JUDGMENT : Ray, J. - This is an appeal by the complainant u/s 417(3), Code of Criminal Procedure from the judgment of acquittal dated 27-6-1966 passed by Sri B.K. Patnaik, Magistrate (Judicial), 1st class, Sambalpur in I.C.C. Case No. 232 of 1965. 2. There is a land locally known as Jharherna Pipal Banki comprising four dulis in Khunti No. 11 H.C. plot No. 1104. This land belongs to two brothers by name Kuber Kalo and Minaketan Kalo. By a deed of mortgage dated 7-6-1939 these two brothers mortgaged the land in favour of the brother of the complainant, and delivered possession to him. This mortgage-deed has been proved as Ext. 1. According to the terms of this deed, the mortgagee is to cultivate and enjoy the land and appropriate the produce towards interest of the mortgage-loan and if the mortgagors are unable to redeem their property within ten years of mortgage, they shall forfeit their right of redemption and the mortgagee shall be the absolute owner thereof. The mortgagee got possession of the land in pursuance of the mortgage-deed and thereafter by a family arrangement between him and his brothers, the land was cultivated by the present complainant, a younger brother of the mortgagee. He also raised paddy crops in the year 1965. On 5.11-1965 the accused persons cut away the paddy from the two dulis of land. They were, therefore, prosecuted u/s 379, Indian Penal Code, but ultimately acquitted as aforesaid.' 3. The defence plea is one of a denial. 4. The prosecution has examined six witnesses and proved the mortgage-deed while the accused examined one defence witness. 5. The trial Court has returned the following findings: (i) The mortgagee and thereafter his brother the complainant are in possession of the land from the date of mortgage till the date of occurrence and the complainant cultivated the land and raised paddy crops in the year of occurrence. (ii) d.w. 1 is not to be believed. (iii) The accused persons have removed paddy crops from the disputed land on the date of occurrence. 6. Despite these findings, he has", acquitted the accused on the ground that they acted under bona fide claim of right. (ii) d.w. 1 is not to be believed. (iii) The accused persons have removed paddy crops from the disputed land on the date of occurrence. 6. Despite these findings, he has", acquitted the accused on the ground that they acted under bona fide claim of right. He says that u/s 17 of the Orissa Money-lenders' Act, 1939, the mortgage stood extinguished on expiry of 15 years from the date of mortgage, that is to say, it must be deemed to have been redeemed with effect from 7-6-1964. The title reverted to the accused and in exercise of their bona "fide belief that they bad a right to go upon the land, cut away the standing paddy, they did so. They cannot, therefore, be held to have entertained any dishonest intention in respect of their act of removal of the paddy crop. 7. The only point for consideration, therefore, is whether in cutting and removing the paddy from the land in actual possession of the complainant, the accused persons can be said to have done the same dishonestly and whether the said removal was for the purpose of wrongful gain t themselves, or causing wrongful loss to the complaint. 8. This doctrine of bona fide claim of right has come in for consideration in many judicial decisions in various High Courts as wen as of the Supreme Court. In the case of Chandi Kumar Das Karmarkar and Another Vs. Abanidhar Roy the Supreme Court has laid down the following propositions in relation to the said doctrine bearing on the offence of theft: (i) Offence of theft is not complete without existence of dishonest intention known as animus furandi in the person who removes any movable property out of the possession of another without the latter's consent. (ii) The intention is dishonest when the accused intended to came wrongful gain to himself and wrongful loss to the other. (iii) Where an act of taking is done under a claim of right made in good faith and such a claim is a reasonable one, it, does not amount to theft. (ii) The intention is dishonest when the accused intended to came wrongful gain to himself and wrongful loss to the other. (iii) Where an act of taking is done under a claim of right made in good faith and such a claim is a reasonable one, it, does not amount to theft. (iv) Even though the claim is made under a mistaken notion of Jaw, yet the act of removal done in enforcing such claim would be saved from being 'theft', provided the accused honestly believes in such claim and further believes that the property taken by him is his and that he has a right to take the same. (v) It will always be a question of fact, when such a plea is raised by the accused, whether such belief exists or not. 9. Thus, a plea of bona fide claim of right has always a reference to existence of an honest belief in the mind of the accused that he has a legal right the property he takes. A claim of right is said to be bona fide when there is either a legal right or appearance of a legal right or colour of a legal right. Colour of legal right has been explained to mean a fair pretence of a right or a bonafide claim of right however weak 10. Mere existence of right, appearance or colour of a legal right in the facts and circumstances of a particular case would not exonerate the accused. He must claim such a right and the claim must be bona fide, that is to say, he must honestly believe that he has such a right. So every Court, before giving full effect to the plea of bona fide claim of right, which is always a good defence for prosecution for theft, must find out if such belief existed and the claim was bona fide. Bona fide character of the claim of right and belief of the accused in the same are interconnected matters. Bona fide character tends to establish the requisite belief in the accused. For reaching such a conclusion, the other factors which pointedly but collaterally arise for consideration are: (a) reasonableness of the claim; (b) existence of a dispute between the accused and the complainant and (a) Denial of participation in the Act whose criminality is in question. Bona fide character tends to establish the requisite belief in the accused. For reaching such a conclusion, the other factors which pointedly but collaterally arise for consideration are: (a) reasonableness of the claim; (b) existence of a dispute between the accused and the complainant and (a) Denial of participation in the Act whose criminality is in question. Plea of denial is certainly indicative of existence of a dishonest intention, but, if alongside such plea the accused has alternatively tried to establish his bona fide claim of right or to show existence of a bona fide dispute then the plea may be ignored as a false one. 11. The existence of an antecedent dispute between the complainant and the accused in regard to the property in respect of which theft has been committed is always a factor which lends colour to the bona fide claim and makes it reasonable and fair and probabilises as honest belief in the mind of the accused that the property he takes is his, and that he has a right to the same. Even where there is no pre-existence of a dispute proved, yet it may be possible from other facts and circumstance to arrive at the conclusion that the accused made his claim of right in good faith, and that such claim is a fair and reasonable one. Some decisions have laid down that in cases of theft of paddy the vital test to apply to decide whether the claim of the property is a bona fide claim or a false pretence, is to find out as to who was in possession of the land And grew the crop. With great respect to the learned Judges who decided those cases, I must say that the vital test cannot be as to who grew the crop. If the accused grew the crop there cannot be any question of theft and this doctrine cannot he invoked. So it must be a case where all the ingredients of offence of theft must ostensibly be present, but by reason of application of this doctrine it would not amount to theft, that means, the animus furandi would be wanting. In other words, the complainant must have grown the crop and the accused must have cut the same. So it must be a case where all the ingredients of offence of theft must ostensibly be present, but by reason of application of this doctrine it would not amount to theft, that means, the animus furandi would be wanting. In other words, the complainant must have grown the crop and the accused must have cut the same. But, however, it is not necessary in this Case to decide the question of vital test since on other considerations the doctrine has been held to be inapplicable. 12. Raving the aforesaid legal principles in mind, let us scan the evidence to find out if this doctrine of bona fide claim of right which has been applied by the trial Court can be successfully invoked. 13. Under the mortgage-deed, Ext. J, possession of the lands was delivered to the complainant-mortgagee, and it was stipulated therein that the right of redemption of the mortgagor shall be extinguished at the end of the 10th year from the date of mortgage and the transaction shall be deemed to be a sale out and out, In other words, the mortgagors were aware that by contract, if they failed to redeem the property within ten years of the mortgage, the complainant would get an absolute right to title and possession of the land mortgaged. The accused persons must be credited with the knowledge of the facts stated in the mortgage-deed and the consequences of the contract entered into thereunder. In this state of knowledge any act of removal of paddy grown by the complainant on the land cannot be held to be bona fide, because in such a case not only there would be no legal right, but, there would be no appearance or colour of a legal right or even a fair pretence of a legal right. The Magistrate thinks that Section 17 of the Orissa Money Lenders Act endowed the mortgagor with an additional right notwithstanding anything to the contrary in the on tract of mortgage. The right conferred by that section is a right to treat the mortgage as discharged after expiration of 15 years from the date of mortgage and to call upon the mortgagee to deliver up possession together with all documents and if so required, to re-transfer the property to the mortgagor. This section creates the rights and liabilities outside the terms and conditions of the mortgage-deed. This section creates the rights and liabilities outside the terms and conditions of the mortgage-deed. It explicitly states that the mortgagor shall demand and the mortgagee shall perform all the acts enumerated the Section 17 of the Orissa. Money Lenders Act. There must be, in the first instance, a demand to be put in possession and until that demand is made, the liability of the mortgagee to reconvey possession does not arise. That also does not authorise the mortgagor to take law into his own hands and physically wrest possession from the mortgagee. 14. In the present case 15 years expired on 7-6-1954. No demand for possession was made by the mortgagor. The mortgagee continued to be in possession for another eleven years and grew crops in the year of occurrence that is 1965. That apart, under the terms of the mortgage-deed, the mortgage transaction had been converted into an out and out sale on the expiration of the 10th year. Therefore, it is a moot question whether the mortgage as such can be deemed to be in existence at the end of the expiration of 15 years. From the long silence on the part of the mortgagor for a period of about eleven years, it is a reasonable inference that they thought that they lost title to the property and the mortgagee had acquired the same after expiry of ten years from the date of mortgage in pursuance of the mortgage contract. They raised no dispute the recover possession and never even made a demand to the mortgagee that he shall deliver back possession to them. On the top of it, the accused persons completely denied to have gone upon the land and cut away the paddy crops on 5-11-1965, the date of occurrence. This denial itself is not only indicative of a dishonest intention on the part of the accused persons in cutting and removing the paddy but also destroys the theory of any claim to the property having been made and in exercise of such claim the accused out and removed the paddy. Further, the claim, if any, in view of the mortgagor's acquiescence in the continuing possession of the mortgagee and his omission to claim any right for reconveyance of the property, would neither be bona fide, nor reasonable. Again, the accused persons are not the mortgagors. Further, the claim, if any, in view of the mortgagor's acquiescence in the continuing possession of the mortgagee and his omission to claim any right for reconveyance of the property, would neither be bona fide, nor reasonable. Again, the accused persons are not the mortgagors. One of them Brundabati Kalo is the wife of one of the mortgagors and the other Sibsankar Kalo is the son of another mortgagor. The other accused persons had no connection with the mortgage at all nor could they claim any right by virtue of Section 17 of the Orissa Money Lenders Act. They also do not say that they came as labourers of the other two accused Brundabati Kalo or Sibsankar Kalo. There is no evidence if the mortgagors were alive or dead on the date of occurrence. If they were alive, then their wives and sons cannot claim a right which they themselves would have u/s 17. In that view also it is impossible to bold that accused Brundaban Kalo and Sibasankar Kalo had a bona fide claim of right. None of the accused made any pretence to any such right. 15. To sum up : (a) there is absolutely no dispute between the complainant and the accused persons regarding any right to the land; (b) No claim was made, rightly or wrongly, to recover possession under any notion of law emanating from Section 17 of the Orissa Money Lenders Act. (c) All the accused persons have made a complete denial of having cut and carried away paddy on the date of occurrence; and (d) the evidence on record, both oral and documentary, do not indicate or spell out a case wherefrom it could be deduced that the accused persons ever believed that they had a right, be it a pretence or not. In the background of the case that the mortgagors stood by and allowed the complainant-mortgagee to continue in undisturbed possession till 1965, for long eleven years after statutory redemption of the mortgage u/s 17 of the Orissa Money Lenders Act and assuming that it applied and in absence of any claim having ever been made prior to the date of occurrence in 1965, even a claim now made-by mortgagors cannot be said to be bona fide or to be reasonable or to be made in good faith. 16. 16. The accused persons were apparently ignorant of the existence of Section 17 of the aforesaid Act and not being themselves mortgagors, they cannot acquire any right over the mortgaged-property u/s 17 so as to claim retransfer of the me or to be put in possession during the lifetime of the mortgagors. In these circumstances, the application of the doctrine of bonafide claim of right is completely misconceived, and consequently the order of acquittal cannot be upheld. In the result, the order of acquittal is set aside and the accused persons are convicted u/s 379, Indian Penal Code., and are sentenced to pay a fine of Rs. 25/- each, in default to undergo R. I. for two weeks each.