The court emphasized the lack of proof of dishonesty in the applicant's actions and deemed the case more suitable for civil courts, leading to the setting aside of the conviction and sentence.

Findlay, J C—The applicant Ziba applies in revision for setting aside the conviction under Section 379, I.P.C. and sentence of a fine imposed on him by the 3rd Class Magistrate, Nagpur. On appeal, the District Magistrate maintained the conviction but reduced the fine to one of Rs. 15.

2. The trial of this case by the 3rd Class Magistrate has been very badly carried through. The record of evidence is careless and untidy in the extreme and is, in places, almost unintelligible. As would appear from the cross-examination of Shivanandan Singh (P. W. 1), highly relevant evidence, which it was desired to lead as to the alleged existence of enmity between the complainant and the present applicant, was quite wrongly disallowed. Most important of all is the consideration that there was not only a doubt but the actual dispute between the parties as to the identity of the bullock alleged to have been seized by the applicant and yet the animal was not produced for identification before the witnesses.

3. It has been admitted before me by the pleader for the non-applicant that the present conviction and sentence could not, in any event, stand and all that has been urged is that a re-trial of the case should be ordered. The real question I have, therefore, to decide is whether the applicant is entitled to an immediate acquittal, or whether a re-trial of the case should be ordered.

4. For my own part, even if we assume that the identity of the bullock said to have been seized from the complainant (P. W. l), Shivanandan Singh, and that in the possession of the applicant is one and the same, I do not think that this is a case which the criminal Court should have to waste more time in trying. It is perfectly clear that, if the applicant did seize the bullock, or did order his servant to seize it, this was done in the assertion of a bona fide claim of right The seizure may have been illegal, but I do not think there has been any proof of the element of dishonesty : cf Arfan Ali v. Emperor,1917 44 ILR(Cal) 66. Even, if we assume the complainant's story to be true the fact that one of the two bullocks only was seized, under the circumstances, goes strongly to suggest that the applicant considered he had a bona fide claim thereto. That the applicant's action was illegal and that he was probably civilly responsible therefor, is perfectly clear, but it is equally clear that the element of dishonesty has not been established. The evidence for the applicant strikes me as interested and discrepant, and that for the complainant is perhaps not much better as either party has taken up an extreme position, but it is perfectly obvious that, at the worst for the applicant, he seized the bullock under the assertion of some bona fide claim of right thereto.

5. As I have said, the case has been tried so perfunctorily that, in any event, a re-trial would have been necessary. Evidence was improperly excluded. The evidence recorded is ambiguous in places; the Magistrate, although the identity of the bullock was in doubt, did not have it produced for identification by the various witnesses, and, in any event, thus the whole trial was bad. In my opinion, however, the case is obviously one for the civil Courts and it would be a waste of time to allow the parties to fight it out de novo in the criminal Court. The conviction and sentence passed on the applicant are set aside and the fine, if paid, will be refunded. I make no order as regards the custody of the bullock supposed to have been restored. The parties must fight out this matter in the civil Courts.