THEFT.

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON THEFT.

Duncan Abeynayaka – LLB, Attorney At Law.

 

PENAL CODE PROVISIONS

366. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit "theft".

Explanation 1.—A thing so long as it is attached to the earth not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2.—A moving effected by the same act which effects the severance may be a theft.

Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving, or by separating it from any other thing, as well as by actually moving it.

Explanation 4.—A person who by any means causes an animal to move is said to move that animal, and to move everything which in consequence of the motion so caused, is moved by that animal.

Explanation 5.—The consent mentioned in the definition may be expressed or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.

 

367. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

 

21.       (1) "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.

(2) "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.

(3) A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully.

(4) A person is said to loss, wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.

22. Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do that thing "dishonestly".

 

01. RAMALINGAM VS NAIR 45 NLR 515

According to that definition there are five elements which are necessary and sufficient to constitute the offence of theft. They are—

(1) Dishonest intention to take property;

(2) The property being movable property;

(3) The taking out of the possession of another person;

(4) The taking being without the consent of the person in possession;

(5) The removal of the property in order to accomplish the taking of it.

It follows from sections 21 and 22 that a person acts dishonestly, if he takes property by unlawful means with the intention of retaining it or with the intention of keeping the person entitled to it out of its possession. It is not necessary that such person should have an intention of acquiring the property or of depriving the other person of it.

 

02. GUNASEKERA v. SOLOMON 25 NLR 474

Quote, Nabi Babsh v. Queen Empress. J. L. X. Col. XXV., 416,

" To constitute theft there must be an intention to take the thing in question dishonestly, that is, with intent to cause wrongful gain or wrongful loss, and can it be said that removing a box ' to put the owner to trouble ' is necessarily and in every case causing ' wrongful loss ?' The answer must, we think, be in the negative. No doubt the language of section 23 of the Indian Penal Code which defines wrongful loss, and says a ' person is said to lose wrongfully when such person is wrongfully kept out of any property as well as when such person is wrongfully deprived of property,' might at first sight seem to create a difficulty in the way of accepting the view we take. But the difficulty is only apparent and not real. Of course, when the owner is kept out of possession with the object of depriving him of the benefit arising from the possession even temporarily, the case will come within the definition. But where the owner is kept out of possession temporarily not with any such intention, but only with the object of causing him trouble in the sense of moral anxiety, and with the ultimate intention of restoring the thing to him without exacting or expecting any recompense, it is difficult to say that the detention amounts to causing wrongful- loss in any sense."

 

03. PONNU v. SINNATAMBI et al 24 NLR 248

It is an essential element of the offence that the taking should be done dishonestly (section 366), " Dishonestly, " is defined as doing an act with the intention of causing wrongful loss to one person and wrongful gain to another. It cannot be said that the act of the accused in removing the- animals was to cause wrongful loss to the complainant, because, from the facts put before the Magistrate, the inference is obvious that the removal was due to a mistaken idea of their right to enforce payment.

 

04. ANDRIS v. DON CHARLES 17 NLR 95

Under section. 79 of the Penal Code intoxication does not negative knowledge when that is an element of an offence; but as to intention, our law is the same as the English law on the subject, that is to say, “when a crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that the man was drunk in considering whether he had the intention necessary to constitute the crime " (1 Gout. 346). Considering the condition of the accused at the time of the alleged offence, it is, to say the least, very doubtful that he intended to commit theft.

He does not appear to have subsequently misappropriated the property. The string of beads was eventually found on the window of the complainant's own house. If he misappropriated the property, he might have been charged with criminal misappropriation of property.