JUDGMENT : Misra, J. - The Petitioner has been convicted u/s 427, Indian Penal Code and sentenced to pay a fine of Rs. 100/ -, in default, to undergo R.I. for one month. The case of the complainant is that he has paddy land in plot 753 in Khata 150 in mouza Hiragobindapur in the district of Puri. Just adjacent to it to the east the accused has got paddy land- The lands are separated by an intervening ridge 250 cubits in length. The land of the complainant is at a higher level. In Falgun preceding the date of occurrence the complainant had repaired that ridge to relevant flow of water from his land to that of the accused. At about 10 a. m. on 18-8-1963, the accused cut the ridge about 200 cubits in length. On complainant's protest he was threatened with assault. The plea of the accused was a complete denial of the occurrence. His case is that the complainant wanted to purchase his land and the case has been falsely foisted on account of is refusal. 2. The Courts below concurrently recorded the following findings: (i) Plot 753 stands at a level higher than the land of the accused to the contiguous east. (ii) The accused demolished the ridge in the month of August and the water from the complainant's field was drained out into the field of the accused. (iii) The value of the loss sustained by the complainant is about Rs. 150/ (iv) There is no evidence on record that the complainant was the owner of the disputed ridge either exclusively or jointly with the accused. (v) The complainant had repaired the ridge in the month of Falgun about 5 months proceeding the date of occurrence. The conviction is based on the conclusion that even if the ownership of the ridge belongs to the accused, he was not entitled to cut it. The learned advocates for both the parties do not challenge the first four findings. The objection to the fifth finding is not entertainable as it is based on some evidence. Thus the judgment proceeds on the basis that all findings are correct. 3. u/s 427, Indian Penal Code, whoever commits chief and thereby causes loss or damage to the amount of Rs. The objection to the fifth finding is not entertainable as it is based on some evidence. Thus the judgment proceeds on the basis that all findings are correct. 3. u/s 427, Indian Penal Code, whoever commits chief and thereby causes loss or damage to the amount of Rs. 50/ - or upwards shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 'chief' is defined in Section 425, Indian Penal Code: Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'chief'. Explanation 2 lays down that chief may be committed by an act affecting property belonging to the person who commits the act, or to that person and other jointly. 4. The conviction is based mainly on the basis of the contents of this Explanation. The learned Courts below are of opinion that even if the ridge belongs to the accused, he committed the offence of chief by cutting his own ridge so as to cause loss to the land of the complainant by draining out the water. Mr. Das challenges this view as being contrary to law. 5. The section indicates intent to cause or knowledge of the likelihood that loss or damage would be caused in the alternative. In this case, the accused must be attributed to having the knowledge that it was likely to cause loss or damage to the complainant's land by the cutting of the ridge. In fact, loss or damage had occurred to the property of the complainant by destruction of the ridge. Thus most of the ingredients of the section have been fulfilled. The only question for consideration is whether the accused had caused wrongful loss or damage to the complainant. The word "wrongful" qualifies both 'loss' or 'damage'. Section 23, Indian Penal Code defines "wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. The only question for consideration is whether the accused had caused wrongful loss or damage to the complainant. The word "wrongful" qualifies both 'loss' or 'damage'. Section 23, Indian Penal Code defines "wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. In order that the loss becomes wrongful, two essential qualifications have been imposed: (i) the loss of the property must be caused by unlawful means; and (ii) The person losing must be legally entitled to such property in other words, he must have some legal right in that property. In order to establish that he has sustained a wrongful loss, the complainant must prove that he has some legal right to the disputed ridge and the loss had been caused to it by the accused not by lawful but by unlawful means. 6. On the finding that the complainant has no owner ship to the disputed ridge, either exclusively or jointly with, the accused, he has failed to prove that he has any legal right in the disputed ridge. If the complainant has no legal right, there are no materials to establish that the cutting of the ridge by the accused was not in the exercise of his own rights but by unlaw. full means. At the least the plea of the accused that he cut the ridge in exercise of a bona fide claim of right cannot be negatived. Thus the accused cannot be said to have caused wrongful loss or damage. One of the essential ingredients of the section is not satisfied and the Petitioner is entitled to benefit of doubt. The learned Courts below suffer from a confused thought in taking the view that the Explanation 2 contains all the ingredients of the offence which are found in the main section. The Explanation merely clarifies one point that chief may be committed by an injury to one's own property if other conditions are satisfied. This is exactly what they overlooked. 7. Some authorities may be noticed in support of the aforesaid legal concept. In Tun Aung v. Emperor 7 Cri.L.J. 448 the accused closed a watercourse without obtaining any permission to do so thereby preventing water from finding its way to certain fields below the place where he closed it. This is exactly what they overlooked. 7. Some authorities may be noticed in support of the aforesaid legal concept. In Tun Aung v. Emperor 7 Cri.L.J. 448 the accused closed a watercourse without obtaining any permission to do so thereby preventing water from finding its way to certain fields below the place where he closed it. It was held in that cases that there was nothing to show that the complainant's legal right to the watercourse. Complainant's legal right to the water intercepted by the accused not being proved, wrongful loss was held to be non-existent and the conviction was set aside. In In re: Athi Ayyar AIR 1921 Mad. 322, the complainant had a wall on the boundary of the accused's land. The complainant did not allow the accused to lean his rafters of a building on the complainant's wall. There upon the accused dug a trench along his own land in places going down to lower levels than the foundation of the complainant's wall. The High Court held that the accused did it deliberately to annoy the complainant and the probable effect of the digging was that the complainant's wall in course of time would subside. The conviction was, however, set aside on the ground that it was not unlawful to do something on one's own land without trespassing on the neighbour's land, though it causes injurious effect to the property of the neighbour. Reliance was placed on the following passage in Dalton v. Angus L.R. (1981) 6 A.C. 740. It is the law, I believe, I may say without question, that at any time within 20 years after the house is built, the owner of the adjacent soil, may with perfect legality dig that Boil away, and allow his neighbour's house, if supported by it, to fall in ruins to the ground. Their Lordships acquitted the accused on the ground that the complainant failed to prove that he had acquired a prescriptive right to lateral support to his wall from the adjacent land belonging to the accused. In this case, the complainant has also not proved the prescriptive right to the ridge. His repairing the ridge once in Falgun does not give him such a right. At any rate, it does not negative the accused's claim of a bona fide right. In Punjaji Bagul v. Emperor AIR 1935 Bom. In this case, the complainant has also not proved the prescriptive right to the ridge. His repairing the ridge once in Falgun does not give him such a right. At any rate, it does not negative the accused's claim of a bona fide right. In Punjaji Bagul v. Emperor AIR 1935 Bom. 167, the accused installed an oil engine in his own property. By its working, it caused damage neighbour's property. Their Lordships held that the accused would be liable to a Civil suit for damages, but it is impossible to say that the damage was caused by unlawful means, the working of the engine on the accused's own property being a lawful act. 8. On the aforesaid discussion, conclusion is irresistible that the accused cannot be said to have committed wrongful loss or damage, though it is open to the complainant to establish a civil suit that he is exclusively or jointly entitled to the ridge and that by cutting it, the accused had caused damage. 9. In the result, tile conviction and sentence are set aside and the Petitioner is acquitted. Fines, if paid, be refunded. The revision allowed. Revision allowed. Final Result : Allowed