1. In our view, some of the cases have gone too far in holding that an act which may be bona fide, and which may be done under a mistaken claim of right or which may be due to a bona fide act of negligence, yet may also be shown to have been done with a criminal motive, or intention is, therefore, a criminal act, and as a consequence exempt under Article 35(ii) of the Schedule of the Small Cause Courts Act. We are not prepared to hold that merely because the facts stated are ambiguous and are, therefore, consistent with bona fides although they are also consistent with mala fides according to the correct inference to be drawn, the act is therefore, one necessarily of the kind referred to in this clause of the Schedule, We think that something more ought to be shown, namely that the plaintiff either by his specific allegations, in the plaint, or in some other form in the course of hearing, or by the nature of the evidence which he tendered at the hearing, distinctly alleged that the offence complained of was punishable under Ch. 17 of the Code.
2. There seem to be two strong reasons why this view should be insisted upon, and why the Courts should not go put of their way to apply this clause of the Schedule and to treat an act as criminal which the person who complains about it has not himself treated as criminal, The first reason is that the introduction of this clause into the schedule was admittedly for the benefit of defendants who otherwise might be held guilty of criminal acts without the possibility of appealing and without a full record of the evidence. Secondly, we think that to do so does violence to the provisions of Ch. 4 of the Penal Code. The clause distinctly says that the act must be one which would be an offence. In our opinion, that is a clear indication that the Legislature intended to exclude from the operation of this clause bona fide acts, such as would be exempted from criminal responsibility under the Penal Code. As everybody knows, there are acts which are ambiguous, and which depend for their actual criminal responsibility upon the proper inference to be drawn as to the intention of the person. The clause in question recognizes that ambiguity, and to our mind applies only to those acts which by the circumstances of the case are clearly alleged or clearly shown to be punishable by the Penal Code. We are not prepared to say that merely removing fruit, or cutting trees under a bona fide claim of right, or as the result of the dispute, is necessarily a criminal offence. The same reasoning would apply to the wilful, but not criminal refusal to return a specific article lent, such as a book, or some other piece of moveable property belonging to the plaintiff.
3. We have already decided to day, agreeing with Mr. Justice Daniels and dismissing an appeal from him, that where the plaint discloses no allegation of a crime, this article did not apply. We think this is the correct view. We propose to maintain it in this case, end as these cases appear to be of somewhat frequent occurrence, we have thought it necessary to give our reasons at some length.