JUDGMENT
Jwala Prasad, J.
1. This is a Reference by the Sessions Judge of Purnea recommending that the conviction of, and the sentence passed on, the petitioners under Section 379, Indian Penal Code, be set aside.
2. The petitioners are the agents of the Ferry Ghat at Barsi on behalf of the lessee of the Ghat and their duty is to collect tolls from persons arising at the Ghat. The case of the prosecution was that the complainant with 5 others crossed the ferry and paid 4 annas as toll instead of annas 6 at the rate of one anna per head. The accused demanded annas two more, whish the complainant refused. Thereupon the accused removed a thali from the bundle of the complainant saying “pay the toll and take bask the thali.” The Magistrate held that the petitioners took out the thali forcibly ‘in order to compel the complainant to pay two annas more due to them as toll. The learned Sessions Judge says that the Magistrate is wrong in this finding inasmuch as the evidence of prosecution witnesses Nos. 3 and 4 showed that the thali in question was made over to the petitioners by the complainant of his own accord as security for payment of the toll in question. If the finding of the learned Sessions Judge be accepted, then clearly there is no case of theft and there is no reason why this finding should not be accepted, based as it is upon the evidence of witnesses on behalf of the prosecution.
3. The learned Sessions Judge has, however, recommended the setting aside of the conviction upon another ground also. He says that, assuming for the sake of argument that the finding of the Magistrate was correct that the thali in question was removed by the petitioners forcibly in order to enforce payment of the toll due to them, there was no dishonest motive on their part and consequently they could not be convicted of theft. Section 24, Indian Penal Code, says:
Whoever does anything with the intention of causing wrongful gain to any person, or wrongful loss to another person, is said to do that thing ‘dishonestly.’
4. It is essantial for theft, as defined in Section 378, Indian Penal Code, that the removal of the property in question must have been done with the intention to take that property dishonestly. In other words, there must be an intent to cause wrongful gain to one person or wrongful loss to another person. The petitioners were the servants on behalf of the lessee of the Ghat and it was their duty to collect tolls from the passengers and not to allow them to cross the ferry without such payment. The complainant had no right to cross the ferry without payment of the toll fixed, and the petitioners had to protest themselves from the charge of negligence or connivance in allowing the complainant and his party to cross the ferry without payment of the legal dues to the master of the petitioners. There might have been some zeal on their part, assuming that the finding of the Magistrate is correct that they forcibly removed the thali, in enforcing their dues, but they did so with a view to realise the legal dues, and not with a view to make any wrongful gain out of it or to cause any wrongful loss to the complainant. This was the view taken in a case on all fours with the present case: Matabbar Sheikh v. Emperor 7 Ind. Cas. 257 : 14 C.W.N. 936 : 11 Cr.L.J. 444. The conviction of the petitioners is, therefore, illegal.
5. The recommendation of the learned Sessions Judge is accepted and the conviction of, and the sentence passed on the petitioners are set aside.