CRIMINAL MISAPPROPRIATION OF PROPERTY.

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON CRIMINAL MISAPPROPRIATION OF PROPERTY

Duncan Abeynayaka – LLB, Attorney At Law.

 

PENAL CODE PROVISIONS

386. Whoever dishonestly misappropriates or converts to his own use any movable property shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

387. Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servent, the imprisonment may extend to seven years.

CODE OF CRIMINAL PROCEDURE ACT

165 (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of movable property, it shall be sufficient to specify the gross sum or, as the case may be, the gross quantity in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 174:

Provided that the time included between the first and last of such dates shall not exceed one year.

v  To establish the offence of misappropriation following ingredients have to be satisfied:

(i) The accused misappropriates property and converted the property to his own use.

(ii) He does so dishonestly.

(iii) The property is movable; and

(iv) The movable property belonged to the complainant.

v  To invoke Section 387 of the penal code following ingredients should be met.

(i)  The property must be a movable property.

(ii)  Such property was in possession of the deceased at the time of his death.

(iii) The defendant misappropriated it or converted it to his own use.

(iv) The accused did so dishonestly.

 

01. GRATIAEN PERERA VS THE QUEEN 61 NLR 522

To constitute misappropriation the authorities seem to suggest that there must be an initial honest possession followed by a dishonest conversion.

 

02. ATTORNEY-GENERAL VS B. MENTHIS 61 NLR 561

In order to constitute criminal misappropriation of property it is not necessary that there should be an initial innocent taking followed by a subsequent dishonest change of intention. If the initial taking of the property not in the possession of any person is itself dishonest, then too the offence is made out.

The Penal Code departed in this respect from the English law and made it an offence to misappropriate property even if the original possession was honest. Explanation 2, it seems to me, was merely intended to emphasize the difference between the law in England and under the Code but it does not postulate that in order to constitute criminal misappropriation the initial taking must always be honest. Indeed it suggests that an initial dishonest taking also amounts to criminal misappropriation for it states that a person who finds property and takes it “for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly", thereby suggesting that if the finder does not take it for such a purpose he will be guilty of the offence. The main provisions of Section 386 make dishonest misappropriation at any stage an offence; explanation 2 only provides for a special case where the initial taking is honest and is intended to protect the finder of property not in the possession of anyone so long, and only so long, as his continued possession of that property is honest. If, of course, the property taken was in the possession of some person the resulting offence would be theft.

 

03. WIKRAMA HENNAYAKA VS HON. ATTORNEY GENERAL CA 148/1997

In a case of Criminal Misappropriation actus reuse comprise three facets namely,

a. There should be misappropriation or conversion of the property by the accused.

b. The properly must be movable property.

c. The property should belong to a person other there the accused.

The requisite mens rea of this offence derives from the element of dishonesty and it was considered as an initial innocent taking of the property followed by a guilty state of mind at a later stage

In order to constitute misappropriation under our law it is not necessary that there should be an innocent initial taking. If the initial taking of the property not in the possession of anyone is dishonest then too the offence is made out. In regard to this, I agree with the view expressed by Justice Moseley in Salgado V. Mudali Pulle.

 

04. WALGAMAGE v. THE ATTORNEY-GENERAL 2000 3 Sri LR. 1

Ex facie section 386 of the Penal Code does not impose a requirement that the initial taking must be innocent, but only that a dishonest intention must exist at the time of misappropriation or conversion. Insistence upon an initial innocent taking amounts to adding a further ingredient, which is not a permissible principle of interpretation.

 

05. ATTORNEY GENERAL v. DEWAPRIYA WALGAMAGE AND ANOTHER [1990] 2 Sri L.R. 212

There are two basic ingredients to the offence of criminal misappropriation under S. 386 of the Penal Code

i. A mental element of dishonesty, and

ii. An act of misappropriation or conversion of movable property to his own use by the accused.

There are no words in Section 386 which require that the mens rea of dishonesty should be preceded by an innocent state of mind. Dishonest intention is the element of mens rea of the offence of criminal misappropriation as defined in Section 3 8 6 of the Penal Code.

Although there are some illustrations to the section which reveal that dishonesty may be preceded by an innocent or neutral state of mind, is not a prerequisite of the offence, further more dishonesty is the element of mens rea in relation to all other offences of theft; cheating and criminal misappropriation.

A person could be found guilty of the offence of criminal misappropriation even if there is evidence to the effect that he had a dishonest intention at the time he initially took the property being the subject of the offence.

Where the accused is charged with only criminal misappropriation or criminal breach of trust it has to be considered whether on the evidence the offences of cheating or theft are committed at the time of the initial taking of the property. If it could be said beyond reasonable doubt that such an offence is committed at the time of the initial taking of the property the accused could not be found guilty of the offence of criminal misappropriation or criminal breach of trust. The question to be then decided is whether the conviction could be appropriately entered in terms of Section 177 read with Section 176 of the Code of Criminal Procedure Act, No. 15 of .1979.

(d) If the initial taking could be only an irregularity of procedure or would not constitute theft or cheating, the accused could be found guilty of criminal misappropriation or criminal breach of trust. The correct test is to ascertain whether the accused is guilty of another offence such as cheating or theft at the time of the initial taking.

 

06. RAMASWAMI NADAR VS THE STATE OF MADRAS (1957).

For constituting an offence of criminal misappropriation the essence behind this section is when a person converts any property for his own use. A word ‘converts to his own use’ connotes the usage or deals with the property in derogation of the right of the owner.