ION 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
Ram Reddy for the appellants
Ratna Rao and K R Choudhri for respondent No 1
A Ganganatham Chetty and TM Sen for respondent No2
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 PW4 was admittedly a printer and for some years the declared keeper of that Press under section 4 of the Press and Registration of Books Act 1867
The declarations were made in 1944 ExP4 and 1947 Ex
On November 21 1955 10 Pappala Chinna Ramadasu sold this press by a registered document ExP 1  to one Boddepalli Lakshminarayana for Rs 4000  of which Rs3500 were shown to have been paid in advance and the balance was received by Pappala Chinna Ramadasu on January 10 1956 ExP2
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 Lakshminarayana in place of that of Pappala Chinna Ramadasu in the declaration
On December 6 1955 by exhibit P11 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 section 4 of that Act was made by Boddepalli Lakshminarayana and was accepted ExP3
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 Pm
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 PW4 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 exhibit D 2
In the registered sale deed then executed Govindachari was joined formally by Pappala Chinna Ramadasu
The sale was for Rs 6400 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 DW1 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 exhibit D2 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 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 exhibit 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 PW1 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
9107 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 DW8
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 exhibit 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 DW 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 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 exhibit 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 PC 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 theft
In our opinion in tho circumstances and in the light of the finding given by the District and Sessions Judge with regard to exhibit 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


Summary:
On a complaint by one L the Magistrate convicted the two appellants of an offence under section 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 section 4 of the Press Act 1867
The defence was that the Press originally belonged to one G
In 1947 transferred it to N by exhibit 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 exhibit D 2 which R denied
The handwriting expert stated categorically that exhibit 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 exhibit D 2 and considered the declaration of R under section 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
 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