Amal Kumar Chatterjee, J. - (1.)This appeal by Special Leave is directed against an order of acquittal of the respondents who were tried by a learned Judicial Magistrate of Howrah for an offence punishable under section 379, I.P.C. on a complaint filed by the appellant alleging that on the 7th May, 1974 at about 8/9 a.m., respondents caught a large quantity of fish from a certain tank owned and possessed by the appellant and his brothers. The appellant had also stated that his brothers had filed a civil suit against one of the respondents and others for declaration of title and permanent injunction in respect of the tank in question. The suit was lost in the trial court but on appeal the decree was reversed and the matter is now pending in the High Court.
(2.)The defence of the respondents consisted in denial of the occurrence. Alternatively, they claimed to be the owners of the tank and thus it was contended that even if it was found that they had caught fish, it was in bona fide exercise of a right.
(3.)The learned Magistrate on consideration of evidence has found that the occurrence as alleged was proved but recorded an order of acquittal upon a finding that taking of fish did not constitute theft as there was a bona fide claim of right by the respondents.