KULLAPPA NAICKER Vs. PALANIAMMALL

JUDGEMENT

(1.) THE accused in this case hag been convicted of an offence under Section 430 of the Indian Penal Code and sentenced to pay a fine. P.W. No. 4 complained to the Magistrate that the accused but open the bank of a channel belonging to her and diverted the water, thereby causing a diminution of water supply to her fields. THE Sub-Magistrate and Appellate Magistrate gave no opinion on the question of law whether the bund in question belonged to the complainant. THEy based the conviction upon the fact that the cutting of the bund resulted in the diminution of water supply to the complainant?s fields. THE question in these circumstances is whether the conviction is right. It appears from the evidence of P.W. No. 5 that in previous years the accused was in the habit of obtaining a permit to take water from this opening to his fields and that in this year also he applied to the Village Munsif for a permit and that anticipating the grant of the permit, he out open the bund. THE first question on these facts is whether the accused committed an act with the intention of causing damage to the complainant. Apparently the accused had bonafide belief that he would obtain permit and proceeded to water his fields without wait-rag for its actual receipt. This action will be covered by the principle enunciated by Ayling, J., in Kondi Chetti, In re 8 Ind. Cas. 128 : 8 M.L.T. 385 : 11 Cr.L.J. 586. We think that the accused was justified in believing that the Village Munsif would grant him the permit, as was done in previous years. It was also argued by the learned Vakil for the petitioner that the accused not having been charged with having destroyed the bund, the mere cutting open of the bund at the particular place which resulted in the diminution of water supply to the complainant would not. amount to mischief under Section 430 of the Indian Penal Code. THE definition of mischief in Section 425 requires that it is the destroyed property that must have-lost its utility or value. Here assuming that the bund did not belong to the complainant, by the mere diminution of water supply there has been no destruction or diminution in value or utility of the property on which the injurious act %as committed by the accused. It was pointed out in Appellate Side Proceedings 22nd, October 1868 4 M.H.C.R. 15 that unless the property itself was injured, the mere putting up of a dam at a particular place which resulted in depriving the complainant of the water supply would not amount to mischief under Section 430. This decision was followed in Appellate Side Proceedings 12th November, 1874 7 M.H.C.R. 89. THEse decisions have stood unchallenged for a long time. Following them we bold that the mere deprivation of water supply to the complainant is not an offence, which comes under Section 430 of the Indian Penal Code. We, therefore, set aside the conviction and direct that the finer if paid, be refunded.