JUDGMENT : Narasimham, C.J. - This is a petition in revision against the appellate judgment of the Additional Sessions Judge, Berhampur, maintaining the order of a First Class Magistrate of Berhampur, directing the Petitioner to pay compensation of Rs. 30/- u/s 250(5) Code of Criminal Procedure to each of the accused persons (opposite party) against whom he had brought a case of theft. 2. On 10-12-1956 The Petitioner filed a complaint before the Sub-Divisional Magistrate of Berhampur, against the two members of the opposite party alleging that on 5-12-1956 they cut and carried away paddy crops from 2 acres 14 cents of land in village Kumarada, which according to the Petitioner (complainant) were in his possession since 1951. In due course the accused persons were placed on trial and the Petitioner examined himself and two other witnesses, viz., p.Ws. 2 and 3 to prove his case. The defence taken by the accused persons was that the entire case was false and was instituted mainly with a view to compel them to give up possession of the disputed property which was all along in their possession. The learned Magistrate accepted the defence version and acquitted the accused persons by his order dated 12-12-1958 observing that the prosecution case was false, frivolous and vexatious. He then called upon the Petitioner (complainant) to show cause should not be directed to pay compensation u/s 250 Code of Criminal Procedure to the accused persons; and after hearing the show cause petition he passed orders on 29-12-1958 directing him to pay Rs. 30/- as compensation to the opposite party. Though in this order he did not expressly reiterate his previous finding that the case was false, frivolous and vexatious he has impliedly said so by concluding that compensation to the opposite party was fully justified, after rejecting the various contentions put forward by the Petitioner. The lower appellate Court has committed a minor mistake in observing that the trial court did not find the case to be 'false'. Apparently, the lower appellate Court is under the wrong impression that even if a case is not proved to be false the complainant may be directed to pay compensation u/s 250 Code of Criminal Procedure if it is found to be frivolous or vexatious. The language of Section 250 Code of Criminal Procedure does not justify an inference. Apparently, the lower appellate Court is under the wrong impression that even if a case is not proved to be false the complainant may be directed to pay compensation u/s 250 Code of Criminal Procedure if it is found to be frivolous or vexatious. The language of Section 250 Code of Criminal Procedure does not justify an inference. That section clearly says that unless the Magistrate is of opinion that the accusation against the accused is "false and either frivolous or vexatious" a Magistrate cannot take action under that section for awarding compensation to the accused. The case should therefore, first be pronounced to be false. Every false case need not necessarily be either frivolous or vexatious. The section therefore contemplates that the Magistrate must come to a finding (i) that the case is false and (ii) that it is frivolous or vexatious. The trial court has clearly a said so in its judgment and the lower appellate Court should nor-have committed this mistake while construing that judgement. 3. On facts, however, I am inclined to agree with the two lower courts that there was absolutely no basis for the case started by the Petitioner against the accused persons and that it was initiated with some ulterior motive. The admitted facts are as follows. The disputed lands originally belonged to one Maguni Pradhan, who went to Burma leaving the property in charge of his mother. His mother sold away some portions of the same amounting to about 84 cents in acre, to the father of the two accused persons. When Maguni returned from Burma he brought a suit for recovery of possession of the property He succeeded before the Munsif but on appeal the learned subordinate Judge reversed the judgment of the Munsif and dismissed the suit. After delivery of judgment of the Sob ordinate Judge, the executing court directed delivery of possession of the property to the members of the opposite party. The Petitioner then objected alleging that he was a mortgagee Maguni Pradhan by virtue of deed of mortgage dated 18-11-1953. His objection was over ruled by the executing court on 23-12-153 and possession was delivered to the two members of the opposite party. The Petitioner then objected alleging that he was a mortgagee Maguni Pradhan by virtue of deed of mortgage dated 18-11-1953. His objection was over ruled by the executing court on 23-12-153 and possession was delivered to the two members of the opposite party. The complainant further admitted, in his deposition before the Magistrate that when he took a mortgage of the property from Maguni Pradhan in 1933 he was fully aware of the litigation between Maguni and the two members of the opposite Party and also about the success of the latter in the appellate court. He has therefore, tried to ante-date the mortgage by saying that there was a previous agreement dated 2-6-1931 to mortgage the property. Whatever that may be, the admitted position is that the complainant was fully aware that delivery of possession of a portion of the disputed property amounting to 84 cents had been given to the opposite party as early as 1953 in the execution case. He also admitted this in his deposition. 4. Having thus failed in his objection before the executing Court the complainant has been trying several other methods to obtain possession of the property. He filed this criminal case on 10-12-1936 and also another case u/s 144 Code of Criminal Procedure which was dismissed. 5. Maguni Pradhan went up in appeal to the High Court against the judgment of the subordinate Judge dismissing his suit and the High. Court in Maguni-Padhano v. Lokonanidhi Lingaraj Dora and Ors. ILR 1956 Cutt 24 reversed the judgment of the subordinate Judge and decreed the suit for recovery of possession on condition that Maguni pay Rs. 100/- as compensation to the opposite party before taking delivery of possession of the property. But Maguni did not avail himself of this portion of the High Court's order in his favour. On the other hand, he entered into a compromise with the opposite party and, on 13-2-1957, allowed his execution case to be dismissed. In that compromise petition he conceded that the judgment-debtors, viz., the opposite party, would continue to remain in possession of the disputed property. Not content with that, he also executed a registered deed on 12-2-1957 in which he admitted that the so called mortgage transaction with the present complainant, Basudeb Patnaik, was undertaken, benami with a view to harass the opposite party and that the lands were never in possession of Basudeb Patnaik. Not content with that, he also executed a registered deed on 12-2-1957 in which he admitted that the so called mortgage transaction with the present complainant, Basudeb Patnaik, was undertaken, benami with a view to harass the opposite party and that the lands were never in possession of Basudeb Patnaik. 6. The entire criminal case must, therefore be viewed in the background of the aforesaid civil litigation. The complainant obtained a mortgage deed from Maguni when the latter was in the midst of his litigation with the opposite party and at a time when delivery of possession of a portion of the property had been given to the opposite party. It is true that Maguni eventually succeeded in the High Court, but the High Court did not direct delivery of possession to him until he paid a certain sum as monetary compensation to the opposite party. He never paid the aforesaid sum but entered into a compromise with them and allowed them to continue in possession of the property. He also, in his registered deed dated 12-2-1957 admitted that the so called mortgage in favour of the complainant was a benami transaction. The complainant also tied to correct the accused by filing applications under Sections 144 and 145 Code of Criminal Procedure but these were decided against him. 7. Apart from the aforesaid instances which show how the complainant has been successively trying to oust the opposite party from the property, the evidence adduced in the Criminal case regarding the complainant possession was practically worthless. The complainant's statement that he was in possession of the property from 1931 was admittedly untrue because in cross-examination he was compelled to admit that the Civil Court delivered possession to the opposite party after the judgment of the lower appellate Court in the civil litigation. His two witnesses were rightly disbelieved by the trial Court. P.W. 2 has no lands near the disputed property and p.w. 9 is a servant of the complainant. The trial Court was therefore, justified in holding that the complainant's story about his having raised crops on the disputed property was false and that the criminal case was brought merely with a view to harass and coerce the accused persons. 8. Mr. Panda for the Petitioner raised two contentions. The trial Court was therefore, justified in holding that the complainant's story about his having raised crops on the disputed property was false and that the criminal case was brought merely with a view to harass and coerce the accused persons. 8. Mr. Panda for the Petitioner raised two contentions. Firstly he urged that as admittedly the crops were taken away by the accused persons from the disputed field the complainant story was substantially true and merely because he failed to prove his possession be should not have been directed to pay compensation u/s 250 Code of Criminal Procedure This argument is incorrect. The substance of the allegation against the accused persons was that they dishonestly cut and carried way paddy crops from certain fields which were all along in his possession and on which he had raised crops. Once it is found that this story is untrue and that the complainant was never in possession of these lands, his complaint must be held to be false, notwithstanding the fact that the accused persons admitted having cut and carried away the crops alleging that they had grown the same. It is the allegation a bout dishonest removal of crops from the possession of the complainant that is the essence of the offence of theft and once that allegation has been found to be false, the entire case against the accused persons must be held also to be false. 8.1 Mr. Panda then contended that the civil litigation between Maguni Pradhan and the accused persons (opposite party) was in respect of 84 cents only, whereas the complaint related to 2.14 acres. He therefore urged that in respect of the remaining portion of the disputed property there was no justification for the accused persons to cut away the crops. If the Petitioner had led any evidence worth the name to show that he was in possession of the remaining portion of the property and that the opposite party cut away crops raised on that portion, there may be something in favour of this argument. But the complainant's evidence on the question of possession is quite unbelievable. Moreover, his so called mortgagor Maguni Pradhan had in a registered deed stated that the entire transaction with the complainant was benami and that he was never in possession. 9. It must accordingly be held that the entire allegation of the complainant was false. But the complainant's evidence on the question of possession is quite unbelievable. Moreover, his so called mortgagor Maguni Pradhan had in a registered deed stated that the entire transaction with the complainant was benami and that he was never in possession. 9. It must accordingly be held that the entire allegation of the complainant was false. The lower Courts were therefore justified in directing him to pay compensation to the opposite party and I see no ground for interference. 10. The revision petition is dismissed. Final Result : Dismissed