UMA CHARAN CHAND Vs. CHARAN DAS

JUDGEMENT

(1.) THE petitioner was convicted under Section 379, I.P.C., by a First Class Magistrate, Puri and sentenced to pay a fine of Rs. 500 in default to undergo R. I. for a term of 3 months. The conviction was upheld in appeal by the Sessions Judge, Puri, but be reduced the fine to Rs. 200 in default of payment of which the petitioner was directed to undergo R.I. for 2 months. Some other persons who were prosecuted along with the petitioners were acquitted in the trial Court.

(2.) THE dispute in this case relates to A1. 71 Acres of land pertaining to khata No. 236 situate in mouza Tarakor. The case of the opposite party who was the complainant in the trial Court is that his father Bancha Das was in possession of the land and after his death it is the opposite party, who has been in possession thereof and as usual raised Rabi crop on the land in the year 1963. On 4 -3 -63 be uprooted biri and mung crop from the land and was removing the same in a cart when the petitioner along with few others stopped the cart, unyoked the bullocks and forcibly removed the crops. The petitioner is admittedly the ex -land lord of the village. He pleaded not guilty to the charge and denied having forcibly removed the crop as alleged by the prosecution and contended that the disputed land is all along in his khas possession and neither the complainant nor his father was ever in possession thereof.

(3.) IT is against this background that the plea of bona fide claim of right set up by the petitioner has to be examined. The offence of theft consists in the dishonest taking of any moveable property from out of possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. It is true that an act does not amount to theft unless there be not only no legal right but no appearance or colour of a legal right, and bona fide claim of right is always a good defence to a prosecution for theft. The question therefore is whether in this case it can be said that the petitioner who is proved to have taken away the crops from the possession of the opposite party can be said to have a bona fide claim of right to the same. In proof of the contention that the petitioner has a bona fide claim to the land in dispute, reliance is placed on Ex. A which is a petition dated 20th February 1963 filed by the petitioner before the Khasmabal Tahasildar wherein he asserted that he was in possession of the lands, but that Certificate cases for realisation of rent were being filed against the complainant's father Bincha Das, because the latter had got his name recorded in respect of the same. The petitioner therefore claimed that after necessary enquiry the name might be recorded in respect of the disputed land. This application was filed just a fortnight before the date of occurrence.