348ABRAHAMS C.J.—Haniffa v. Salim.
Present: Abrahams C.J.
HANIFFA v. SALIM.711—P. C. Galle, 15,513.
Cheating—Jewellery entrusted to accused to be pawned—Redemption of jewelleryby accused by false declaration—Nature of the offence—Penal Code, s. 398.
The accused was entrusted with some jewellery by H to be pawned.He pawned the jewellery and delivered the pawn ticket to H. afterendorsing it. The accused thereafter represented to the pawn brokerthat he had lost the pawn ticket, made the requisite statutory declarationunder the Pawn Brokers’ Ordinance, and redeemed the jewellery.
Held, that the accused had committed the offence of cheating undersection 398 of the Penal Code.
Theft' is the taking dishonestly of movable property out of the posses-sion of any person without that person’s consent and the fact that thatconsent is obtained by means of a deception does not render it any theless -a consent within the meaning of that definition.
Eliyatamby v. Kadiravel (37 N. L. R. 16) and Silva v. Kangany(10 C. L. R. 32) not followed.
PPEAL from a conviction by the Police Magistrate of Galle.A. Rajapakse, for accused, appellant.
Colvin R, de Silva (with him Barr Kumarakulasinghe), for complainant,respondent.
January 4, 1938. Abrahams C.J.—
The appellant in this case was charged with committing theft of anecklace worth Rs. 450 belonging to one C. L. M.. Haniffa. These werethe facts of the ease for the prosecution. The appellant was entrustedby one Haniffa, who is his uncle, with a gold necklace to pawn. Theticket was handed to Haniffa by the appellant who endorsed it in pencil.Subsequently Haniffa wanted to redeem the article and on going to thepawnbroker he discovered that he had been forestalled by the appellantwho had made a statutory declaration to the effect that he had lost thepawn ticket, and had, on the faith of that affidavit, been permitted bythe pawnbroker to redeem the article which he then repawned with thesame pawnbroker and subsequently redeemed.
The defence of the appellant was immaterial, since on the facts, asfound, he does not press his appeal, and the grounds of appeal as set out inhis petition were entirely restricted to criticisms of the evidence and theMagistrate’s inferences. He argues now, however, that his conviction,for theft was wrong inasmuch as the pawnbroker voluntarily parted withthe property. On the question of the exact offence which the Magistratefound the appellant had committed the exact words of his judgment maybe quoted :—
“On the evidence in the case I have no doubt that the accusedredeemed the article by swearing a false affidavit. Now the questionto be decided is whether his act amounted to theft. It is argued for
ABRAHAMS C.J.—Haniffa v. Salim.
the defence that the accused has not committed that offence inasmuch,as the necklace was not taken from the complainant’s possession. Itis true that the necklace was not taken from the complainant’s posses-sion, but it was taken from the possession of the Chettiyar by a trick.By doing so the accused has committed what in English law would amountto larceny by a trick.
“ In this case the accused could not get the necklace without thecomplainant’s consent and without producing the pawn ticket whichwas with the complainant, and it would be theft if the accused dis-honestly possessed himself of it with the intention of appropriating it”.
“ Now the Magistrate’s view of what the offence would be in English lawis, I conceive, quite correct, but it is not always safe to go to English lawfor an interpretation of the Ceylon Penal Code. Theft under the Codeis the taking dishonestly of movable property out of the possession of anyperson without that person’s consent, and the fact that that consent is-obtained by means of a deception of this nature does not render it anythe less a consent 'within the meaning of that definition. The question,however, arises as to whether the appellant could have been properlyconvicted of any other offence on the facts, and it appears to me that theoffence that he committed was cheating by deceiving a pawnbroker bymeans of this false affidavit representing that he had lost the ticket, andso dishonestly inducing him to deliver the pawned necklace to him. Itwas argued by Counsel for the appellant that in view of the fact that thepawnbroker was indemnified under section 19 (2) of the Pawnbrokers’Ordinance he had suffered no damage, and therefore a conviction forcheating could not be had, and he cites in support of his argument thecase of Eliyatarriby v. Kathiravel'. I have examined that case, and thefacts therein appear to be completely indistinguishable from the facts inthis case. Mr. Justice Drieberg there stated that the conviction on thecharge of cheating was wrong, and that under section 19 (2) of the Pawn-brokers’ Ordinance the pawnbroker was indemnified when he gave theaccused the article, and on the accused giving him the false declarationthe pawnbroker suffered no damage or harm by acting on the falserepresentation in the declaration and he could not therefore have beencheated. The learned Judge then went on to discuss the finding of thePolice Magistrate in that particular case that the pawnbroker was injuredin body, mind, and reputation, and that this comprised the necessaryelement of the offence, and the learned Judge disagreed with the learnedPolice Magistrate and set aside the conviction on the charge of cheating.With all respect to the learned Judge, I must differ from this findingwhich, it would appear from his judgment, in all probability was basedon the fallacy that the words of the second half of section 398 of the PenalCode governed the words of the first half. Mr. Justice Akbar made, if Imay say so with respect, a similar error in the case of Silva v. Kangany etal*. An analytical examination of section 398 will disclose that the twoportions of the section are not to be read together beyond the wordsindicating deception. Provided only that the deception is practised
dishonestly, that is to say, with the intention of causing wrongful gain
that is gain by unlawful means—I do not think that it matters whether1 37 N. L. R. 16.* 10 C. L. R. 32.
350 FERNANDO A.J.—GunetileJce (S.-IPolice) v. Nepo Singtio
the person who is deceived and so delivers the property suffers any harmor damage, in fact suffers anything beyond the technical loss of thepossession of the property. Were the law otherwise, it is manifest that■a good deal of crime punishable under English law would not be punishableunder the Indian Penal Code on which the Ceylon Penal Code is based,which Code was intended to enmesh all offences of dishonest appropriationor acquisition of property under English law, and also other dishonestacts beyond the reach of the English law. The fact that the pawnbrokerupon whom the deception was practised is not the complainant, is not, Ithink, to the purpose. A complaint from him is not required m order tolaunch proceedings. I alter the conviction to one of cheating, and dismissthe appeal.
HANIFFA v. SALIM