N.L. Abhyankar, J.@mdashThe applicant Nanaseth alias Ibrahim has been convicted u/s 379, Indian Penal Code, and sentenced to pay a fine of Rs. 25 or in default, rigorous imprisonment for one month.
2. The complainant Shamrao is an agriculturist. He owned 5 bullocks. His case was that he had lent the use of these bullocks to his relation Narayan for some agricultural operations. While the bullocks were on the farm of Narayan, the applicant approached Narayan. He told Narayan that he held a Khand-chithi in respect of the bullocks executed by Shamrao, that the bullocks belonged to the applicant and that he would take away the bullocks on the ground that the period for which the bullocks were rented had expired. Narayan protested but the applicant did not heed such protests and took away the bullocks without the consent of Narayan or Shamrao. When Narayan reported this matter to Shamrao, who was away, Shamrao followed the bullocks and overtook the party carrying the bullocks. He demanded back the bullocks from the applicant but the applicant threatened him and thereafter Shamrao had to return. Narayan made a report to the police station about the theft.
3. The applicant''s case is that he did take the bullocks from the threshing floor of Narayan because the bullocks belonged to him. His story was that Shamrao had come to him at Yeotmal the previous day (the incident is alleged to have taken place on 6-1-1961), and had asked the applicant whether the applicant was willing to sell the bullocks to Shamrao. The applicant declined because he had obtained a Khandchithi from Shamrao and the period of the Khandchithi was over on 31-12-1960. Then Shamrao stated to the applicant that he should take away the bullocks. The applicant therefore went to Shamrao''s house the next day. Shamrao asked his own sister''s son Deorao to point out the bullocks. The applicant went to the place. The bullocks were grazing on the boundary line. Deorao pointed out the bullocks. Narayan was sitting at a distance from the place. On the bullocks being pointed out, the applicant took them away. There was no discussion between him and Shamrao. Thus the defence is that far from his taking the bullocks against the wishes or wrongfully from Shamrao and Narayan, the bullocks were in fact returned by Shamrao as the period in the Khandchithi was over.
4. The Courts below rejected the defence and accepted the prosecution case that the bullocks were taken by the applicant when they were in possession of Narayan, and without permission of Shamrao and against his wishes with a view to cause wrongful loss to Shamrao.
5. In this Court it is contended that the applicant has proved the sale of the bullocks under sale notes dated 14-3-1960 and 16-5-1960, executed by Shamrao in respect of these bullocks. The applicant has also proved EXS. D-3, D-4 and D-5, which are all Khandchithis or rent-notes in respect of these bullocks. Under these rent-notes the applicant having purchased the bullocks from Shamrao, had rented them to Shamrao again and that period of lease had expired on 31-12-1960. It is also mentioned in Ex. D-5 that if Shamrao were already in possession of the bullocks after the expiry of the period i.e. after 31-12-1960, he will be liable for damages to the extent of Rs. 100. It is therefore alleged that even assuming that the applicant took away the bullocks when they were in possession of Narayan, he must have done so in bona fide exercise of his right as owner of the property, and therefore he could not be guilty of an offence of theft; there was no mens rea; and there was no question of making a wrongful gain of the property. The right to property having ceased to exist in Shamrao both under the sale-deed as well as Khandchithi after 31-12-1960, the applicant would be justified in bringing away his own property.
6. In my view, this contention cannot be accepted. The trial Court has examined Deorao, the nephew of Shamrao, at whose instance the applicant is alleged to have taken away the bullocks. In fact the applicant''s case in the trial Court is that he took away the bullocks because Shamrao permitted and Deorao was actually sent to point out the animals which were to be taken away by the applicant. Deorao has not supported this version of the defence. But even assuming that the applicant proved that he had become the owner of the property under the sale note regarding which no finding need be given in these proceedings, the applicant could not arrogate to himself the right to take the law in his own hand and deprive Narayan of the possession of the bullocks against the wishes of Narayan and Shamrao. The law is well settled in this connection. It will appear from the documents got executed from Shamrao that at best the dealings between Shamrao and the applicant are money-lending transactions. The applicant is not an agriculturist while Shamrao is. It is unlikely that Shamrao would sell his bullocks which are valuable for agricultural operations and then take them back on rent for a very limited period. It is more probable that even if Shamrao has entered into transactions evidenced by the documents produced by the applicant, they may be purely money-lending transactions, A creditor who has taken movable property of his debtor which was under the document at best a security for the debt, cannot dispossess the debtor without his consent, in order that he may be coerced into payment of the amount of the debt. There is no question of any bona fide exercise of any right in such cases. It has been held in this Court in Emperor v. Ganpat Krithnaji 32 BLR 351 that a creditor who takes any movable property of his debtor, from the debtor''s possession, without his consent, and with the intention of coercing him to pay his debt, commits theft. The action of the applicant is nothing but an attempt to coerce Shamrao to pay the amount due to him. The same view has been taken by Mr. Justice Mudholkar (as he then was) in Harikisan v. The State 1951 N L J 91 : I L R 1951 Nag. 59. From the facts stated above it is clear that Shamrao was unable or unwilling to repurchase the property i.e. to pay his debt if any. The story of the applicant that Shamrao himself offered to give possession of the bullocks is unlikely and improbable as Shamrao immediately made a protest while the bullocks were being taken and followed it by a complaint to the police. The act of the accused therefore is nothing but a highhanded act to dispossess the complainant of his bullocks which were in temporary possession of Narayan, on the pretext that the period of the rent had expired and the complainant had not paid the price of the bullocks. Neither the document of sale nor the document of rent gave any such right. The applicant''s remedy was to sue in a Court of law; he could not take law in his own hand. That he was not causing a wrongful gain to himself on the assumption that he was the owner of the property, is not enough. The applicant was certainly causing a wrongful loss to Shamrao and Narayan. That being the conclusion which the Courts below have arrived at the conviction and sentence are correct. In fact the applicant has been dealt with lightly and should be thankful for the same.
7. The application for revision is dismissed.
