JUDGMENT H.C.P. Tripathi, J. - This appeal by the State of Uttar Pradesh is directed against an order of acquittal recorded by the temporary Civil & Sessions Judge, Bulandshahr, on appeal in a case under Section 379 I.P.C. 2. The prosecution case in brief is as follows: On September 5, 1963 the Gram Sabha of village Danpur decided to sell by auction a ruined Khandhar in the village. The auction was held on October 2, 1963 and the bid of Rs. 1,175/- made by respondent Tota Ram being the highest was accepted and he was required to pay one-fourth amount within four days. Respondent did not deposit the amount within the prescribed period and on October 6, 1963 he gave a notice (Exhibit Kha 1) to the village Pradhan raising certain objections and pointing out that he would not deposit the one-fourth amount till his objections were removed. The Pradhan immediately informed him in writing that he should have considered those points before making the bid and in accordance with the terms of the auction he should pay one-fourth amount of the bid immediately otherwise in default the land will go to the next bidder. Respondent took no action, did not deposit the one-fourth amount and from December 18, 1963 began cleaning the Khandhar and taking out bricks from there. According to the prosecution complainant asked him several times not to do so but without any effect. On December 24, 1963 complainant gave a notice (Exhibit Kha 1A) asking the respondent to desist from removing the bricks and causing loss to the property of the Gram Sabha. In response to this notice respondent alleged that he had already paid the one-fourth amount of the bid to the Pradhan on October 9, 1963 and that if he did not want the Khandhar to go to him he should return the amount. The Pradhan by his letter dated December 31, 1963 repudiated the allegation and again asked the respondent not to take out bricks from the Khandhar. But the respondent did not pay any heed to it. Ultimately on January 3, 1964 the Pradhan made an application to the Tehsildar complaining against the respondent on the basis of which a case was registered and after investigation the respondent was sent up for trial. 3. At the trial respondent pleaded not guilty and denied to have removed any bricks from the Khandhar. Ultimately on January 3, 1964 the Pradhan made an application to the Tehsildar complaining against the respondent on the basis of which a case was registered and after investigation the respondent was sent up for trial. 3. At the trial respondent pleaded not guilty and denied to have removed any bricks from the Khandhar. He also stated to have paid Rs. 297.75 np. to the Pradhan which represented one-fourth of the bid money and attributed his implication in the case due to enmity with him. 4. The prosecution case of the respondent having bade at the auction and thereafter removed the bricks was supported by Pradhan Suresh Chand (PW 1), the two labourers Budh Sen and Jafar Uddin (PWs. 2 and 3) who had been employed by the respondent for that purpose, and two other residents of the village Har Prasad and Tahir Singh (PWs 4 and 5). 5. Respondent examined one Dauji Ram in support of his case that a sum of Rs. 293.75 np. was paid by him to the Pradhan in his presence. 6. The trial Magistrate rejected the defence evidence as false, held that the respondent dishonestly removed the bricks from the Khandhar without depositing the one-fourth of the bid money and thereby committed an offence under Section 379 I.P.C. He, therefore, convicted and sentenced him to 18 months' rigorous imprisonment. 7. On appeal the learned Sessions Judge upheld the findings of fact arrived at by the trial Magistrate to the effect that the respondent had not paid one-fourth of the auction money and had removed the bricks from the Khandhar. He was, however, of opinion that even then the respondent `had at least a fair pretence and bonafide claim, however, weak' and being the auction purchaser of the Khandhar he could think that he had a right to remove the bricks from it and as there was no evidence to show that the bricks were removed secretly no inference of a guilty mind could be made against him. Accordingly he set aside the conviction and sentence of the respondent and allowed his appeal. In arriving at this conclusion the lower appellate court placed reliance on a judgment of the Supreme Court in the case of Suvvari Sanyasi Apparao and another v. Boddepalli Lakshminarayana, 1962 AWR 284 SC. 8. We have heard learned counsel for the parties and have gone through the evidence on record. In arriving at this conclusion the lower appellate court placed reliance on a judgment of the Supreme Court in the case of Suvvari Sanyasi Apparao and another v. Boddepalli Lakshminarayana, 1962 AWR 284 SC. 8. We have heard learned counsel for the parties and have gone through the evidence on record. We agree with the finding of the courts below that the respondent had not paid the one-fourth amount of the auction money and his claim on that account was false and has been rightly rejected by them. 9. The question which arises far consideration, therefore, is whether in it the circumstances of the case the respondent could claim any semblance of title to the Khandhar from which he continued removing the bricks for several days inspite of the protest of the Pradhan or he could have reasonably entertained the belief that he had a bonafide claim over the same. 10. It is true that where property is removed in the assertion of a contested claim of rights, however ill founded that claim may be, the removal thereof does not constitute theft but it is also true that such an act of taking does amount to theft if there be not only no legal right but no appearance or colour of legal right. By the expression `colour of legal right' is meant not a false pretence, but a fair pretence, not a complete absence of claim but a bonafide claim, however weak. And if on the facts of the case a conclusion is inescapable that the offender was not acting in exercise of a bonafide claim of right then his conviction must follow. 11. In the instant case when the respondent failed to deposit one-fourth of the auction money which was a condition requisite for vesting a contingent title in him to the Khandhar he lost whatever claim he had to it. The fact that the respondent did not believe in good faith that he had a right to the Khandhar is proved by the circumstance that when the Pradhan wrote to him that unless he deposited the one-fourth amount the property would go to the next highest bidder he at once claimed, though falsely, to have made such a deposit. The fact that the respondent did not believe in good faith that he had a right to the Khandhar is proved by the circumstance that when the Pradhan wrote to him that unless he deposited the one-fourth amount the property would go to the next highest bidder he at once claimed, though falsely, to have made such a deposit. In these circumstances we are of opinion that it is difficult to hold that the respondent had any semblance of claim or colour of legal right over the Khandhar or entertained a belief in good faith that he had such a right to it. The question, therefore, which arises for consideration is whether the respondent committed theft when he removed the bricks from the aforesaid Khandhar? Dishonesty is an essential ingredient of an offence of theft. If a person dishonestly appropriates any movable property in order to cause gain to himself and loss to another he is said to have committed theft. In the instant case it is obvious that when the respondent removed the bricks from the Khandhar he had no other intention but to cause unlawful gain to himself at the expense of the Gram Sabha. He did so dishonestly is evident from the fact that he knew that he had no title to it and that is why he made a false assertion to have paid the Chaharum dues to the Pradhan. We are, therefore, satisfied that the learned Sessions Judge was wrong in holding that the respondent had at least a fair pretence and a bonafide claim to the Khandhar. It is difficult to believe that the respondent who had challenged the regularity of the auction by his letter dated October 6, 1963 and had clearly asserted not to pay one-fourth amount of the auction money unless his objections had been removed would have paid the same only three days after to the Pradhan without obtaining any receipt from him. The decision of the Supreme Court in the case of Suvvari Sanyasi Apparao and another relied upon by the learned Sessions Judge is distinguishable on facts. There the appellants had a semblance of title to the property having purchased it under a registered deed of sale and having paid for it. In these circumstances the Supreme Court held that where a bonafide claim of right existed it could be a good defence to a prosecution for theft. There the appellants had a semblance of title to the property having purchased it under a registered deed of sale and having paid for it. In these circumstances the Supreme Court held that where a bonafide claim of right existed it could be a good defence to a prosecution for theft. 12. In the result this appeal is allowed. The acquittal of the respondent is set aside. He is convicted for an offence under Section 379 I.P.C. and sentenced to a fine of Rs. 300/-. In default of payment of fine he will undergo three months' rigorous imprisonment. Respondent is allowed two months' time to deposit the fine. ,