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PETITIONER: 8SUVVARI SANYASI APPARAO AND ANR.

       Vs.

RESPONDENT: BODDEPALLI LAKSHMINARAYANA ANDANR.

DATE OF JUDGMENT: 05/10/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, S.K. KAPUR, J.L.

CITATION:  1962 AIR  586            1962 SCR  Supl. (1)   8  CITATOR INFO :  F          1965 SC 585  (5)

ACT:      Theft-Removal of  property  in  the  bonafide exercise o right-If good defence-Indian penal Code 1860 (XLV of1860), s. 380.

HEADNOTE:      On a  complaint  by  one  L,  the  Magistrate convicted the  two appellants  of an offence under s. 380 of the Indian Penal Code for having removed a printing  press alleged to have belonged to L to whom it  was sold in 1955 by one R once a declared keeper of  the said  press under s. 4 of the Press Act,  1867.   The  defence   was  that  the  Press originally belonged  to one G. In 1947 transferred it to  N by  Ex. D-2 wherein R joined formally, as declaration of  keeper stood  in his  name. N sold the Press to the second appellant and another, but R’s name  continued as a printer and keeper of the press In  1956 the second appellant leased out the press to  the first  appellant. According  to  the appellants, the  second appellant was the owner in law and  fact of the press and the first appellant was the  lessee and  had removed  the press in the bonafide exercise of his right as lessee. The case of the  prosecution hinged  upon the evidence of R and that  of the  appellants rested upon the proof of the  signature of  R on Ex. D-2 which R denied. The handwriting  expert stated  categorically that Ex. D-2 bore the signature of R.      The Judge  of the  High Court  who heard  the appeal against  the acquittal order, passed by the Additional  District   and  Sessions  Judge,  said nothing  about   Ex.  D-2   and   considered   the declaration of  R under  s. Of the Press Act which continued unchanged,  as sufficient  to  prove  an offence of theft. According to him, the removal of the  Press  amounted  to  theft  even  though  the appellants removed  it under  a bonafide  claim of right.

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^      Held, that  where a  bonafide claim  of right exists, it  can be a Good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right.      For  the  purpose  of  criminal  law  on  the present case the evidence prima facia pointed to a transfer of  the press by R and to N. The evidence prima facie  also established  that the appellants had taken possession of the press under a 9 bonafide claim  of right  and there was some doubt about the  right of  R to  transfer the press to L and further  the defence  that the appellants took possession of  the press  under bonafide  claim of right was  a good  defence entitling  them  to  an acquittal.

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION:  Criminal Appeal No. 31 of 1961.      Appeal by special leave from the judgment and order dated  October 7, 1958 of the Andhra Pradesh High Court in Criminal Appeal No. 456 of 1957.      P . Ram Reddy for the appellants.      Ratna Rao  and K  R. Choudhri, for respondent No 1.      A.  Ganganatham  Chetty  and  T.M.  Sen.  for respondent No.2.      1961. October  5. The  Judgment of  the Court was delivered by      HIDAYATULLAH, J.-The  two appellants who were granted  special   leave  by  this  Court,  appeal against the  judgment of  the High Court of Andhra Pradesh  convicting   them,  on   appeal   against acquittal, of  an offence under. 380 of the Indian Penal Code  and sentencing  them  to  six  months’ rigorous imprisonment  and a  fine Rs. 500/- each, with   further rigorous imprisonment for one month in default of payment of fine.      The prosecution  case which  had a  chequered career in the High Court and the two Courts below, is as  follows:  In  Dusi,  which  is  a  part  of Bhaskararaopuram,  there  was  a  Press  known  as Srinivasa Printing Press at Srinivasa Ashram. This Press existed  for over  17 years.  Pappala Chinna Ramadasu (P.W.4)  was admittedly a printer and for some years,  the declared  keeper  of  that  Press under s.  4 of the Press and Registration of Books Act, 1867.  The declarations  were  made  in  1944 (Ex.P.4) and 1947 (Ex.P-5). On November 21, 1955, 10 Pappala Chinna  Ramadasu  sold  this  press  by  a registered document  (Ex.P. 1  ) to one Boddepalli Lakshminarayana   for   Rs   4,000/-,   of   which Rs.3,500/- were shown to have been paid in advance and the  balance was  received by  Pappala  Chinna Ramadasu  on   January  10,  1956,  (Ex.P.2).  Two applications were  then made  on December 1, 1955, respectively by  Chinna  Ramadasu  and  Boddepalli Lakshminarayana before  the Collector and District Magistrate for substituting the name of Boddepalli

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Lakshminarayana in place of that of Pappala Chinna Ramadasu in  the declaration. On December 6, 1955, by Ex.  P.11 they  were informed  that they should apply under  the Press  and Registration  of Books Act (25  of 1867).  Subsequently, on  January  11, 1956, a  declaration under  s. 4  of that  Act was made  by   Boddepalli  Lakshminarayana   and   was accepted (Ex.P.3).      The case  of the  prosecution further is that Boddepalli  Lakshminarayana  went  to  Kurnool  on March 20,  1956,  and  in  his  absence,  the  two appellants with  two others  (who were  prosecuted but acquitted)  removed the  Printing Press on the night of  March 25,  1956 to  Korlakota where  the first appellant, Apparao, resides. A report of the offence (Ex.P-13),  purporting to  be  written  on March 27,  1956,  was  handed  in  at  the  police station house  on the  following day at 8 P.m. The police  took  no  action,  and  a  complaint  was, therefore, filed  on April  4, 1956, by Boddepalli Laksminarayana.   The    Judicial   Second   class Magistrate,   Srikakulam,    convicted   the   two appellants of  an offence  under  8.  380  of  the Indian Penal  Code, and  acquitted the two others, with whom we are not concerned, and sentenced each of the  appellants to imprisonment till the rising of the  Court and a fine of Rs. 250/-, with simple imprisonment for  one month in default. On appeal, the  Additional   District  and   Sessions  Judge, Srikakulam, set aside the conviction and acquitted them. The  complainant then obtained special leave of the High Court to file 11 appeal against  this acquittal, and the High Court reversed  the   acquittal,  as  already  indicated above.      In  support  of  the  prosecution  case,  the complainant  examined  four  witnesses,  including himself. Pappala  Chinna Ramadasu  was examined as P.W.4 to  prove that  he had  sold  the  Press  to Boddepalli   Lakshminarayana,    and   two   other witnesses were  examined to  prove the  removal of the Printing Press by the appellants.      The defence of the appellants was as follows: According to  them, the  Press originally belonged to one  Govindachari, and  on October  25, 1947 he transferred it to Kuna Appala Naidu by Ex. D-2. In the   registered    sale   deed   then   executed, Govindachari was joined formally by Pappala Chinna Ramadasu. The  sale was for Rs. 6,400/- and on the same day,  a promissory  note was executed by Kuna Appala Naidu  in favour of Govindachari, which was attested by Pappala Chinna Ramadasu. Subsequently, Appala Naidu made payments of certain amounts, and endorsements on  tho promissory note showing these payments were signed by Pappala Chinna Ramadasu as a witness.  Kuna  Appala  Naidu  was  examined  as D.W.1, and  he stated  that, the  name of  Pappala Chinna  Ramadasu  was  formally  included  in  the transfer deed,  since the declaration stood in his name. He  also stated  that the deed, Ex. D.2, was signed as  witness by  one Akkala  Naidu, who died years before the present controversy started. Kuna Appala Naidu  later sold  the Press  to the second appellant and  one Sri K. Sriramda, and the second

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appellant  continued   in  possession   as  owner. Pappala Chinna  Ramadas continued  as the printer, and his  declaration as  the keeper  of the  Press also continued.  In 1953,  Pappala Chinna Ramadasu left the  Press for good. The Press was leased out by the  second appellant  to one Appanna, and this leave continued  till 1956.  On March 19, 1956, an agreement for  leave was executed in favour of the first  appellant,   and  on   March  26,  1956,  a registered deed was duly 12 executed. According  to the  appellants, the Press WAS removed  during the  day on  March 27  and the lease amount  was paid  on the  28th. According to them, the  second appellant  was the owner, in law and in  fact, of the Press and the first appellant was the  lessee and  had removed  the Press in the bona fide  exercise of  his right  as lessee.  The appellants examined  eight witnesses in support of their case.      The case  of the  prosecution hinged upon the evidence  of   Pappala   Chinna   Ramadasu,   when confronted with  Ex. D-2, he denied his signature, and stated  evasively that  he could  not identify the signatures  of Govindachari  and Appala Naidu. He admitted,  however, that  Appanna used  to look after the Press after 1953, though he said that he used to  visit the  Press once  in  two  or  three months before  he sold  it to  P.W.1, and that the correspondence used  to be  made in  his name.  He also stated  that he  had purchased the Press from the Madras  Type Foundry  Co., for RH. 9,107/- but that the  bills were  lost, and he added that they were taken  away along with the Press, when it was removed. The  case of  the appellants  rested upon the proof  of  the  signature  of  Pappala  Chinna Ramadasu on  Es. D-2 and additionally the proof of the signature  of Akkala  Naidu, beoause if Akkala Naidu signed  the document  in 1947  and died some four years before the present controversy started, there  would  be  good  reason  to  think  that  a document  of   this  character   could  not  be  a fabricated  one.   The   appellants   examined   a handwriting expert,  Sri B.  R. Singh  (D.W.8). He stated  categorically   that   Ex.D-2   bore   tho signature  of   Pappala   Chimla   Ramadasu.   The signature of  Akkala Naidu  was proved by his son, Sri Rangam.  He identified  the signature  of  his father not  only on  that document but also on Ex. D-3, the  promissory Dote.  He also  stated that h father had died in 1951.      From this  material, the  Additional District and Sessions Judge, Srikakulam, found that Ex- D-2 13 was not  a forged  document, as was suggested, but was amply  proved as  genuine by Pappala Chandrudu (D.W 4)  and the  combined evidence  of Sri Rangam (D. W.  3) and  Sri B.  R. Singh  (D.  W.  8).  He therefore, held  that Pappala  Chinna Ramadasu had no right  to sell  the Pres  in 1955 to Boddepalli Lakshminarayana and  that his  connection with the Press had  effectively ceased from. 1953 even as a mere printer. It is unnecessary to examine whether this finding  or the finding given by the Judicial Second  Class  Magistrate,  Srikakulam,  who  held

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otherwise, was  the correct  inference  from  the. facts. The  learned Judge  of the  High Court, who heard  the  appeal  against  the  acquittal,  said nothing about  Ex.  D-2.  According  to  him,  the removal of  the  Press  amounted  to  theft,  even though the appellants removed it under a bona fide claim of right.      In this  statement of  the law,  the  learned Judge was, with respect, clearly in error. This is what the learned Judge observed:           "Further, to a charge of theft, the plea      that the  property was  removed under  a bona      fide claim  of right  would  not  avail.  For      example a  person who bona fide believes that      the fountain  pen on  his neighbour’s desk is      his has  no right in law to trespass into the      neighbour’s house  and snatch  away  the  pen      without the latter’s content." The first  of the  statements is certainly not the law. It  is settled  law that  where a  bona  fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance  or colour  of a  legal right.  in 2 East .  659, the  law was  stated a  long time ago thus:           "If there  be in  the prisoner  any fair      pretence of  property of  right, or  if it be      brought into  doubt at  all, the  court  will      direct an acquittal." 14 And  according  to  I  Hale  P.C.  509,  the  best evidence  is  that  the  goods  were  taken  quite openly. The  law thus  stated by East and Hale has not  been  altered  in  modern  times.  There  are numerous cases  in  which  Courts  in  India  have recognised a bone fide claim of right as a defence to the charge of theft. See Ratanlal law of Crimes 19th Ed. p. 933.      We are  not concerned  in this  case with the declaration under  the Press  and Registration  of Books Act.  A declared  keeper of the Press is not necessarily the  owner thereof so as to be able to confer  title  to  the  Press  upon  another.  The ownership of  the Press is a matter of the general law and  must follow  that  law.  Whether  Pappala Chinna Ramadasu  was not  only the declared keeper of the  Press but  also  its  owner  can  only  be effectively  decided   by  the  Civil  Court.  For purposes of Criminal law, the evidence prima facie pointed to  a transfer  of the  Press  by  Pappala Chinna Ramadasu  and Govindachari  to Kuna  Appala Naidu. The  evidence prima  facie also established that the  appellants had  taken possession  of the Press under  a bona fide claim of right, and that, in our  opinion. was  sufficient to dispose of the present case. The Additional District and Sessions Judge,  Srikakulam,  had  rightly  held  that  the matter was  for the  decision of  the Civil Court, and that  this was  not a  case of theft under the Indian Penal  Code, and  had rightly  directed the acquittal of  the appellants. The learned Judge of the  High  Court  considered  the  declaration  by Pappala   Chinna    Ramadasu,   which    continued Unchanged, as  sufficient to  prove an  offence of

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theft. In our opinion, in tho circumstances and in the light of the finding given by the District and Sessions Judge  with regard  to Ex.  D-2,  it  was necessary to  go further to see what right Pappala Chinna Ramadasu  had to  the Press at all. If this had been  considered, the learned Judge would have seen that  there  was  some  doubt  the  right  of Pappala Chinna Ramadasu 15 to  transfer  the  Press  in  1955  to  Boddepalli Lakshminarayana, and further that the defence that the appellants  took possession of the Press under a bona.  fide claim  of right  was a  good defence entitling them to an acquittal.      In the  result, this appeal must succeed. The convictions of  the appellants  and the  sentences passed on  them are  set aside, they are acquitted and their  bail bonds  shall stand discharged. The fines, if realised, are ordered to be remitted.                                    Appeal allowed.