056-NLR-NLR-V-49-CHELLAPPAH-Appellant-and-CHELLIAH-Respondent.pdf
BASNAYAKE J.—Chellappah v. CheUiah.
191
1948Present: Basnayake J.
CHELLAPPAH, Appellant, and CHELLIAH, Respondent.
S. C. 1,271—M. G. Batticaloa, 4,213.
■Criminal breach of trust—Retention of property in bona fide assertion of a coiim—Key of Co-operative Stores—Refusal to hand over to new president—V alidityof election disputed—Penal Code, section 388.
Accused who was the president of a Co-operative Stores Society was notre-elected at the last meeting. The accused and others disputed the validityof the election of the new president and the accused refused to hand over tohim the key of the premises of the Society. The accused was convicted ofcriminal breach of trust of the key.
Held, that the ingredients of the offence of criminal breach of trust had notbeen established. The retention of property in the bona fide assertion ofa claim to retain it does not amount to criminal breach of trust.
A PPEAL from a judgment of the Magistrate, Batticaloa.
E. Chitty, with H. Wanigaiunga, for the appellant.
C. V. Ranawake, for the respondent.
Cur. adv. vult.
Eebruary 27, 1948. Basnayake J.—
The appellant was convicted of the offence of criminal breach of trust■of the key of premises No. 27, 28, and 29, Bar Road, Kodamunnai, inBatticaloa, and sentenced to pay a fine of Rs. 50.
It appears from the evidence that the appellant who is a teacher in a•Government School was till May 25, 1947, the president of the Koda-munnai Co-operative Stores Society. At the Annual General Meeting ofthe Society held on that date the appellant was not re-elected. There
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BASNAYAKE J.—Chellappah v. Chelliah.
seems to have been some dissatisfaction over the proceedings of thatmeeting and the appellant and others disputed the validity of the newelection. The appellant therefore refused to hand over, to the newpresident, the stores as well as the key of the premises at which thebusiness of the Co-operative Society was conducted. It is also inevidence that the dissentients were in correspondence with the Registrarof Co-operative Societies who intervened in order that the public maynot be denied essential supplies pending a settlement of the dispute.The appellant does not deny that he did not part with the key of thepremises above mentioned till August 4, 1947. He claims that he wasunder no obligation to hand it over to the newly elected president.He asserted that the landlord of the premises was entitled to it as he hadgiven notice of termination of the tenancy of the Society. The key waseventually handed to the accused’s brother, the brother-in-law and agentof the landlord. The evidence as to how the appellant came into posses-sion of the key is vauge and indefinite nor is there anything to indicatethat the appellant was under a legal obligation to hand over the key tothe incoming president who claimed it. No evidence has been led toshow that the President of the Society was the person entitled to holdthe key of the Society’s business premises.
On this evidence I am not prepared to hold that the offence of criminalbreach of trust as defined in section 388 of the Penal Code has beencommitted.
The essential ingredients of an offence against that section are that—
the accused was entrusted with the property or with dominion
over the property referred to in the charge,
he misappropriated or converted to his own use, or used or disposed
of the property in respect of which the charge is laid,
he did so dishonestly,
he did so in violation of any direction of law prescribing the mode in
which such trust was to be discharged or in violation of anylegal contract, express or implied, which he has made touchingthe discharge of such trust, or that he wilfully suffered anyperson to do any of the acts mentioned in (6), (c) and-{<3).
None of the above ingredients have been established against theappellant. The retention of property in the bona fide assertion of aclaim to retain it as in this case does not in my opinion bring a personwithin the ambit of section 388 of the Penal Code.
I set aside the conviction and sentence and acquit the accused.
Accused acquitted~