R V BHASIN Vs. BHUSHAN S GAWADE

JUDGEMENT

(1.) HEARD both sides.

(2.) THIS is an application for leave to file appeal. The accused has been acquitted by the trial court for an offence punishable U/s.379 of the I.P.C. The complainant is an Advocate. On 21.2.1994 he received telephonic message from his son that the accused Bhushan Gawade who is Sr. Traffic Assistant of B.M.C. has brought towing crane and attempted to tow away the vehicle belonging to the complainant. The vehicle in question had been lying on the road for long period of time without use for want of spare parts and the complainant was not using the said vehicle. According to the complainant the accused told his son that fine will have to be paid for taking the vehicle back. The accused did not produce his authority. It was the complainant's case that the demand of money amounted to extortion under Section 384 and 385 of the I.P.C. It was his case that act of taking away the vehicle amount to theft U/s.379 of the I.P.C. On perusal of the judgment, it appears that the trial court has considered record of the case and the evidence led in the matter and concluded that the evidence on record is not sufficient to prove the offence of theft against the accused and therefore, acquitted the accused.

(3.) THE reliance is also placed on Explanation-3 to Section 378 and it is contended that act of breaking open the lock and towing the car away would amount to theft. Explanation-3 is an explanation to main Section 378 which requires dishonest intention. I have already observed that there was no dishonest intention on the part of the accused. Hence, this is not a fit case to grant leave.