JUDGMENT : Ahmad, C.J. - Petitioner Binayak Swain is aged about 70 years, is the father of the other Petitioner Keshab Chandra Swain. Both of them have been convicted u/s 379, Indian Penal Code for the theft of the standing crop on a portion of survey plot No. 504 of village Talasakara, P.S. Gangapur in the district of Ganjam. This removal of the crop occurred on 16-11-1962. The sentence imposed on both the Petitioners is one of fine of Rs. 100/- on each of them in default, each of them has been directed to undergo rigorous imprisonment for a period of one month. 2. It is the admitted case of the parties that the original owner of this plot was Binayak Swain, but subsequently there was a money decree obtained against him in execution of which the plot in dispute was got auction sold and purchased sometime in 1946 by P.W. 1 who was the decree-holder himself. Thereafter, on the basis of the auction purchase the father of Plaintiff got delivery of possession on or about 17-5-1946. It however so happened that in the various litigations that followed thereafter between the parties in respect of this land, possession over it passed from one to the other on a number of occasions, but ultimately it was the complainant's party who got delivery of possession over it, on 4-8-1961, on the basis of certain orders passed in a restitution proceeding. It appears that against the order passed in the restitution proceeding there is already leave to appeal granted by the Supreme Court and the matter is still pending there for disposal. In the meantime it is said that the prosecution party on the basis of the delivery of possession effected in its favour on 4-8-1961 had come in possession of it and thereafter grown paddy crop thereon. The prosecution case is that this paddy crop while it was still standing in the field was stealthily taken away by the Petitioners on 16-11-1962 and therefore they are liable for conviction u/s 379, Indian Penal Code. 3. The prosecution case is that this paddy crop while it was still standing in the field was stealthily taken away by the Petitioners on 16-11-1962 and therefore they are liable for conviction u/s 379, Indian Penal Code. 3. In law it is well established that if property is taken away under a bona fide claim of right it will not amount to an offence u/s 379, Indian Penal Code even though the claim may be ill founded in fact or in law-as held in Abdul v. Emperor AIR 1929 Pat 80 and in Jhumak v. Emperor AIR 1941 Pat 349. Even then, as observed by Fazl Ali J. as he then was in Abdul v. Emperor AIR 1929 Pat 80- it must however be remembered that the claim put forward by the accused must be an honest one and will be of no avail to him as a defence, if it is found to be a mere colourable pretence to obtain and keep possession of the property. Accordingly in order to find out whether the claim put up by the accused in a case like this is a bona fide one or only a colourable pretence, the guiding rule has been laid down therein that in cases where the alleged theft consists in the removal of crops grown on land, the most vital question to be investigated is as to whether of the parties had grown the crops and a decision of this point will, in the majority of cases, enable the Court to come to a definite conclusion as to whether the claim of the accused is made in good faith or is a mere pretence. It is true that this rule as has been laid down for the purpose of guiding the court to find out whether the plea set up by the accused is a bona fide one or a mere pretence, can at best be treated only as a general principle and circumstances may vary wherein other factors may also be found necessary to be taken into consideration. Unfortunately, in the present case there is a clear finding given by the last court of facts that after the delivery of possession which was effected on 4-8-1961, the land has all along been in possession of the successful party and the paddy crop which is the subject matter of the present charge, was grown by that party. Unfortunately, in the present case there is a clear finding given by the last court of facts that after the delivery of possession which was effected on 4-8-1961, the land has all along been in possession of the successful party and the paddy crop which is the subject matter of the present charge, was grown by that party. There is nothing brought before me to suggest that this finding arrived at by the lower appellate court is either perverse or is not based on the materials on the record. It is clearly stated by the lower appellate court that- it is proved by documentary as well as oral evidence that this survey number was purchased by P.W. 1 in court sale in 1946 and there were restitution proceedings. Subsequently, by virtue of the order dated 3-1-1961 of the Hon'ble High Court survey No. 504 was delivered to P.W. 1 by a court amin deputed to the spot by the Munsif of Aska on 4-8-1961. The contention of the Petitioner is that there was no real delivery of possession. But the evidence of P.W. 6 the process server P.W. 7 the Village Karnam who accompanied the process server and P.W. 8 a local man, coupled with the documentary evidence of Exts. 1, 2, 3, 4, 5, 10 and 11, establishes beyond a shadow of doubt that the land was duly delivered to P.W. 1 on 4-8-1961 in the presence of Appellant No. 1. These witnesses have deposed that P.W. 6 the process server circumscribed the land before delivery to P.W. 1. The evidence of p. ws. 1, 2, 3, 5, and 8 shows that since that date (4-8-1961) P.W. 1 had all along been in cultivating possession on the disputed land. That being so the Court below, I think has rightly drawn the conclusion that in the present case it was the prosecution party which was in possession of the land on the date of occurrence and it was that party which had grown the crop (which is the subject matter of the present litigation) on that land. 4. No doubt there is already an appeal pending in the Supreme Court in relation to the restitution proceeding but that by itself cannot be a ground for holding that the aforesaid finding as given by the lower appellate court is not correct. 4. No doubt there is already an appeal pending in the Supreme Court in relation to the restitution proceeding but that by itself cannot be a ground for holding that the aforesaid finding as given by the lower appellate court is not correct. Nor is there any material on record to support the plea missed by the accused persons that though on paper there was delivery of possession effected on 4-3-1961 to the prosecution party, but in fact that party never came in possession thereof, on the basis of that delivery. I think in these circumstances in the absence of any other materials on record, the law as laid down in the aforesaid decision in Abdul and Another Vs. Emperor, is applicable here on all fours. 5. I therefore hold that the guilt of both the Petitioners has been proved beyond reasonable doubt. In the alternative however it has been contended on their behalf that in any case in a case like this the sentence of fine of Rs. 100 against each of them is excessive especially in view of the fact that the crop which they are alleged to have removed was soon thereafter seized by the police. I think this part of the submission made on behalf of the Petitioners on the question of sentence is not altogether ill founded. In that view of the matter, therefore, the sentence of fine against the Petitioners is reduced to a fine of Rs. 25. (Rupees twenty-five) each in default, each of them shall undergo rigourous imprisonment for a period of fifteen days. 6. The application is accordingly dismissed subject to the modification in the sentence as stated above. Final Result : Dismissed