JUDGMENT G.D. Kamat, J. - In Criminal Case No. 239/75 petitioner was prosecuted for the offences under sections 379, 427, and 447 of I.P.C. by institution of a private complaint before Judicial Magistrate F.C., Vasco-da-Gama. The original complainant Nilkant Sinai Kontok is dead and his son Sonat Kumar Kontok now respondent No.1 in this revision application prosecuted that complaint. 3. The trial Court found favour with the complainant only insofar as offence under section 379 I.P.C. is concerned and fined the petitioner in a sum of Rs. 250/- and in default to undergo S.I. for 30 days with a further direction that the fine if realised, an amount of Rs. 75/- be paid to the complainant by way of compensation. 3. The conviction was recorded by the order dated May 3, 1985 against which the petitioner preferred an appeal being Criminal Appeal No. 20/RS decided on 8th November, 1985 by Addl. Sessions Judge. This appeal again did not find favour, the result being the conviction of the petitioner under section 379 I.P.C. is confirmed and that is how the petitioner now challenges the same before me in this revision application. 4. Facts are few on which the prosecution was initiated. The property known as 'Januario Pereira' alias 'Sassona (fourth radical)" situated at Utorda belonged to the family of the original complainant; a property south of Sassona which belonged to one Conceicao Antonetto Dourado is now in possession of the petitioner/accused; that the disputed property along. with some parts of two other divisions is bearing recent Survey No. 179/2 and is separated by a fencing wall; that there are two coconut trees adjacent to this wall which were all of a sudden for the first time on 31st August, 1975 at about 8 a.m. plucked by accused and dishonestly removed 75 coconuts and hence the complaint. 5. On behalf of the petitioner/accused it is now contended that there was no dishonesty in the act of the petitioner so as to attract the offence under section 379 and having regard to the factual background and the litigation between the parties the conviction is not sustainable because the petitioner asserted his right bonafidely believing that he was entitled to the two coconut trees. The whole thrust it is urged to constitute an offence of theft is the dishonest intention to take away property belonging to another and mere taking away of any property is no theft if it is pursuant to a bonafide claim of right. 6. Reliance is placed on the authority of Chandi Kumar Das Karmarkar and another v. Abanidhar Roy.1 This was a case of taking fish film a tank. Without going into the details of the case the Supreme Court held that on the facts disclosed there was absence of animus furandi and the circumstances bring the case within the rule that the taking of the immovable property is in the assertion of a bona fide claim of right and though it may amount to a civil injury does not fall in the offence of theft. 7. Mr. Robello, learned counsel appearing for the petitioner contends before me that admittedly the property to the south of the disputed property is in possession of the petitioner. Therefore the parties are owners of adjacent properties. It is equally common ground according to him that there is a fencing wall (ado). He now says that from the evidence it is equally clear that the two coconut trees alleged to have been plucked by the petitioner on 31st August, 1975 are close to this wall (ado). This according to him is a good circumstance which favours accused. Next there is a Civil Suit pending between the parties for demarcation of the boundary which clearly shows according to him that there is a dispute in relation to the boundary which is liable to be adjudicated upon by the Civil Court. Coming to the oral evidence adduced by the prosecution he mentions that the witnesses are aware that a dispute is going on before the survey authorities and further that the two coconut trees allegedly plucked are not identified properly and when they are held to be on other side of the fence they belong to the petitioner. He equally mentions that the effect of the entire evidence is that there may be in all 3 coconut trees which are yielding fruits and once discrepancy is found in the location of the two trees it is not safe to convict the petitioner so long as the rights are yet to be determined on adjudication of the boundary in the litigation. 8. Mr. 8. Mr. Dias, counsel for the respondent No. l/complainant joins issue with Shri Robello on various grounds. The first of the contention is that the defence of the assertion of a bonafide right or claim to the property or for that matter to these two coconut trees cannot be made available to the petitioner. Mr. Dias says that there is no foundation laid by the petitioner either at the time of the cross-examination of' the prosecution witnesses or by adducing defence. Relying upon section 79 of I.P.C. according to him nothing can constitute as an offence if it is done by a reason of mistake of fact or by a person in) good faith believing himself to be justified by law in doing so. But it is clearly incumbent upon a person to plead such a case. He therefore says that there is nothing of the kind and on the contrary even in his section 313 Cr. P.C. statement the petitioner has not chosen to say that he has plucked the coconut trees in the assertion of his bonafide right. 9. The factual position of this matter is unique. Against an earlier order of conviction, this matter has reached this Court in. a revision. The Criminal Revision Application No. 6/83 was disposed of on January 25, 1985 by remanding the Criminal Case to the Judicial Magistrate to record the statement of the petitioner/accused under section 313 in accordance- with that provision. Despite evidence of five prosecution witnesses was adduced only one question was set up under section 3.J3 Cr. P.C. soliciting from him his explanation. In view of the stand taken by the petitioner it was then thought advisable that the petitioner be given a fair change and opportunity to explain circumstances appearing against him. But however after remand though the circumstances are put to the petitioner in several separate questions, the petitioner maintained that he never plucked the two trees. Even if the petitioner was to maintain that he has plucked these two trees by the assertion of his bonafide title perhaps the contention of the learned counsel could have been appreciated. 10. Mr. But however after remand though the circumstances are put to the petitioner in several separate questions, the petitioner maintained that he never plucked the two trees. Even if the petitioner was to maintain that he has plucked these two trees by the assertion of his bonafide title perhaps the contention of the learned counsel could have been appreciated. 10. Mr. Dias is again right that apart from the oral evidence the documentary evidence produced suggests that the litigation before the survey authorities is in relation to property bearing survey No. 179/10 and not to survey No. 179/2 from which the two coconut trees are proved to have been plucked. 11. Mr. Robello attempted to show on reading the evidence of P.W.2 Albert, P.W. 3 Antenetto Fernandes and P.W. 4 Joae Pereira, the plucker, that the petitioner is in possession of the adjacent property in which he has his house. But it is equally true that the prosecution evidence is unanimous in maintaining that the two coconut trees near the fence had been plucked, and what is more is that that was done by the petitioner for the first time. Otherwise for all the 20 years prior thereto it is the family of the complainant who used to do the plucking. P.W. 4 Joae Pereira got confused and referred to these two coconut trees as being outside the fence. An attempt is sought to be made to show that the two coconut trees outside the fence would naturally mean that they belong to the petitioner and falling in his side of the property. I have gone through the statements of witnesses to assure myself about the matter as conviction is a conviction and there is nothing called big conviction and small conviction. But it is not possible to accept that there is confusion about the trees made by P.W. 4 Joae. It must be held that in fact all the three witnesses unanimously refer to two coconut trees and when Joae Pereira P.W. 4 has said that they are outside the fence, he spoke about them being outside the property of the petitioner. 12. Coming back td the major point that there was no. It must be held that in fact all the three witnesses unanimously refer to two coconut trees and when Joae Pereira P.W. 4 has said that they are outside the fence, he spoke about them being outside the property of the petitioner. 12. Coming back td the major point that there was no. dishonest removal to attract section 379 of I.P.C. or that the act cannot be a criminal offence, it may have to be seen that it is open to an accused to take a number of defence please in a criminal action however inconsistent given going by she assumption that no particular defence is necessary to be taken at the stage of trial and a defence plea based on the admissions of the prosecution is available to the accused in my view this principle will not help the petitioner in the present case. The petitioner did not even put to the complainant in the cross-examination that these two trees are his or that he has been plucking of that he plucked them in exercise of his right or that they do not belong to complainant. It is no doubt true as contended by Shri Rebello and for that matter well settled that a bonafide claim of right is a good defence against a charge for theft and an act does not amount to theft unless there be not only no legal right but no appearance or colour of legal right. But the expression "colour of a legal right" is; meant not a false pretense but a fair pretense, not a complete absence of the claim but bonafide claim however weak. Therefore when the removal is in the assertion of a bonafide claim of right however ill founded that claim may be, the removal thereof does not constitute a theft. For that matter a claim of right in good faith if reasonable saves the act from being a theft but it is always a question of fact. The two Courts below have clearly recorded that there is nothing bonafide on the part of the petitioner and he plucked the two coconut trees which were in possession of the complainant's family for the first time on 31st August, 1975. The two Courts below have clearly recorded that there is nothing bonafide on the part of the petitioner and he plucked the two coconut trees which were in possession of the complainant's family for the first time on 31st August, 1975. It is not possible for me to come to a different finding nor in my opinion such a case has been made out that the action of the petitioner can be said to be by assertion of a bona fide right even a weak one. 13. In any event the petitioner has been merely sentenced to pay a fine which sentence is reasonable. I propose not to interfere. Revision application therefore is dismissed. Rule discharged. There shall be however no order as to costs. 1. AIR 1965 SC 685.