Suvvari Sanyasi Apparao and Anr. versus Boddepalli Lakshminarayana and Anr.

11 l1tfl-Rc111or;ul of pro1)1..rt.u iJ, tJ,e bou0Jld1· i.:xt:rci,•1-. ;-, right- If good d1fcnce--illdian p:1111l Codr,, 1860 (X /,V of I ~GO;. s. 380.

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On a con1plaint by one L, the Magistrc1te cou1Jicte<l the two appellant. of an offence under s. 380 of the Indian Penal Code for having removed a printing presi: allce<l to have belonged to L to whom it was sold in 1955 by one R once a declared keeper of the said press und("r s. 4 of the Press Act, 867. The defence was that the Press originally belonged to one G. In 1947 G transferred it to N by Ex. 0-2 where- in R joined formally, as declaration of keeper stood in his name. N sold the Press to the second appellant and anothr, 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 fint appellant was the leJsee and hd removed the press in the bonafide exercise of his right as lessee. The r.i;c 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. 0-2 bore the signature of R.

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The Judge of the High Court who heard the appeal against the acquittal order, passed by the Addifional District and Sessions Judge, said nothing about Ex. 0-2 and considered the dcclaration of R under a. of the Press Act which continued unchanged, as sufficient to prove an offence of theft. Accord- ing to him, the removal of the Press amounted to theft even though the appellants removed it under a bona/id.- claim of right.

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Held, that where a bonafi<k claim of right exists, it can be a good defence to a prosecution for theft. An act docs not amount to theft, unleJs there be not only no legal right but no appearance or colour of a legal right.

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For the purpose of criminal law on the frcscnt case the evidence prima /Mia pointed to a transfer o the press by R and G to N. The evidence prima /<Mi< also established that the appellants had taken possession of the press unMr a

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1961

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bona/irk claim of right and there was some doubt about the right of R to transfer the pr~ss to L and further the defence that the appellants took possession of the pres·; under bona/irk claim of right was a good defence entitling them to an acquittal.

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Suvvari Sa'!YO•i Apparao •• Boddepa/li Lakshminaray1111a

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CRIMINAL APPELLATE JumsDIC'l'ION: Crin!inal • Appeal No. 31 of 1961.

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Appeal by special leave from th,; judgment and order dated October 7, 1958 of l;he Andhea Pradesh High Court in Criminal Appeal No. 456 of 1957.

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P. Rarn Reddy, for the appellants.

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Ratna Rao and K. R. Ohoiulhri, for respondent No. I. .

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A. Ga,nganatham Ohetty and T. .'If. Sen, for respondent No. 2.

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October 5. 'fhe Judgment of the Court was delivered by

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HIDAYATULLAH, J.- The two Dppbllants, 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 s. 380 of the Indian Penal Code and sentencing them to six months' rigorous imprisonment and a fine of Rs. 5,00/- each, with further rigorous imprisonment for one month in default of payment of fine.

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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 Prtl!l8 and Registration of Hooks Act, 1867. The declarations were made in 1944 (Ex.P.4) and 1947 (EH ·P-5). On November 21, 1955,

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lfid•y•luilah J.

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10 SUPREME COURT REPORTS [1962) SUPP.

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Srt11vari Sa11;·asi A/>Paru Y. BodJ,polli IA111uninaraJOM

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P~ppala Chinna Ra.madasu sold this press by a registered document (Ex.P. J) to one Boddepalli Lakshmina!·ayana for Rs. 4,liOO/-, of which Hs.3,500/- were shown to have been paid in arlvRnce and the balance was received by Pappala Chiuna liamadasu on January 10, 191ifi, (Ex.P.2). Two applications were then made on Decem her J, 1955, n·spectively by Chinna Ramadasu and Boddcpalli Lakshminara.yana before the Collector and District ~fagistrate, for substituting the name of Boddepalli Lakshminarayana in place of that of Pappa.la 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).

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The ca.se of the prosecution further is that Boddepalli Lakshminarayana went to Kurnool on March 20, 1956, and in his absence, the two appel· !ants with two others (who were prosecuted but acquitte~) removed the Printing Press on the night of March :15, 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 acLion, and a compl&int was, therefore, filed on April 4, 1956, by Boddepalli Laksmina.rayana. The Judicial Second Class Magistrate, Srike.kulam, convicted the two appellants of an offenoe under s. 380 of the Indian Penal Code, and acquitted the two others, with whom we a.re not concerned, and sentenced each of the aprllants to simple imprisonment till the rising o the Court and a fine of Rs.250/-,with simple imprisonment for one month in default. On appeal, the Additional District and SeB11ions Judge, Srikakulam, set asitle the convictoin and acquitted them.. The complainant then obtained special leave of the High Court to file all

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appeal against this acquittal, and the High Court reversed the acquittal, as already indicated above.

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In support of the prosecution case, the complainant examined four witnesses, including himself. J>appala 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.

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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 the promissory note showing these payments were signed by Pappala Chinna Ramadasu as a witness .. Kuna Appala Naidu was examined as D.W.l, 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, waa 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. Sri· rru:ndas, and the second appellant continued in possession as owner. Pappala Chinna Ramada.au continued as the printer, and his declaration as the keeper of the Press a.lso continued. In 1953, Pappala Chinna Ramada.au left the .Press for good. The Press was leased out by the second appellant to one C. Appanna, and this lease continued till 1956. On March 19, 1956, an agreement for lea.Ile was executed in favour of the first appellant, and on March 26, 1956, a registered deed was duly

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1961

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Suvvari Sanyusi Apparao v. Boddepalli Lakshminarayana

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Hidayatullah J.

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[1962] SUPP.

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... :-?/;',,.----.- ';-,.

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12. SUPREME COUH,T REPORTS

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Sui-rari SanJ'•si A>P(J1'a6 v. Boddepalli LakJhminaraoyanll

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executed. According to the appellants, the Press was removed during the day on ?lfarch 27 and the lease amount was paid on the :28th. According to them, the second appellant was tho owner, in law and in fact, of the Press and thA first appellant was the Iess-ee and had removed the Press in the bona fide exercise of his right as lessee. The apnel- !ants examined eight witnesses in support of thier case.

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-- 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 l!J53, though _ he said that he used to visit the Press once in two or three months before he sold it to P.W.l, and that the correspondence used to be macle in his name. He also stated that he had purchased the Press from the· l\Iadras Type Foundry Co., for Rs. !J,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 8ignature of Pappala Chinna Ramadasu on Ex. D-2 and additionally, the proof of-- the signature of Akkala Naidu, because if Akkala Naidu signed the document in 194 7 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. Sirigh (D.W.8). He stated categorically that Ex.D-2 bore the signature of Pappala Chinna Ramadasu. · The signature of Akkala Naidu was p~oved 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 note. - He also stated that his father had died in 1951.

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From thia material, the Additional District a.nd Sessions Judge, Srikakulam, found that Ex- D-2

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was not a forged document, as waR sug!l'.esterl, but was amply proved as genuine byP1tppa]a.Chandrudu (D.W.4) and the combined evidenee of Sri Rangam \D. W. 3) and Sri B. R. Singh (D. VV:. 8). He therefore, held that Pappala Chinna Ramadasu had no right to sell the Press in 195.5 to Boddepalli I..akshminarayana and that l,is connection with the Press had effectively c,iased from 1953 even as a mere printer. It is unnecefisary to examine whether this finding or the finding given by the Judicial Second Class Mairistrate, Srikakulam, who held othArwise, was the eo-rreet inforence from the facts. The learnP.d Judire of the High Court, who heard the appeat agaii;st the :+CquittaJ, said nothing about Ex. D-2. Ac0<>rding to him, the removal of the Press amounted to theft, even thougn the appellants removed it undP.r a bona fide claim of right.

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l!Jfl

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Sma.;Sany•s; APP""'

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Bodd,pslli J,.k.h"'i"m•Y••• Hid•ya11</lnh.J.

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In this statement of the law, the learned Judge was, with respect, clearly in error. This is what the learned Judge observed :

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"Further, to a charge of theft, the plea that the property was removed under a bona fide daim .of right would not avail. For example a person who bona fide . believ·2s 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 consent."

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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 he 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 ri!!ht. In 2 East P.C. p. 659, the law was stated a long time ago thus:

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"If there he 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."

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1961

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Swi"'ri Sanwui Appa1aO v. Rotfrf,p11lli l...4l·shmir.Mayana Hiduyatullah J.

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And according t-0 I Hale P.C. 509, the best evidence is that the goods were tak9n quite openly. Tho Jaw thus stated by East and Hale has not been altered in m0dern times. There arc numerous caB!'S in which Courts in India have recognised l• lxma fi'.de claim crf right AA a defence to the charge of theft. See Ratanlal law of Crimes 19th Ed. p. 933.

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We arc not concerned in this case with the declaration under the Press and Registration of Rooks 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. Tho ownership of the Prer~ ie a matter of the general law and must follow that law. Whether Pappala Chinr•a Ra.madasu was not only the declared keeper of the PreRs but also its owner can only be eifectivcly decided hy the Civil Court. For purposes of Criminal law, the evidence prima jacie pointed to a transfrr of the Press by Pappala Chinna Ramadasu and Govindachari to Kuna Appals Naidu. The evidence prima facie alao established that the appellants h1d taken possession of the Press under a bona fide daim of right, and that, in our opinion. was suffirient to dispose of tho present cnse. 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 cnse 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 theft. In our opinion, in the circ11mstanccs ancl in the light of the finding given by the District and Sessions Judge with regard to Ex. D-2, it was neceSEary to go further to seo what. right Papp.ala Chinna Ramadaeu had to tho Press at all. If thie had been considered, the learned Judge would have seen ' that there was some doubt the right of Pappa.la Cbinna Ramadaau

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to transfer the Press in 1955 to Boddepaili Lakshminaraya.na, and further that . the defence that the appellants took poBsession of the Press under a bona. fide claim of right was a good defence entitling them to an acquittal.

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In the result, this appeal must mrceed. The convictions of the appellants and the sentence's passed on them are set aside, th('y are a.cquitted and their bail bonds shall stand discharged. The fines, if realised, are ordered to be remitted.

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l96J

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St.tJVari Satryasi Apparao v. Boddepalli LukJhminaroy3na

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H:dn;·atu/lll/. J.

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Appeal alkiwed.

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THE STATE OF BOMBAY (NOW GUJARAT) v.

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JP61

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O:tober 6.

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NARANDAS MANGIT-AL AGARWAL AND ANOTHER

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(K. N. W ANCHOO, K. C. DAS GUPTA and J. c. SHAH, JJ.)

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Prohibition-Medicinal preparation with exce.s of alcoholIntoxicating e!fect-OA•nce under the Prohibition Act-- Burden of proof-Board of Experts under tht Act-Consultation with, if and when obligatory-Payment of excise i.uty to and licence to export granted by Bhopal State-Validity nf conviction under Bombay prohibition laws-Bombay Prohibition Act, 1949 (Bom. 25 of 1949), as amended by Bombay Act 26 of 1!;52, ss. 6A, 11, 12, 13, and UA.

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The respondents were charged with offences punishable under ss. 65(a) and 66(l)(b) of the Bombay Prohibition Act, 1949, for violating the provisions of ss. 12 and 13 of the Act. The prosecution case was that the respondents brought in their motor truck into the State of Bombay from the adjoining State of Bhopal, bottles labelled Afrugmadasav, and that the bottles did not contain genuine Mntgmadasav, an Ayurvcdic preparation, but only intoxicating liquor, import transportation and possession whereof without permit or licence under the Act were prohibited. The Magistrate found that the bottles contained 75.50% alcohol-much in excess of the normal percentage of alcohol used in preparing M,...,"'4daaav, accordin& to the standard Ayurvedic formula-

Suvvari Sanyasi Apparao and Anr. v. Boddepalli Lakshminarayana and Anr.

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Suvvari Sanyasi Apparao and Anr. v. Boddepalli Lakshminarayana and Anr.

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