in the case, the abstract considerations of onus of proof are quite out of place and not pertinent.

10. On going through the judgment of the learned Sessions Judge, it would appear that he has proceeded on the basis that in a proceeding of this nature the entire burden of proof is on the petitioner. The approach made by the learned Sessions Judge to the questions involved in the case does not appear to be correct. The learned Sessions Judge also has not properly discussed the evidence adduced by the respondent. If the petitioner was able to prove that it was the respondent who removed the arecanuts from his possession, probably the case would have ended in a conviction. What we are concerned in a proceeding of this nature is whether there are sufficient materials on record to hold as to who actually is entitled to possession of the property involved in the case. It may be noted in this respect that Section 452 of the Code of Criminal Procedure corresponding to Section 517 of the Code of Criminal Procedure. 1898, speaks of disposal of property to any person claiming to be entitled to possession thereof. It is clear that it is not mere custody or possession that matters but there must be material to show that the custody or possession was lawful It was mainly on the basis that the property was seized from the possession of the respondent that the order of the learned Magistrate was interfered with. It was argued on behalf of the respondent that in view of the confirmation of the order of acquittal, the general rule is that the property should be returned to the person from whose possession it was seized and therefore on this short ground the order of the learned Sessions Judge has to be sustained. This Court in its judgment in Crl.R.P. No. 243 of 1971 filed against the order of acquittal observed as follows:

But, regarding the arecanut, I feel that it should not have been automatically handed over to the fifth accused or any of the other accused persons. The mark 'N.K.' on the bags throws some doubt on the ownership of the arecanut. The Magistrate should have made an enquiry under Section 517 of the Code of Criminal Procedure before he passed orders to return the arecanut to the person from whom it was recovered.

It is clear from the above order that this Court was satisfied that this was not a case where the general rule relied on by the counsel for the respondent would apply. The order of acquittal, therefore, cannot in any way help the respondent to establish his claim that he is the person entitled to the return of the property. The evidence adduced on both sides have to be duly and properly considered. There is the evidence of PWs. 2 & 3, corroborated by Exts. P1 to P4 that the father of the petitioner owned areca gardens. It is also admitted by R.W. 2 that the petitioner was managing the property of his father who was aged about 73 at the material time. Exts. P1 and P2 are applications for permits and there is the evidence of P.W. 1 who is a Supervisor of a statutory body that permits had been given to the petitioner's father for transporting arecanuts pursuant to Ex. P1 and P2 applications. On the other hand, admittedly the respondent (R.W. 1) did not own any areca garden. His case is that he has got licence to purchase and stock arecanuts. Exs. R2 and R4 are the licences produced by him in support of his case and of these Ex. R4 alone relates to the relevant period. The place and the building mentioned in the licence for stocking arecanuts are entirely different from the place and the building from where the arecanuts were seized by the police. The evidence of R.W. 2 is not at all satisfactory. A reading of his evidence as a whole indicates that he is not speaking the truth when he says that he possessed areca gardens and that he used to sell arecanuts to the respondent. As rightly observed by this Court in the revision petition, the mark 'N.K.' on the gunny bags is a circumstance which in a way indicates the ownership of the areeanuts and which will have a bearing on the main question to be decided in the proceeding. Arecanut as such cannot ordinarily be identified and therefore, the fact that each bag containing arecanuts had a particular identifying mark assumes importance. It is the definite case of the petitioner that the mark 'N.K.' represents his initials, and he has come forward with this case at the earliest point of time. The first information statement in the case refers to the marks on the bags of arecanuts stolen from his house and it was within hours of the reporting of the matter that 17 bags of arecanuts containing the same marks as mentioned in the F.I. Statement were recovered by the police from the house of the respondent. During trial the stand taken by the respondent was that there were no such marks 'N.K.' on the bags of arecanuts recovered from his house and that these marks were put, subsequent to the seizure of the bags, for the purpose of the case. When the petitioner was examined as P.W. 1 in the criminal case, the definite suggestion put to him was that these marks were put by him after the bags were seized by the police. When examined under Section 342 of the Code of Criminal Procedure on the prosecution evidence that the bags contained the marks 'N.K.', the respondent gave only an evasive answer stating that he does not know. It may also be noted that in the course of the trial, this respondent did not specifically claim this property as exclusively belonging to him. His case then was that this property belonged to him jointly with the 4th accused. It was only after the disposal of the revision by this Court and the commencement of the proceeding under Section 517 of the Code of Criminal Procedure, that the respondent came forward, for the first time, with a case that the mark 'N.K.' represents the initials of his grandfather Nakra Kalandan, that the marks were put by his grandfather and that the petitioner is not N.K. Moideen-kunhi but he is known as timber Moideen Kunhi. P.W. 2, the Village Officer of the particular village from 1961 to 1974, has deposed that there is no person known as Nakra Kalandan in the village, There is no enmity between P.W. 2 and E.W. 1. This Nakra Kalandan has not been examined and no explanation is forthcoming why he was not examined. It is clear from the facts and circumstances disclosed in the evidence that the present case of the respondent that 'N.K.' represents the initials of his grandfather is a clear afterthought and is one invented for the purpose of this case after reading the order of this Court in revision. There is evidence adduced on the side of the petitioner that the mark 'N.K'. was put by him on each bag and it represents his initials. But in spite of this, it is really surprising to note that the learned Sessions Judge has chosen to state that there is no evidence to show that the marks 'N.K.' have been actually put by the complainant. In the circumstances of this case, the mark 'N, K.' noticed on the bags seized from the house of the respondent is a material circumstance in support of the case of the petitioner. I may also point out that some of the statements and admissions made by R.W. 1 during cross-examination belie his present version that he was in possession of 47,000 arecanuts at the material time. He was positive in cross-examination that in May, 1970 when the Supervisor inspected his place of business, he was in possession of only l;2,000 arecanuts and that thereafter till the police seized the arecanuts from his house he had not purchased any arecanuts from anybody. He also says that he has accounts to show that he possessed these arecanuts and that he has also in his possession the receipts issued by persons from whom he purchased arecanuts to show the various quantities he purchased at the material time. No such documents have been produced in the case.

11. On an examination of the evidence adduced on either side, in the light of the facts and circumstances detailed above, I am satisfied that the order passed by the learned Sessions Judge is wrong and is liable to be set aside.

I therefore allow this revision petition, set aside the order of the learned Sessions Judge and restore the order passed by the learned Judicial Magistrate of the II Class, Kasaragod.


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