1 Appln5705-10 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5705 OF 2010 The State of Maharashtra .. Applicant Vs. Subhash Namdeo Patil .. Respondent Shri S. A. Shaikh for the Applicant State CORAM : N. D. DESHPANDE, J. DATE : 23 rd March, 2011 P. C. 1. This is an application for leave to appeal against the judgment and order dated 25 th June, 2010 passed by the learned Sessions Judge Kolhapur in Criminal Appeal No. 65 of 2005 thereby the respondent-accused is acquitted. The respondent was earlier held guilty and convicted under section 380 of the Indian Penal Code by the Judgment and order dated 24/6/2005 passed by the Learned Judicial Magistrate, First Class, Panhala, Dist. Kolhapur in Criminal Case No.31 of 1999. 2. Perused the impugned judgment and order of acquittal dated 25 th June, 2010 passed by the learned Sessions Judge Kolhapur in Criminal Appeal No. 65 of 2005. 2 Appln5705-10 3. The facts can briefly be stated that a case of theft was registered against the accused-respondent who was working as teacher in the school of the Complainant at the material time. The incident took place on 9.2.1999 in the school premises. In Block No. 2 of the School, Unit Test of 8th and 9th Standards students was held under the supervision of one Rajaram Anand Shinde. The accused, who was also a teacher entered the said block No.2 and collected 11 papers from the students who were writing papers. According to the complainant, accused had no authority to collect papers from the student for any purpose. The matter was, therefore, reported to the Headmistress of the School and Headmistress of the school lodged a complaint against the accused, teacher which was registered as C.R.No.12 of 1999 under section 380 of the Indian Penal Code. It is also seen that the accused respondent produced all papers in the school on the next day. 4. Unfortunately, the accused was prosecuted for the charge of theft under Section 380 of the Indian Penal Code and was convicted by the learned trial Court. There is nothing on record to show that the accused dishonestly removed the papers and committed theft of answer sheets. Therefore, essential ingredients of theft namely “dishonest removal” causing “wrongful loss” and “wrongful gain” is not proved. The offence of theft is defined 3 Appln5705-10 under section 378 of the Indian Penal code which reads thus: “Theft._ whoever intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking is said to commit theft. .............” 5. Admittedly no property as such went stolen. The act alleged against the accused/teacher that he collected some papers from the students who were writing papers of unit test is without any dishonest intention. It appears that there was some dispute between the accused teacher and the management of the school and therefore a report came to be lodged. The trial Court having failed to appreciate the evidence on the point of essential ingredients of an offence of theft, and directed conviction and, therefore, it has been rightly set aside by the appellate Court in the appeal. Thus there is no perversity or illegality found in the impugned judgment and the findings recorded by the learned Sessions Judge. The impugned order, therefore, called for no interference and deserves to be upheld and maintained. No case is made out. Leave is refused. 6. The application is rejected. ( N. D. DESHPANDE, J. )