N DWARAKA DOSS Vs. GNARASIMHALU NAIDU

JUDGEMENT

(1.) This is an application to revise the judgment of the Second Presidency Magistrate, (George Town) Madras in C.C. No. 3523 of 1922 on his file, in which he convicted the accused of an offence under Section 403, I.P.C. for having criminally misappropriated a buaffalo belonging to the complainant.

(2.) The finding of the Magistrate that the buffalo really belongs to the complainant is not now controverted, and must be accepted as a finding of fact in revision.

(3.) But, as regards the plea of the accused that he acted bona fide in keeping the buffalo, it does not seem to have been properly disposed of by the Magistrate. The Magistrate observes in his judgment as follows: "The defence Vakil says that he (the accused) honestly believed it (the buffalo) to be his own and that therefore there was no dishonest misappropriation; it may be that, in the first instance, he honestly believed it to be his own and took it home?; but he had no excuse to keep it when prosecution witness I went to his house, saw it, and claimed it to be his property; as a matter of fact, he refused to return it to its owner; this clearly shows he wanted to misappropriate it and he was dishonest." It is not very easy to follow this line of argument, for, if the man had honestly believed the buffalo to be his own, and if there was any strength in that belief, he would certainly have struck to that belief even when told that the buffalo was not his; the fact that he refused to give up the buffalo rather supports his contention that he really believed that the buffalo was his. He seems to have kept the buffalo tied up in the verandah of his house which was open to the gaze of the public going about in the street. That is also a point greatly in his favour. The buffalo itself apparently strayed into his house. It is not denied that he himself had a month previously lost a buffalo. He says that in appearence this buffalo was very much like that buffalo. It is not at all unlikely that he might have mistaken this buffalo for his own. In these circumstances, the finding of the Magistrate that there was dishonest intention cannot be accepted, and without a finding of rishonest of the offence cannot be made out. The conviction is, therefore, set aside, and the fine, if levied, will be refunded to the accused. The order as regards the disposal of the buffalo will not be interferred with, as the Magistrate accepted the evidence that the buffalo belongs to the complainant.