JUDGMENT : Barman, J. - This revision is directed against an order passed by the Magistrate 1st class, Cuttack, convicting the accused-Petitioners u/s 427 Indian Penal Code and sentencing each of them to pay a fine of Rs. 40/- in default to rigorous imprisonment for fifteen days each in Case No. 725 C-1 of 1955. 2. The complainant was the owner of a plot of land No. 1157 and the accused-Petitioners were the owners of the adjoining plot of land No. 1158 at Mouza Banpur within police station Mahallga in district Cuttack. The prosecution case is that on August 4, 1955 the accused Petitioners had cut and removed the boundary ridge between these two adjoining plots during the temporary absence of the complainant and had constructed a new ridge after encroaching upon the complainant's plot No. 1157. The accused persons were charged with the offence of causing mischief u/s 427 Indian Penal Code. At the trial there were four witnesses called by the prosecution. The complainant P.W. 1 was not an eye-witness to the occurrence. P.W. 4 was a witness after the occurrence. The eye-witnesses to the alleged encroachment were P.W. 2, a former servant of the complainant, and P.W. 3, a day labourer. The defence called the Chakala Kanungo D. W. 1 who had submitted the report after spot enquiry. 3. The only point for consideration is whether on the facts it comes within the mischief of Section 427 Indian Penal Code. Mr. B.N. Misra, the learned Counsel appearing for the accused-Petitioners, argued that there was no finding by the learned Magistrate that there was any loss or damage for loss as to the extent of the damage as alleged. It appears that there are several versions as to the extent of the alleged encroachment. According to the complainant P.W. 2; the extent of the encroachment was 60 cubits in length and 8 cubits in breadth. The Chakala Kanungo D. W. 1 in his report Ext. B reported that the area in question is 15 ? 120 links which on calculation comes to about 7 ? 54 cubits. The learned Magistrate did not give any finding as to the extent of encroachment which results in the loss or damage. He only gave a finding that there was mischief without going into the extent of the alleged damage. 120 links which on calculation comes to about 7 ? 54 cubits. The learned Magistrate did not give any finding as to the extent of encroachment which results in the loss or damage. He only gave a finding that there was mischief without going into the extent of the alleged damage. The learned Magistrate has not given any finding as to the required ingredients of an offence u/s 427 Indian Penal Code. From the evidence the intention or the necessary knowledge on the part of the accused-Petitioners as to the likelihood of any loss or damage does not appear to have been proved nor is there any evidence as to the exact value of the property which is alleged to have been damaged. That being so, this case cannot come either u/s 426 or u/s 427 Indian Penal Code. 4. It was next contended on behalf of the accused-Petitioner that they had constructed the new ridge in the position where it was constructed under Bonafide claim of right. The learned defence Counsel relied on Ext. B which was the report of the Chakla Kanungo in connection with these proceedings. In the report, the Kanungo stated that he had examined seven witnesses from both sides and from their statement it was ascertained that in the month of last Jaista (May-June) when the complainant came to know that the accused-Petitioners had encroached upon his land by taking advantage of the complainant's absence from home (as he was a Government servant), he got the land measured and removed the old ridge from the place where, at the time of the enquiry, that is, in January 1956, the newly constructed ridge stood, in consultation with the accused-Petitioners and raised a new ridge at its correct position in between plot Nos. 1157 & 1158. The Kanungo further wrote in the report that after about two months, that is the day after the occurrence (in August 1955), when the agricultural operations were going on in the fields, the accused-Petitioners again cut and removed the new ridge and put it at its former position where it was beforehand. These were the facts as recorded by the Kanungo who reiterated this version of the case in his evidence before the trial Court. These were the facts as recorded by the Kanungo who reiterated this version of the case in his evidence before the trial Court. The Kanungo (D. W. 1) said that the ridge for which the complainant had filed this case was found by him to be a new one which was put by the accused at the former position where it was previously. In cross-examination the witness said that the ridge which was removed by the accused persons was put there through mutual consent of the persons i.e. in consultation with the accused persons. From the report of the Kanungo (ext. B) read with his evidence before the trial Court where he was called as a witness on behalf of the accused-Petitioners in defence, it is clear that there was some dispute as regards the boundary line between these two adjoining plots of land-plot Nos. 1157 and 1158. Mr. B.N. Misra, the learned defence Counsel, in support of his contention relied on a decision of this Court in Sada Panigrahi v. Raghunath Das 16 (1950) Cutt. L.T. 78, where the facts were similar to the present case arising out of a boundary dispute in respect of two adjoining plots of land. In this case Panigrahi, J. (as he then was) while setting aside the order of conviction and acquitting the accused persons held that while the action of the Petitioners was certainly high-handed, that act is nevertheless not incompatible with their intention not to cause any mischief to the complainant, but only to establish what they believed to be their right however ill-founded or misconceived. What the Criminal Court has to ascertain is not whether the act of the accused has resulted in any loss to the complainant but whether the necessary mens rea was responsible for the accused's committing the act. In view of the fact that the parties have been quarrelling over the boundary line for a long time, it would not be safe to dismiss the contention raised on their (Petitioners') behalf that they acted under a bonafide belief. So also the Madras High Court in Jambulingam Fmai v. Ponnuswami Pillai AIR 939 Mad. In view of the fact that the parties have been quarrelling over the boundary line for a long time, it would not be safe to dismiss the contention raised on their (Petitioners') behalf that they acted under a bonafide belief. So also the Madras High Court in Jambulingam Fmai v. Ponnuswami Pillai AIR 939 Mad. 400, in a criminal revision directed against an order of conviction passed by the Chief Presidency Magistrate, Madras, convicting the accused of an offence punishable u/s 426 Indian Penal Code, while setting aside the conviction on the same principles held that mens Tea is one of the essential ingredients of the offence of mischief and if the accused honestly believed in good faith that he had the right to do what he did, even if he did not in law have that right he cannot be said to have had the necessary intention or knowledge that he was likely to cause wrongful loss or damage. 5. I am satisfied that the prosecution failed to prove that the accused-Petitioners had any intention of causing loss to the complainant. What they did in cutting and removing the boundary ridge was under an impression, however mistaken it may be, that they had a claim to do so as of right. In this view of the matter, the order of conviction and sentence passed by the learned Magistrate cannot be maintained. 6. The result, therefore, is that the order of conviction and sentence is set aside and the accused Petitioners are acquitted. This revision is allowed. Final Result : Allowed