J.W.F. Beaumont, C.J.
1. This is a revision application against the order of the Chief Presidency Magistrate of Bombay convicting the three accused who are a sister and two brothers of stealing a barge named Gharapuri. Now it appears that an agreement for the sale of the barge was entered into between accused No. 1 Sitabai and the complainant Dharsey Mulji on July 29, 1929 (Exhibit A). The agreement provided that the barge should be sold for Rs. 1,05 L of which Rs. 300 were to be paid as earnest money, i.e., as deposit, that the vendor should give delivery of the barge to the purchaser at Sewree Bunder, that the vendor should paint, repair or cause to be repaired any defects in the said vessel and should give delivery in a perfectly sound and seaworthy condition on the same being certified to be so by a competent and certified surveyor, that the costs of painting, surveying and harbour charges after the barge came to Sewree Bunder should be borne by the purchaser, that until the surveyor certified the barge to be in a sound and seaworthy condition the barge should not be considered to have passed to the purchaser and the purchaser should be at liberty to rescind this contract of sale and the purchaser should have a lien on the barge for all his costs incurred and including the earnest money paid, and that the vendor should complete the contract within three weeks from the execution of that agreement, time being of the essence of the contract. The barge was subsequently brought to Sewree Bunder, and in August 1929 the purchaser, at the request of the vendor, paid another Rs. 100 for the purpose of enabling the barge to be so brought. It is extremely probable that the rights of the parties under that agreement will be litigated in a civil Court, and I do not, therefore, desire to express any definite opinion as to what the true effect of the agreement is. But in a letter dated October 11, 192?), to the complainant, the vendor's pleader set out what the contentions of the vendor were. After referring to the agreement he says:-
My client has thereafter on September 20, 1929, brought the barge to Sewree and has done overything that she has had to do in order to perform her part of the contract. In spite of many demands and promises on your part, you have as yet failed to pay her the remaining balance of the purchase money, viz., Rs. 651. I have to remind you the if you fail to do so, the contract will stand cancelled by your breach of the same and the earnest and part-payment made by you will be forfeited. I hereby call upon you to pay the aforesaid balance of Rs. 651 within twenty-four hours from the receipt hereof by you in default please note that the contract will stand cancelled...and my client will also sue you for damages for breach of your contract.
From this it will be seen that the vendor's pleader was taking up the position that the purchaser was in default and he called upon the purchaser to complete the contract within a limited time- rather a short time 1 am bound to say-and in default threatened to forfeit the deposit and part payment and to file a suit for damages. Whether that position is legally right or not under the agreement, I do not propose to consider, but I think that it is a position which a pleader was quite honestly entitled to advise his client to adopt, I see no reason why the vendor should not honestly consider that those were her rights.
2. The learned Magistrate in the Court below has held as a fact that delivery of the barge was given to the purchaser soon after it reached Sewree Bunder. I am not altogether satisfied that that finding is correct. I find it very difficult to suppose that the vendor can have intended to give legal delivery of the barge without getting payment of the balance of the purchase money. It is quite possible that there may not have been any delivery in law, and it is even more possible that the vendor may have believed that there had been no delivery in law, and if the vendor believed that and that the possession of the barge was still in her in law, then, I think, she cannot be convicted of theft because she has not been shown to have had any dishonest intention in seizing possession of the barge. In my view this is really a matter which ought to have been litigated in a civil Court, and I think that the criminal law was invoked too hastily. That being so, the conviction must be quashed.
3. Conviction set aside. Fine paid to be refunded. We direct delivery of the barge to the accused-vendor, but we suspend the operation of this part of our order for a month on the undertaking of the purchaser's pleader to file a civil suit, and our order for delivery is to be without prejudice to any order as to the custody of the barge which may be made in the civil suit.