Order.- This is a criminal revision case filed against the conviction and sentence of the learned Sub-Divisional First Class Magistrate of Peddapur in C.A. No. 53 of 1951 confirming the conviction and sentence of the Additional Stationary Sub-Magistrate, Rajahmundry, in C.C. No. 343 of 1950. The facts are: The complainant has purchased Musurumilli Bamboo Coupe No. 1 for the year 1949-50, i.e., for the year ending 30th June, 1950 for Rs. 5,000 in auction held by the Forest Department and was working the Coupe through the men engaged by him. He was getting the stock of bamboos from the Coupe to Gokavaram and stocking them in the site of one Dasari Bulliah. This site was held under a lease of the accused from whom the complainant has taken it on an annual rent of Rs. 35 for the purpose of securing the bamboos therein. The complainant noticed that the stock in the depot was being diminished, having been misappropriated by the accused and so he asked his agent at Gokavaram to stock the bamboos in another site and accordingly on 5th December, 1949, at 9 A.M., when 12 bandies of bamboos arrived from the Coupe and they were being directed towards the new site the accused interfered and threatened the cartmen and the agent and got the stock forcibly unloaded in the old yard and misappropriated them. Out of the 12 bandies, four bandies consisted of 748 plain bamboos and the remaining 8 bandies contained 2,681 sugarcane bamboos and they were worth about Rs. 400. The complainant is said to have reported this matter to the Forest Range Officer who in his turn reported the matter to the Station House Officer, Gokavaram. The Police did not investigate the offence. Hence the private complaint by the complainant. The case for the accused was that himself and the complainant were doing business conjointly, that though the contract stood in the name of the complainant he (accused) had a share therein by private understanding and that he did not commit the offence of theft. The Police did not investigate the offence. Hence the private complaint by the complainant. The case for the accused was that himself and the complainant were doing business conjointly, that though the contract stood in the name of the complainant he (accused) had a share therein by private understanding and that he did not commit the offence of theft. The accused examined three witnesses who gave the following information D.W.1 Majeti Ramarao, a resident of Ramannapalam testified that he worked in’ the concern as a clerk for writing accounts for five months and that the accused and P.W.1 have got equal shares in the business, that the accused used to receive the stock from the Coupe at the depot in Gokavaram and conduct sales while P.W.1 acted as cash keeper. D.W.2 Garugu Parvathisam, a resident of Gokavaram, deposed that he was present at the time of auction of the Coupe when P.W.1 and the accused came to an understanding to have half share each in the Coupe and that they were running the business on that footing. D.W. 3 Dasari Satyanarayana of Gokavaram swore that the Coupe was purchased in the name of P.W.1 and that the site on which the material received from the Coupe was being deposited belonged to him and that accused told him that he had a share in the business and that it appeared to him that the accused and P.W.1 were jointly conducting the business. The learned Sub-Magistrate came to the conclusion that it was established by P.W.1 that he was the contractor of the Coupe and that the accused only claimed a share in the business by private understanding with P.W.1 and that even conceding for a moment that the accused had a share in the business privately he cannot on that ground claim publicly a title over the produce in the Coupe when no written agreement between them to that effect was got executed. Therefore, he convicted the accused for an offence under section 379, Indian Penal Code, in regard to the acts which were not disputed and sentenced him to pay a fine of Rs. 100. Therefore, he convicted the accused for an offence under section 379, Indian Penal Code, in regard to the acts which were not disputed and sentenced him to pay a fine of Rs. 100. The learned Sub-Divisional Magistrate, on appeal, confirmed the conviction and sentence on the foot of the following reasoning: “In appeal before this Court the learned defence counsel argued that the accused and the complainant are partners in the bamboo business and that the evidence on record does not disclose the offence under section 379, Indian Penal Code. But I cannot agree to these arguments. The plea that the appellant is partner and a shareholder along with the complainant is an obvious invention and after-thought. He has not produced a scrap to prove his contention. I therefore reject this argument as untenable. I agree with the learned Stationary Sub-Magistrate that the appellant has committed the offence of theft.” There is no doubt that the reasoning of the learned Sub-Divisional Magistrate cannot commend itself to us as sound. The essentials of partnership are that there must be a business and there must be an agreement to share the profits of the business and the business must be carried on by all or any of the partners acting for all: Seth Suganmal v. Mt. Umaraobi1 and Tajamal Hussain v. Ahmed Ali2. This agreement necessary for creation of a partnership may be either express or implied: Mirza Mal v. Rameshar3 and Jakiuddin v. Vithoba4. In this case the contention of the accused is that the contract was taken in the name of P.W.1 because the rules require that the contract cannot be taken in the name of undisclosed persons or by unregistered firms and that the business was actually carried on by reason of an agreement as a partnership. There is no point in saying that this is an invention and after-thought because the accused can put forward this defence only when he appears before Court and after disputes had arisen. This version of the accused is spoken to by no less than three persons and the learned Sub-Magistrate and the Sub-Divisional Magistrate have not assigned any reason for discrediting the testimony of these witnesses. This version of the accused is spoken to by no less than three persons and the learned Sub-Magistrate and the Sub-Divisional Magistrate have not assigned any reason for discrediting the testimony of these witnesses. On this version set up by the accused and supported by three witnesses whose testimony has not in any way been discredited, the fact emerges that the accused committed the acts complained of in his role as a partner. Section 379, Indian Penal Code, requires that the removal of the property from the possession of another should be with intent to cause wrongful gain to himself or wrongful loss to the other person. Dishonest intention is the gist of the offence: Jay Mahto v. Emperor1. It is the intention of the taker which must determine whether the taking or removing of a thing is theft. Thus where the tenant cuts down trees standing on his own holding bona fide believing that he is entitled to them though as a matter of fact they might belong to the zamindar, there is no theft: Dori Lal v. Emperor2. Therefore when a person is prosecuted for the offence of theft, it is for the prosecution to show that he was acting dishonestly. If the circumstances, show that he was acting in the assertion of a bona fide claim of right, a. dishonest intention cannot be attributed to him and the offence of theft would not stand made out: Bhagvan Sahai v. Divisional Forest Officer3, and Bacchitarsing v. Rahim Baksh.4 In India the chief forms in which a bona fide claim of right can be set up are the following: (a) where the accused believes the thing to be his own; and (b) when the dispute is between the landlord and tenant: Srinivasalu Reddiar v. Govinda Gounden5. In these cases it is not enough for an accused to assert that he removed the property under a bona fide claim of right; the Court must also find that the plea is not a mere pretence to cover an otherwise unjustifiable act but his claim to the property is based on certain and palpable facts. The claim must not be mala fide: Harihar Narain Singh v. Bankey Singh6. A claim of right asserted in defence for prosecution for theft must be an honest one: Rainu v. The Crown7. The claim must not be mala fide: Harihar Narain Singh v. Bankey Singh6. A claim of right asserted in defence for prosecution for theft must be an honest one: Rainu v. The Crown7. In other words, there must be something more than a mere assertion or an untested and uncorroborated statement from the dock in order to make out the claim of bona fide right: Nasib Chowdhry v. Nannoo Chowdhry8, Reinnoo Singh v. Kalichurn Misser9, Hurischander Das v. Bolair Audicary10, Madhabhari, In re11, Jagatchandra Roy v. Rakhal Chandra Roy12, Hari Bhuimali v. The Emperor13, Chaitan Charan v. Kalachand14, Dhirendramohan,, In re15, Afran Ali, In re16, Sadasiv Singh, In re17, Imam, In re18, Lakanaw v. Emperor19, Udai Narain v. Ramanath20, Bhagwat Saran Misir v. Emperor21, Lunidomal, In re22, Hari Bapuji, In re23, and Alagarsami, In re24. It is sometimes stated that where property is removed in assertion of a contested claim of right, however ill-founded that claim may be the removal does not constitute theft. But this is the English law which requires proof of felonious intent to constitute theft. To prevent the taking from being felonious the claim of right must be honest one though it may be unfounded in fact; R. v. Bernard25 Halsbury’s Laws of England, 2nd Edn., Vol. IX, p. 497. The mens rea requisite for an offence under section 379 is set out in the section itself and we cannot travel beyond it. So it is not the Indian law, and even as an English rule it rejects a mere pretention unless it was bona fide; and presumably there can be no bona fide claim if it was wholly-ill-founded: Dhirendramohan, In re1. Such a claim might be asserted by anybody even a thief! So the mere plea by an accused that the property with the theft of which he is accused is his own property, unsupported by proof by some circumstances which do not indicate that there is truth in the statement is insufficient. The claim must be tried and determined by the Court and must be proved by evidence to be fair and adequate though not necessarily acceptable or adequate in a civil Court for the making or refusing of a decree. Bhan Prasad v. The Emperor2. A mere colourable pretence to obtain possession of property cannot therefore be put forward as a bona fide claim of right. Bhan Prasad v. The Emperor2. A mere colourable pretence to obtain possession of property cannot therefore be put forward as a bona fide claim of right. Bhura Singh v. Emperor3 Gudar v. Emperor4and Panigrahi v. R. Das5. In such a case the jurisdiction of the criminal Court is not ousted: Madanlal v. King-Emperor6 and Advocate-General Orissa v. Bhikari Charon7. But in case of a clear plea of bona fide title the Court should leave the parties to have their rights determined by a civil Court and throw out the criminal case: Bhim Bahadur Singh v. Emperor8. But even where the bona fides of the claim is doubtful, the benefit of the doubt must be given to the accused and the criminal case thrown out. Not be it noted of every doubt for everything relative to human affairs and dependent on human evidence is open to some possible or imaginary doubts-but a reasonable doubt. Reasonable doubt is that condition of mind which exists when the Magistrate cannot say that they feel an abiding conviction, a moral certainty of the truth of the charge. For it is not sufficient for the prosecution to establish a probability even though a strong one according to the doctrine of chances, he must establish the fact to a moral certainty-a certainty which convinces the understanding, satisfies the reason, and directs the judgment. As was said by Cockburn, C.J., in the (1874) Tichborne case it must not be the mere doubt of a vacillating mind, that has not the moral courage to decide upon a difficult and complicated question and takes shelter in an idle scepticism-or as section 4 of the Indian Evidence Act has it a fact is said to be not proved when after considering the matters before it the Court either does not believe it to exist or considers its existence so improbable that a prudent man ought under the circumstances of the particular case, act upon the supposition it does not exist. This is essentially a question of fact and is dependent for its decision upon the circumstances of each case. Srinivasalu Reddiar v. Govinda Gounden9. The fact that the accused had repeatedly and for a length of time asserted his claim to the property would be some evidence of bona fides for it will then connect the taking with that claim. This is essentially a question of fact and is dependent for its decision upon the circumstances of each case. Srinivasalu Reddiar v. Govinda Gounden9. The fact that the accused had repeatedly and for a length of time asserted his claim to the property would be some evidence of bona fides for it will then connect the taking with that claim. But the mere fact that a claim was boldly asserted and persisted in after it has received quietus from the Court would not make it bona fide. Thus where a Magistrate issued an injunction to the accused but this he disregarded, held that it is impossible to find that he acted under bona fide claim of right: Sreenibash Mahta v. Emperor10 It may be material in considering as a question of fact whether the claim was a bona fide claim to consider whether or not there was any right at all because the complete absence of right and circumstances such as the Court would be justified in saying could not have led any reasonable man to a belief that he had a right: Srinivasalu Reddiar v. Govinda Gounden9. Similarly to test the adequacy of the bona fides of the claim it may be considered whether in asserting his right to some property which a person believes to be good, he does something which he knows he has no right to do, e.g., by taking the law into his own hands and removing the property from the possession of his opponent who claims the property for himself: Rangaswami v. King-Emperor11, Hari Bhuimali v. Emperor12, Reg v. Bhichajee13, Bhagwat Saran v. Emperor1 and Queen-Empress v. Sheomeshur Rai2. In such a case the bona fides might be destroyed by the fact that the proper course for accused would have been to have had recourse to the civil Court and not taken the law highhandedly into his own hands and remove the property. In all these cases the nature and extent of the right claimed must be shown before it can be permitted to have the effect of arresting the case in progress; it must be made to appear that it is not a mere cobweb right that is set up but that it is such as to raise a real and substantial doubt as to whom the property belongs. In the instant case the bona fide claim of right is set up on the foot of a partnership. In a partnership each partner is part owner of the business in the same way as each member of a joint family is a co-owner in the family estate. He is not a mere servant or agent employed for a special purpose; and being an owner he has as much right to enjoy and use the joint property for his own benefit as any other co-owner: Suganchand & Co. v. Laduram Balkisandas3. This assertion of a partnership seems to be something more than a colourable pretence as it is supported by the evidence of three witnesses who have not been discredited by both the courts below. It is not also the case for the complainant that though the taker was in joint possession of the property that joint possession had been converted into exclusive possession amounting to theft. The accused would have been guilty of committing theft in such a case: Queen-Empress v. Ponnurangam4. It must however be joint possession which is converted into exclusive possession and not merely joint title. In this respect the law of this country is not different to the English law under which there may be criminal conversion of partnership property so as to amount to theft: see 31 and 32 Vict., Ch. 116, section 1. This case-law is only an amplification of illustration (p) to section 378, Indian Penal Code: “A, in good faith, believing property belonging to Z to be A’s own property takes that property out of Z’s possession. Here, as A does not take dishonestly, he does not commit theft.” It embodies only the principle contained in section 79, Indian Penal Code, which protects acts done by a person justified, or by mistake of fact believing himself justified, by law. In the result, the removal of the property was in the assertion of a bona fide claim of right and which by evidence was shown to be more than a mere colourable pretence to obtain or get possession of the property, though probably it might turn out to be one which would not stand the test in a civil Court. This defence is valid and negatives dishonest intention which is the gist of the offence of theft. This defence is valid and negatives dishonest intention which is the gist of the offence of theft. The conviction and sentence of the accused cannot be supported and are hereby set aside and the accused is acquitted. The fine amount, if collected, will be refunded to him. K.S. ----- Accused acquitted.