1. The petitioners have been found guilty by the Magistrate of an offence under Section 341 of the Indian Penal Code The complainant was examined by the Magistrate at the time of the issue of the summons, and before the issue of the summons. 'In his evidence endorsed on the back of the petition taken by the Magistrate, he states that he was not himself present when the occurrence, of which he chiefly complains, took place. Before the Magistrate he appears to have stated that he was present. What he complained of was this, that when on the 5th August, he or those in his employ were removing some thing's to the new hat at Champdani from the hat belonging to the persons in whose employ the 'accused are, the accused said the things must not be removed, and on his not listening to that, they turned the cart upside down, and the things fell down to the ground, where they remained some days afterwards. This story of the complainant was not controverted, and upon this state of things the Magistrate found the accused guilty under Section 341 of the Indian Penal Code.
2. We do not think that under the circumstances the conviction under that section can be sustained. The charge was one of wrongful restraint, and whether the evidence of the complainant, as given when the summons was issued, or before the summons was issued, is to be taken, or that given at the hearing before the Magistrate, it appears to us inconsistent with the idea of wrongful restraint. In one case he was not present, and in the other he went away to the new hat after the things were thrown down from the cart. But we think that the case does come under Section 425 of the Indian Penal Code, that there was such a change in the situation of the property done by the persons who brought it about with intent to cause, or knowing they were likely to cause, wrongful loss or damage to any person, that is the complainant, as diminished its value or utility or affected it injuriously. We think those words are sufficiently satisfied by the circumstances of this case. There was an unlawful removal of goods from the cart, and an unlawful change in their situation, with the knowledge that that change must amount to an inconvenience, more or less serious, to the owner of the goods, and must, to some extent, diminish the utility of the goods which it was desired to remove from one place to another by the fact of their being cast out of the conveyance in which they were to be removed. To that extent the utility of those goods was diminished, and to that extent they were injuriously affected. We think it is not necessary that the damage required by this section should be of a destructive character. All that is necessary is, that there should be an invasion of right and diminution of the value of one's property caused by that invasion of right, which must have been contemplated by the doer of it when he did it.
3. As to punishment we do not think that, under the circumstances the punishment was excessive. The offence is one which, though not of very great gravity, is not without a certain amount of seriousness. We think that the reasons stated by the Magistrate in his judgment were quite sufficient to show that such a sentence was, under the circumstances, desirable. We, therefore, set aside the conviction under Section 341, and for it substitute a conviction under Section 426, and we direct that the prisoners be imprisoned for the remainder of the sentence not yet suffered by them.
4. The remainder of the judgment was not material to this report.