This is a criminal revision case filed against the conviction and sentence of the learned Sub-Divisional First Class Magistrate of Peddapur in C.A. No. 53 of 1951 confirming the conviction and sentence of the Additional Stationary Sub-Magistrate, Rajahmundry, in C.C. No. 343 of 1950.

The facts are: The complainant has purchased Musurumilli Bamboo Coupe No. 1 for the year 1949-50, i.e., for the year ending 30th June, 1950 for Rs. 5,000 in auction held by the Forest Department and was working the Coupe through the men engaged by him. He was getting the stock of bamboos from the Coupe to Gokavaram and stocking them in the site of one Dasari Bulliah. This site was held under a lease of the accused from whom the complainant has taken it on an annual rent of Rs. 35 for the purpose of securing the bamboos therein. The complainant noticed that the stock in the depot was being diminished, having been misappropriated by the accused and so he asked his agent at Gokavaram to stock the bamboos in another site and accordingly on 5th December, 1949, at 9 A.M., when 12 bandies of bamboos arrived from the Coupe and they were being directed towards the new site the accused interfered and threatened the cartmen and the agent and got the stock forcibly unloaded in the old yard and misappropriated them. Out of the 12 bandies, four bandies consisted of 748 plain bamboos and the remaining 8 bandies contained 2,681 sugarcane bamboos and they were worth about Rs. 400.

The complainant is said to have reported this matter to the Forest Range Officer who in his turn reported the matter to the Station House Officer, Gokavaram. The Police did not investigate the offence. Hence the private complaint by the complainant.

The case for the accused was that himself and the complainant were doing business conjointly, that though the contract stood in the name of the complainant he (accused) had a share therein by private understanding and that he did not commit the offence of theft.

The accused examined three witnesses who gave the following information D.W.1 Majeti Ramarao, a resident of Ramannapalam testified that he worked in’ the concern as a clerk for writing accounts for five months and that the accused and P.W.1 have got equal shares in the business, that the accused used to receive the stock from the Coupe at the depot in Gokavaram and conduct sales while P.W.1 acted as cash keeper. D.W.2 Garugu Parvathisam, a resident of Gokavaram, deposed that he was present at the time of auction of the Coupe when P.W.1 and the accused came to an understanding to have half share each in the Coupe and that they were running the business on that footing. D.W. 3 Dasari Satyanarayana of Gokavaram swore that the Coupe was purchased in the name of P.W.1 and that the site on which the material received from the Coupe was being deposited belonged to him and that accused told him that he had a share in the business and that it appeared to him that the accused and P.W.1 were jointly conducting the business.

The learned Sub-Magistrate came to the conclusion that it was established by P.W.1 that he was the contractor of the Coupe and that the accused only claimed a share in the business by private understanding with P.W.1 and that even conceding for a moment that the accused had a share in the business privately he cannot on that ground claim publicly a title over the produce in the Coupe when no written agreement between them to that effect was got executed. Therefore, he convicted the accused for an offence under section 379, Indian Penal Code, in regard to the acts which were not disputed and sentenced him to pay a fine of Rs. 100.

The learned Sub-Divisional Magistrate, on appeal, confirmed the conviction and sentence on the foot of the following reasoning:

“In appeal before this Court the learned defence counsel argued that the accused and the complainant are partners in the bamboo business and that the evidence on record does not disclose the offence under section 379, Indian