In order to establish wrongful loss or damage under Section 427 of the Indian Penal Code, the complainant must prove that he has some legal right to the property in question and that the loss or damage was caused by unlawful means.

JUDGMENT :

Misra, J. - The Petitioner has been convicted u/s 427, Indian Penal Code and sentenced to pay a fine of Rs. 100/ -, in default, to undergo R.I. for one month. The case of the complainant is that he has paddy land in plot 753 in Khata 150 in mouza Hiragobindapur in the district of Puri. Just adjacent to it to the east the accused has got paddy land- The lands are separated by an intervening ridge 250 cubits in length. The land of the complainant is at a higher level. In Falgun preceding the date of occurrence the complainant had repaired that ridge to relevant flow of water from his land to that of the accused. At about 10 a. m. on 18-8-1963, the accused cut the ridge about 200 cubits in length. On complainant's protest he was threatened with assault.

The plea of the accused was a complete denial of the occurrence. His case is that the complainant wanted to purchase his land and the case has been falsely foisted on account of is refusal.

2. The Courts below concurrently recorded the following findings:

(i) Plot 753 stands at a level higher than the land of the accused to the contiguous east.

(ii) The accused demolished the ridge in the month of August and the water from the complainant's field was drained out into the field of the accused.

(iii) The value of the loss sustained by the complainant is about Rs. 150/

(iv) There is no evidence on record that the complainant was the owner of the disputed ridge either exclusively or jointly with the accused.

(v) The complainant had repaired the ridge in the month of Falgun about 5 months proceeding the date of occurrence.

The conviction is based on the conclusion that even if the ownership of the ridge belongs to the accused, he was not entitled to cut it. The learned advocates for both the parties do not challenge the first four findings. The objection to the fifth finding is not entertainable as it is based on some evidence. Thus the judgment proceeds on the basis that all findings are correct.

3. u/s 427, Indian Penal Code, whoever commits chief and thereby causes loss or damage to the amount of Rs. 50/ - or upwards shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

'chief' is defined in Section 425, Indian Penal Code:

Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'chief'.

Explanation 2 lays down that chief may be committed by an act affecting property belonging to the person who commits the act, or to that person and other jointly.

4. The conviction is based mainly on the basis of the contents of this Explanation. The learned Courts below are of opinion that even if the ridge belongs to the accused, he committed the offence of chief by cutting his own ridge so as to cause loss to the land of the complainant by draining out the water. Mr. Das challenges this view as being contrary to law.

5. The section indicates intent to cause or knowledge of the likelihood that loss or damage would be caused in the alternative. In this case, the accused must be attributed to having the knowledge that it was likely to cause loss or damage to the complainant's land by the cutting of the ridge. In fact, loss or damage had occurred to the property of the complainant by destruction of the ridge. Thus most of the ingredients of the section have been fulfilled.

The only question for consideration is whether the accused had caused wrongful loss or damage to the complainant. The word "wrongful" qualifies both 'loss' or 'damage'. Section 23, Indian Penal Code defines "wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. In order that the loss becomes wrongful, two essential qualifications have been imposed:

(i) the loss