:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1840 of 2007 Mr.R.V. Bhasin. ..Applicant. Vs. Mr. Bhushan S. Gawade and ors. .Respondents. Applicant in person present. Mr.S.R.Shinde,APP. for the State. Mrs. Teja Katdare i/by S.H. Ujjainwala Uday Kedur for the Res[pondent No.2. CORAM: R.S. MOHITE, J. DATE : 12th August, 2008 PC : 1. Heard both sides. 2. This is an application for leave to file appeal. The accused has been acquitted by the trial court for an offence punishable U/s.379 of the I.P.C. The complainant is an Advocate. On 21.2.1994 he received telephonic message from his son that the accused Bhushan Gawade who is Sr. Traffic Assistant of B.M.C. has brought towing crane and attempted to tow away the vehicle belonging to the complainant. The vehicle in question had been lying on the road for long period of time without use for want of spare parts and the complainant was not using the said vehicle. According to the complainant the accused told his son that fine will have to be paid for taking the vehicle back. The accused did not produce his authority. It was the :2: complainant’s case that the demand of money amounted to extortion under Section 384 and 385 of the I.P.C. It was his case that act of taking away the vehicle amount to theft U/s.379 of the I.P.C. On perusal of the judgment, it appears that the trial court has considered record of the case and the evidence led in the matter and concluded that the evidence on record is not sufficient to prove the offence of theft against the accused and therefore, acquitted the accused. 3. It is sought to be contended by the present applicant that the B.M.C. has no authority to take away the said vehicle. The reliance is placed upon the Judgment of this court in the case of Noshir Shapurji Dhabhat and others Vs. The Municipal Corporation of Greater Bombay and another reported in 1989 (2) B.C.R. 221 in which this court concluded that the B.M.C. has no power to regulate the traffic or to charge fee for the purpose of parking vehicle and this was the function of the police. Even if this judgment is accepted, it means that the action on the part of the B.M.C. Officer was illegal but this is not tantamounted to saying that officer concerned was guilty of theft. Theft requires that there should be dishonest intention in taking any movable property out of the possession of the real owner. Admitted facts of this case does not indicate any dishonest intention on the part of the accused respondent. The applicant stated that word dishonest :3: was defined in Section 24 of the I.P.C. Section 24 read as under: "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to be that thing, "dishonestly". In the present case the facts indicates that there was no intention to cause wrongful loss to the complainant. The intention was to remove a vehicle which was wrongly parked on a public street. The vehicle was offered back to the complainant on payment of fine. 4. The reliance is also placed on Explanation-3 to Section 378 and it is contended that act of breaking open the lock and towing the car away would amount to theft. Explanation-3 is an explanation to main Section 378 which requires dishonest intention. I have already observed that there was no dishonest intention on the part of the accused. Hence, this is not a fit case to grant leave. 5. On behalf of the B.M.C., it is contended that the trial court has also came to the conclusion that ownership documents were not produced by the complainant. Mr. Basin states that in order to prove an offence of theft, it was not necessary for him to :4: produce the ownership documents. It was sufficient that car in question was in his actual possession and was parked below his house where he resides for 15 years. In so far as this aspect is concerned, Mr. Basin is correct. However, the ground for acquittal is different as stated hereinabove. In this view of the matter, leave refused. Consequently the appeal papers to be filed. 6. The applicant seeks leave to move the Supreme Court. Leave refused. (R.S. MOHITE, J.)