136-NLR-NLR-V-61-ATTONEY-GENERAL-Appellant-and-B.-MENDIS-Respondent.pdf
Attorney-General v. Menthis
561
1900Present: Sinnetamby, J.ATTORNEY-GENERAL, Appellant, and B. MENTHIS, RespondentS. G. 678—M. G. Bambantota, 33,204Criminal misappropriation—Ingredients of offence—Must there be an initial innocent
taking ?—Theft—Pencil,Code, ss. 366, 386—Evidence Ordinance, s. 114 (a).
In order to constitute criminal misappropriation of property it is not necessarythat there should be an initial innocent taking followed by a subsequent dis-honest change of intention. If the initial taking of the property not in thepossession of any person is itself dishonest, then too the offence is made out.
Two bulls belonging to S were let loose by his herdsman for grazing on apasture land. The accused was subsequently found at 10.45 p.m. driving thebulls away from the pasture land at a distance of 1£ miles in circumstancesshowing that the accused intended to take the bulls for his own use, to thedetriment of the owner.
Held, that the accused was guilty of criminal misappropriation and not oftheft.
1 (1958) 60 N. L. 3. 428.3 (1956) 58 N. L. B. 234,
3 (1914) 17 N. L. B. 321.
562
SISITETAM B if, J.—A-ttorney-General v. M.enthii>
A
-tjLPPEAX, from a judgment of the Magistrate’s Court, Hambantota.
V. S. A. Pvllenayegum, Grown Counsel, for the (H>mplaiiiant-appellant.M. M. Kumarakulasingham, for the accused-respondent.
Gur. adv. wit.
March 14, 1960. Sebtitetambt, J.—
The accused in this case was charged with dishonest misappropriationof two bulls valued at JRs. 150/- property belonging to one S. P. Samichi-appu, an offence made punishable under Section 386 of the Penal Code.
At the conclusion of the trial, the Magistrate took the view that theoffenee established by the evidence was not criminal misappropriationbut theft and he accordingly acquitted the accused. Against this finding,the Attorney-General has appealed.
The facts as found by the Magistrate are as follows :■—The two bullsin question belonged to one Samichiappu and they were given to hisherdsman who let the animals for grazing. The animals were let looseon the pasture land called Madawinna which Samichiappu describes as“ my pasture land The accused was found driving the two head ofcattle by the police and the Village Headman about 1J miles away fromMadawinna at a place called ISTonagama. ' This incident occurred atabout 10.45 p.m., in the night. The fact that the accused was drivingthe cattle away from the pasture land at a distance of 1J miles showsthat the accused was at that time intending to take the animals to someplace which certainly was not the owner’s. One does not ordinarilyexpect a person at 10.45 p.m. to drive cattle, which are not his, unlesshe intended to take them for his own use, to the detriment of the owner.The learned Magistrate while holding on the facts with the Crown andwhile rejecting the defence put forward by the accused came to theconclusion that, on the facts, the charge of criminal misappropriation? was not made out.
In order to constitute criminal misappropriation, the Magistrate held,there must he an innocent taking followed by a subsequent dishonestchange of intention. He also states that there is no proof of any overt actindicating that the accused had converted or appropriated the animalsto his own use. I think it must be conceded that the nature of the overtact required to constitute conversion depends on the article converted.If one finds an article which is in common daily use, has no identifyingmarks, ean easily be carried on one’s person, and takes it; then, in theabsence of other evidence, the mere taking is not sufficient to indicatea conversion because it may be a neutral act consistent with an innocenttaking with a view to returning it to the lawful owner : but, if the propertyis of a kind that cannot be easily carried on one’s person, and is capableof being easily identified, as in this case, by the brand marks; then, drivingit away from where it is kept normally, after dark, must surely indicatethat the intentions of the alleged offender are not honest. • What was the
SE^TSTETAMBIT, J-—Attorney-General v. Mentbis
563
need to drive them at all if the alleged offender intended to find theowner ? He only had to leave the animals where they were and informthe owner or inform the nearest Village Headman, bat that is notwhat the accused did. He drove them 1 J- miles away from where they weregrazing. They may, of course, have strayed, but even if they had strayedthere was no need to drive them in the way in which these two head ofcattle were being driven when the police saw the accused. It is alsoclear from the evidence that the accused had been driving the animalsfor a short distance before the police party became aware of his approach.Incidentally, these two animals were not by themselves, alone, but theywere being driven along with some other animals which belonged to theaccused; suggesting, thereby, that the accused was driving them to aplace where he ordinarily keeps his own animals. That fact too indicatesthat the accused intended to convert these animals also to his own use.I cannot, therefore, agree with the Magistrate that in this case there wasno overt act in proof of the conversion.
The only question that now remains for consideration is whether, toconstitute criminal misappropriation, there should be an initial innocenttaking. Would it be criminal misappropriation if the initial taking wasalso dishonest? In this particular case, it is not clear whether the initialtainng tv as honest or dishonest because there is no evidence in regard tohow, where, when, and in what circumstances, the accused first cameby the animals. If it was an innocent taking, then his subsequent actof driving them along with his own animals would, in my opinion, amountto an act of dishonest conversion and would clearly amount to criminalmisappropriation ; but if the original taking was also dishonest, whatwould the resulting offence be ? The learned Magistrate thought thatit would be theft because the property, he thought, was at that time, inthe custody of the herdsman on behalf of the owner; but there is noevidence at all of this fact and the cattle may well have strayedafter the herdsman had left them on the pasture land. From the merepossession of the cattle by the accused, one cannot apply the presumptioncreated by Section 114 of the Evidence Ordinance in the absence ofproof that the animals had been stolen, and hold that he was either thethief or the receiver of stolen cattle. If, for instance, there was evidencethat the animals had been tethered and that the ropes had been cut, then,on the circumstantial evidence, one may have legitimately inferred thatthere was a theft; but in ih absence of anything to show that the propertyhad been stolen, the presumption is inapplicable. It applies only if therecent possession was in respect of goods shown to be, or proved to havebeen stolen.
In the present case one can hardly say that the cattle had been stolenby somebody. They may well, as I have said, have strayed and thenbeen taken possession of by the accused. In the alternative, theaccused may have taken possession of the animals in the pasture landitself. Even in that case, in my opinion, it cannot be said to have beenin the possession of the herdsman. There is nothing to show that thepasture land was enclosed or was under the control of the herdsman orwas even the private property of the owner or the herdsman. No doubt,
664
SIN1TETAMBY, J,—Attorney – General v. Menthis
there are decided Indian cases in which, in certain circumstances, cattlein the control of a herdsman on pasture land have been held to be in thepossession of the owner, but there are also other Indian cases in whichthe opposite view has been taken.—Ifr-depends entirely-onthe facts ofeach particular case. The Magistrate relied on a case to which Ratanlalin his commentary made reference but Ratanlal has also referred to acase where a person who took possession of a bullock which had strayedbut in respect of-which there was no evidence that it was stolen property,in which it was held that the accused- was guilty of criminal misappro-priation and not of theft, Phnd Ghtmd Dube1. Our own courts have takenthe view that where there is no definite evidence of theft and there is apossibility of the cattle having strayed the proper charge is one of criminalmisappropriation and not theft. In SaZgado v. Mudali PvZZa a the evidenceshowed that it was not possible to say if the cattle were stolen or hadstrayed of their own accord. The only evidence was that they weretethered in an estate and that when the wateher went on Ms rounds hefound them missing. This was even a stronger case than the presentone. The accused in that case was convicted of theft but the SupremeCourt held that the proper offence in respect of wMch the convictionshould have been entered was criminal misappropriation.- In tke recentcase of Gratiaen Per era v. The Queen 3 a bench of two Judges consideredwhether in order to constitute the offence of criminal misappropriationit was necessary for there to be established an initial innocent possessionfollowed by a subsequent dishonest conversion, hut for the purpose ofthat case it was not necessary to decide the question and the matter wasleft open. There are, however, dicta of this Court supporting the viewthat there should be evidence of an innocent initial possession followedby a subsequent dishonest conversion to constitute the offence. InGeorgesy v. Seyadu Saibo4 Justice Middleton took the view that wherean accused person initially comes by a cheque dishonestly he cannot beconvicted, of criminal misappropriation. At the same time the learnedJudge stated that the offence of receiving stolen property was not madeout and the presumption from recent possession was not applicable asthere was no evidence that the cheque had been stolen. In spite of theimmorality of the accused’s conduct, the learned Judge felt obligedto acquit him. A somewhat similar view was expressed by JusticeWalter Pereira in KanavadipiUai v. Koswatte5. In that case, of course,there was in point of fact an innocent initial taking but in dealing with thequestion the Judge thought that there could be no criminal misappro-priation unless the possession of the thing alleged to have been misappro-priated was come by innocently and retained by a subsequent changeof intention: the evidence was insufficient to show a subsequent dis-honest conversion and the learned Judge on that ground set aside theconviction and acquitted the accused. The question, therefore, did notspecifically arise for decision in that case. If one looks at the express pro-visions of Section 386 of the Penal Code there is nothing in it to suggest
11929 Allahabad 52.
8 (1941) 43 N. L. R. 94.
(1960) 61 N. i. R. 522.
(1902) 4 Brown’s Reports 91.
(1914) 4 Balasinghaan's Notes of Gases 74.
SPreTETAMBY, J.—Attorney-General v. Menthie
565
that there should be an innocent initial taking. One cannot help won-dering whether in expressing the view that an initial innocent possessionwas necessary to constitute criminal misappropriation Judges wereinfluenced by the principles governing the English law of larceny. Toconstitute larceny the initial taking must also be dishonest. If the initialtaking was innocent a subsequent -dishonest detention of the articletaken would not amount to larceny or to any other offence under theEnglish Law. In the case of Moynes v. Goopper1 where Moynes wascharged with larceny the facts showed that into his pay packet was putmore money than he was entitled to. He took it originally innocently,not knowing what the packet contained; but, even though he laterknew that it contained more than what was due to him, he dishonestlydecided to misappropriate it to his own use. He was charged before theJustices who. convicted him of larceny but in appeal the convictionwas set aside on the ground that the original taking was innocent. Thedeoision in Moynes v. Goopper {supra) which merely perpetuated theexisting law in England, was the subject of much criticism in legalcircles and provoked one commentator in the Law Quarterly Reviewto remark “ if other countries have a sensible law of theft why shouldwe not have one too ”.
The Penal Code departed in this respect from the English law andmade it an offence to misappropriate property even if the originalpossession was honest. Explanation 2, it seems to me, was merely inten-ded to emphasize the difference between the law in England and under theCode but it does not postulate that in order to constitute criminalmisappropriation the initial taking must always be honest. Indeed itsuggests that an initial dishonest taking also amounts to criminal misap-propriation 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, doesnot take or misappropriate it dishonestly”, thereby suggesting thatif the finder does not take it for such a purpose he will be guilty of theoffence. The main provisions of Section 386 make dishonest misap-propriation at any stage an offence; explanation 2 only provides for aspecial case where the initial taking is honest and is intended to protectthe finder of property not in the possession of anyone so long, and .onlyso long, as his continued possession of that .property is honest. If,of course, the property taken was in the possession of some person theresulting offence would be theft.
In my opinion, therefore, in order to constitute criminal misappropria-tion under our law it is not necessary that there should be an innocentinitial taking. If the initial taking of the property not in the possessionof anyone is dishonest then too the offence is made out. In regard tothis, I agree with the view expressed by Justice Moseley in Salgado v.Mudali Pulle {supra).
I would accordingly set aside the order of acquittal entered by thelearned Magistrate and substitute in its place a verdict of “ guilty”. Iwould also remit the case back to the Magistrate with directions that heshould convict the accused of the offence charged and impose anappropriate sentence.
Acquittal set aside.
i {1956) 1 Q. B. 439.