Ashok Agarwal, J. - An order of acquittal passed on the 10th of September, 1986, by the Additional Chief Metropolitan Magistrate, 2nd Court, Mazagaon, Bombay in Criminal Case No. 1971/P/1984 is impugned in the present appeal. The respondent/original accused was charged under Section 379 of the Indian Penal Code for having, on the 29th of November, 1983, at about 1.15 a.m. at the junction of Sukhalaji Street and Jairajbhai Lane, Nagpada, committed theft in respect of motor taxi No. MRO- 3272. At the trial,

prosecution examined P.W. 1 Shri Adam Sule-man Baradia who is the original complaint He was the driver in respect of the aforesaid taxi. After the taxi was stolen away he went to the Nagpada police station and lodged his First Information Report (Exhibit P). While he was still at the police station, P.W. 2 Shri Shag Faridul Haq brought the taxi at the police station when the accused, who was found driving the taxi, was forced out of it and brought to the police station. The First Information Report (Exhibit P) was recorded by P.W. 3 Shri Abdul Rehman Ali Beg, a P.S.I. attached at the Nagpada Police Station. P.S.I. Beg had also witnessed accused being forced out of the driver's seat of the above taxi by P.W. 2 Shag Faridul Haq.

2. At the trial, P.W. 1 the complainant, turned hostile. He refused to identify the accused in the Court. He was, therefore, declared hostile. P.W. 2 Shri Shag Faridul Haq and P.W. 3 Shri Abdul Rehman Ali Beg have deposed in terms of the prosecution case.

3. The learned Magistrate, by the impugned ORDER and order, has refused to record an order of conviction on the ground that the prosecution case was not supported by the complainant. Since the complainant, who is the main aggrieved party, had not supported the prosecution, he declined to place reliance on the evidence of the other two witnesses namely P.W. 2 Shag Faridul Haq and P.W. 3 Abdul Rehman Ali Beg.

4. I have heard Shri Nalawade, the learned Public Prosecutor, who has submitted that the learned Magistrate has erred in not giving due weight and not placing reliance on the evidence of P.W. 2 Shag Faridul Haq and P.W. 3 Abdul Rehman Ali Beg: He has submitted that the evidence of the aforesaid witnesses is faultless. The same can be relied upon for arriving at a finding that the accused was found driving the taxi soon after the same was stolen away. The accused was, thus, found in possession of stolen property immediately after the theft. Hence, an inference can safely be drawn that the accused is thief. Hence, even if the complainant has failed to support the prosecution, the offence can be held proved on the strength of the evidence of the aforesaid P.W. 2 Shag Faridul Haq and P.W. 3 Abdul Rehman Ali Beg.

5. The accused has been served. He has, however, not caused an appearance to be filed on his behalf. I have, therefore, not had the benefit of arguments being advanced on behalf of the accused.

6. In my ORDER, the learned Magistrate of the trial Court has erred in not giving due weight to the evidence of P.W. 2 Shag Faridul Haq and P.W. 3 Abdul Rehman Ali Beg. The evidence of the aforesaid witnesses proves beyond reasonable doubt that the accused was found driving the taxi in a rash manner. P.W. 2 had to jump aside in order to save himself from being knocked by the taxi. Since he had narrowly escaped he chased the taxi in order to catch the driver. On account of congestion of traffic the taxi had to halt at the junction. At that stage, P.W. 2 Shag Faridul Haq apprehended the accused and forced him to take the taxi to the police station. The" accused was taken to the police station by P.W. 2 Shag Faridul Haq and this was witnessed by P.W. 3 Abdul Rehman Ali Beg. In my view, the above evidence is sufficient to hold that the accused was found in possession of the taxi soon after the theft. Indeed the accused was brought to the police station while the complainant was still there after recording of his First Information Report. Since the accu