H. KARUNAPALA and 2 others, Appellants, and THE STATE, Respondent

068-NLR-NLR-V-77-H.-KARUNAPALA-and-2-others-Appellants-and-THE-STATE-Respondent.pdf


Karunepala v. The State
337
1974 Present: Tennekoon, C.J., Udalagama, J., and
Sharvananda, J.
KARUNAPALA and 2 others, Appellants, and THE STATE,
Respondent
S. C. 421-423/71—M. M. C. Colombo, 74446
Hire-purchase agreement—Bona fide retaking possession of the articlesold—Charge of robbery based, on such seizure—Absence of mensrea—Effect—Penal Code, ss. 21, 22, 51, 72, 366, 379, 380, 386—Clauseenabling parate execution—Whether it is valid in law.
The owner of a motor vehicle, which was the subject-matter ofa hire-purchase agreement, caused the vehicle to be seized by theaccused-appellants while the vehicle was on a test run by a repairer.At the time of the seizure the hirer of the vehicle had defaultedin the payment of some instalments due in respect of the purchaseprice. The evidence established that the owner and his agents, theappellants, acted bona fide and in the honest belief that they wereentitled to exercise the right of parate execution which the hire-purchase agreement purported to vest in the owner of the vehicle.
Held, that the existence of a bona fide claim of right in pursuanceof which the possession of the vehicle was retaken by the ownerwas sufficient to negative or at least put in serious doubt the mensrea that the prosecution must establish before the accused couldbe convicted of theft or robbery.
Per Tennekoon, C.J., and Sharvananda, J.—In the present caserelating only to the conviction of the appellants for robbery it isnot necessary to consider whether a provision for parate executioncould have been validly incorporated in the hire-purchase agreement.
Per Udalagama, J.—“ A Hire Purchase Agreement entered freelybetween contracting parties, giving one of the parties the right totake possession of the property on a breach of a clause in the agree-ment without the intervention of the Court, and subject to theimplied condition that he uses no more force than is reasonablynecessary for that purpose, is valid and not obnoxious to the RomanDutch Law. I am in agreement with the ratio decidendi laid downin de Silva v. Kuruppu 42 N. L. R. 539.”
ApPEAL from a judgment of the Municipal Magistrate’sCourt, Colombo. The facts are stated in the judgment ofUdalagama, J.
N. Samarakoon, with Chula de Silva, for the accused-appellants.
G. E. Chitty, with Mervyn Fernando and K. N. Choksy, asAmicus Curiae.
Shiva Pasupati, Solicitor-General, with F. Mustapha, SeniorState Counsel, and D. C. Jayasinga, State Counsel, for theAttorney- General.
}'Cur. adv. vult.
LXXVU—l s1*—A 10688—8,000 (74/11)
338
TENNEKOON, C.J.—■Karunapala v. The Stale
July 2, 1974. Tennekoon, C.J.—
I agree to the order proposed to be made in this case by mybrother Udalagama, J. I would however like to add that I basemy conclusion only on the absence of proof of that element inthe offence of theft which is contained in the words “ intendingto take dishonestly ” which occur in the definition of theft insection 366 of the Penal Code. I agree with my brother that theexistence of a bona fide claim of right in pursuance of which the“ taking ” was done, is sufficient to negative or at least put inserious doubt the mens rea that the prosecution must establishbefore a conviction for theft can be had. In the Penal Code,under the definition of “ theft ” (section 366) and under thedefinition of “ criminal misappropriation ” (section 386), thesetwo illustrations appear : —
A in good faith believing property belonging to Z to be
A’s own property takes that property out of B’spossession. Here as A does not take dishonestly, hedoes not commit theft.
A takes property belonging to Z out of Z’s possession in
good faith believing at the time when he takes thatthe property belongs to himself, A is not guilty oftheft; but if A after discovering his mistakedishonestly appropriates the property to his own use,he is guilty of an offence under this section.
These illustrations are in themselves a sufficient answer to thequestion whether proof that he was acting under a bona fideclaim of right affords a sufficient ground of acquittal for a personaccused of theft.
In the present case the Finance & Investment Company wereat the time of the alleged offence not only the owners of thelorry which is the subject of the charge, but were also, underthe agreement, entitled to possession of the lorry. There cantherefore be no question that the Finance Company was acting inthe belief that they were owners entitled on the date of thealleged offence to possession of the vehicle and that the hirerhas no right to possession. The result might have been differentif there was anything to suggest that the Insurance Companywithout due care and attention came to the conclusion that thehirer was in breach of his agreement; having regard to section51 of the Penal Code which says “ nothing is said to be done orbelieved in good faith which is done or believed without duecare and attention ”, a defence based on a bona fide claim ofright would in those circumstances fail. The accused appellantswere the agents of the Company and their state of mind was nodifferent from that of their principal.
U DA LA GAMA, J.—KarunapcUa v. The Slate
339
On the question of “ consent ” I should like to say that section366 of the Penal Code contemplates absence of consent on thepart of the person out of whose possession the property is taken.In the present case the property was taken out of the possessionof Soorasinghe, the repairer and not out of the possession of thehirer. It seems to me that the consent which the hirer hadexpressed in the hire-purchase agreement to the Finance &Investment Company taking possession of the vehicle upon abreach of the agreement cannot be regarded as a consent givenby Soorasinghe. This however does not affect the conclusion Ihave reached that the accused must be acquitted for want ofproof of the mens rea.
Lastly I would like to make some observations on the questionwhether the owner under a hire purchase agreement mayexercise such reasonable force as may be necessary to retakepossession of vehicle let under the hire-purchase agreement.This question is best considered in relation to a case where theowner or his agents have used criminal force in retaking posses-sion of the vehicle. If the prosecution in such a case establishedthe ingredients of the offence of criminal force would it be adefence for the accused to show that although the offence ismade out, he used only reasonable force in the exercise of aright of parate execution ? The accused will thus necessarily haveto rely on the general exception contained in section 72 of thePenal Code which enacts that “ nothing is an offence which isdone by any person who is justified hy law or by reason of amistake of fact and not by reason of mistake of law in goodfaith believes himself to be justified by law in doing it ”. Thequestion whether a person charged with using criminal forceis justified by law in using force would depend on the questionwhether a provision for parate execution can be validly incor-porated in an agreement such as is under consideration in thiscase. I do not think that in this appeal where we are concernedonly with the offence of theft, it is necessary to pronounce uponthis question. I would myself like to reserve it for some futureoccasion, as this appeal can be disposed of without finding theanswer to that question.
Udalagama, J.—
The accused in this case were charged with committingrobbery of a Morris Commercial Lorry bearing No. 33 Sri 5052valued at Rs. 20,000 from the possession of D. W. Soorasingheof Ratnam Motors and thereby committed an offence punishableunder Section 380 of the Penal Code. The learned Magistrate,who was also Additional District Judge, assumed jurisdictionunder Section 152 (3) of the Criminal Procedure Code, as
340
^imAT.AflAMA, JKarunapala V. The State
Additional District Judge, and after trial, found the 2nd, 3rd and4th accused guilty of the charge and acquitted the 1st accused.The 2nd, 3rd and 4th accused were each sentenced to threemonths rigorous imprisonment and a fine of Rs. 500, in default toa further 6 months rigorous imprisonment. The 2nd, 3rd and4th accused have appealed against the conviction and sentence ofthe learned Additional District Judge.
Shortly the facts leading to the accused being charged are asfollows : One D. D. S. Yapa had on a Hire Purchase Agreement(Dl) with an option to purchase, hired out Morris CommercialLorry bearing No. 33 Sri 5052 from the Finance and InvestmentsCompany of 15/1, Guildford Crescent, Colombo 7 at a monthlyrental of Rs. 460, payable on or before the 20th of each month,commencing in the month of June 1969. On the hirer paying theaggregate sum of Rs. 21,900, he was to have the option of gettinga transfer of the absolute ownership of the vehicle. On the 21stof February 1970 the Finance & Investments Company, throughtheir agent the 1st accused, seized the vehicle while it was beingrun out on a test run by D. W. Soorasinghe of Ratnam Motors,Rajagiriya. The actual seizure of the vehicle was done by the2nd, 3rd and 4th accused on instructions from the 1st accused.After the vehicle was seized by the 2nd, 3rd and 4 th accusedan entry was made at the Cinnamon Gardens Police Stationand the vehicle was garaged at Albion Garage, where the carsseized on behalf of the Finance & Investment Company are kept.In the meantime Yapa was informed of the seizure and he tookimmediate steps to inform the police, who made inquiries andfiled the present action. The defence of the accused was that theyacted in the bona fide belief that they had a right under theHire Purchase agreement to seize the vehicle and there was nodishonest intention on their part to take the vehicle out of thepossession of Soorasinghe or Yapa.
Section 379 of the Penal Code defines robbery as follows : —
“ In all robbery there is either theft or extortion. Theft' is “ robbery ” if, in order to the committing of the theft, orin committing theft, or in carrying away or attempting tocarry away property obtained by the theft, the offender,for that end voluntarily causes or attempts to cause to anyperson death or hurt or wrongful restraint or fear ofinstant death or of instant hurt or of instant wrongfulrestraint.”
It will be seen from the above definition that theft is one of theprincipal ingredients of the offence of robbery.
TJ DAL AG AM A, J.— Karunapala v. The State
341
Section 366 defines theft as follows : —
“ Whoever intending to take dishonestly any movableproperty out of the possession of any person without thatperson’s consent moves that property in order to suchtaking, is said to commit theft. ”
Two of the essential ingredients of theft are that there shouldbe a removal of the property from the person in possession,“ without his consent ”, and “ an intention to take dishonestly ”.According to Section 22 whoever does anything with the inten-tion of causing wrongful gain to one person or wrongful lossto another, is said to do that thing ‘ dishonestly According toSection 21, “Wrongful gain” is gain by unlawful means ofproperty to which the person gaining is not legally entitled and“ Wrongful loss ” is the loss by unlawful means of property towhich the person losing it, is legally entitled to.
The argument of the learned Solicitor-General was that theFinance & Investment Company was not legally entitled toretake the vehicle inasmuch as Clause 8 subsect on 5, and clause9 of the agreement D1 was against public policy and so bad inlaw. That being so, when the vehicle was seized, wrongful losswas caused to Yapa in depriving him of the vehicle to whichhe was legally entitled to. In any event it was submitted thatthe Finance & Investment Company had failed to give notice ofthe termination of the contract D1 to Yapa and call upon himto deliver the vehicle to the Finance & Investment Company. Itwas argued that their failure to do so rendered the seizureillegal under the agreement, resulting in a dishonest intentionon the part of the Finance & Investment Company to take thevehicle from the possession of Yapa.
Adverting to the submission that the clause relating to theright to terminate the contract on a breach of one of the con-ditions of the contract and retake possession of the vehicle, thelearned Solicitor-General subm'tted that the law applicable tothe case was the Roman Dutch Law, which did not recogniseparate-executie in the case of movables except in the case ofpledges. In support of the proposition the learned Solicitor-General relied on Wille’s Principles of South African Law (4thEdition) pages 237 and 245 and Lee’s Introduction to the RomanDutch Law (5th Edition) page 200. It was argued that the caseof Silva v. Kuruppu1 42 N. L. R. 539 was wrongly decided andinvited the Court to review the ratio decidendi laid down inthat case.
1 (1941) 42 N. L. R. 539.
A 10583 (74/11)
S42
UDALAGAMA JKarunapala v. The State
Contracts of Hire Purchase were not known to the RomanDutch Law. The nearest we have to the relationship betweenOwner and Hirer is the contract between lessor and lessee andmortgagor and mortgagee. Wille at page 237 states :
“ A clause allowing the mortgagee to sell the propertywithout having recourse to the courts, a procedure knownas parate-executie is valid in the case of movables pledgedand in possession of the creditor, provided that the latterin effecting the sale does not prejudice the rights of thedebtor. ”
Lee in his Introduction to the Roman Dutch Law (5th Edition)page 200 states :
“ The mortgaged property may be sold without an orderof Court, with the consent of the debtor, but according toVoet, an agreement for extra judicial sale contained in themortgage deed will not be enforced, if the debtor afterwardsobjects or if a private sale would be prejudicial to otherhypothecary creditors. ”
Two questions arise on the submissions made by the learnedSolicitor-General, namely whether the Roman Dutch Lawapplies in the case of Hire Purchase Agreements and if so,whether parate-executie was disallowed in all circumstances.As neither Chapter 79 nor 84 of the Legislative Enactmentslets in the English Law on the subject of Hire Purchase Agree-ments, it would appear that the Roman Dutch Law would apply.One is then left with the problem whether parate-executieapplies in the case of Hire Purchase agreements. The learnedSolicitor-General submitted that if, parate-execute is recog-nized in the case of Hire Purchase Agreements, it would beagainst public policy and will lead to undesirable results, wherea free licence would be given to parties, to take the law intotheir own hands. Under the English Law there is no doubt thatwhere there is an agreement to retake possession of theproperty by the owner, on the failure of the hirer to pay theinstalments, the owner in the exercise of the agreement isentitled to retake possession of the property—Volume 16Halsbury’s Laws of England (Hailsham Edition) para. 783,Hewison v. Ricketts1 (1894), 63 L.R.Q.B. 711 and Brooks v.Bernstein* (1909) 1 K. B. page 98. Also see Moorgate MercantileCo. Ltd. v. Finch and another * (1962) 2 A.E.R. 467. The Roman
1 (7894) L. R. Q. B. 711.* (1900) 1 K. B. 98.
* (1962) 2 A. E.R. 467.
TJDALAGAMA, J.—Karunapala v. The State
343
Dutch authorities on this point do not seem to be quite sodefinitive either way. Howard C. J. in de Silva v. Kuruppu1 42N.L.R. 539 observed that :
“ Hire Purchase Agreement is a contract of moderndevelopment. Hence the treatment of the subject in theRoman Dutch text booksis somewhat scanty.”
What could be gleaned from the Roman Dutch authorities is inrelation to leases and mortgages both of which in the main dealwith immovable property. Here too, while the better opinionseems to be, that a clause permitting parate-executie in a mort-gage of immovable is not enforceable, in the case of movablespledged and in possession of the creditor where the mortgageeis allowed to sell the property without having recourse to theCourts, the sale is valid. Howard, C. J. with whom Soertsz, J.agreed, was of the view, that he could not find any authority forthe proposition, that the law with regard to Hire Purchase ofmovables differed from the English Law and where a clause isinserted in a contract of Hire Purchase providing for the retakingof possession by the owner after the default by the hirer inpaying instalments, is contrary to public policy. Tambiah, J.'sobservation in 68 N.L.R. 519 that the remedy of a lessor againstan over-hold:ng lessee is to ask for damages and ejectment in acourt of law would be in respect of immovable property. Hisobservation that in the case of movable property, the owner’sremedy against a hirer, who overholds, is to ask for damages andreturn of the movables, is not supported by any authority. On theother hand Wessels on the Law of Contract in South Africa,Volume I page 456 has the following passage : —
“ Parties are free to make any contract they like providedit is not illegal, and if they agree that a thing is to be letby the one to the other until a future event occurs, andthen to be regarded as having been sold by the former tothe latter, there is nothing to prevent them from doing so. ”
Villiers, C. J. in Henderson v. Hanekom* 20 S.C. at page 519states :
“ All modern commercial dealings proceed upon theassumption that binding contracts will be enforced by law.However anxious the Court may be to maintain the RomanDutch Law in all its integrity, there must in the ordinarycourse be a progressive development of the law, keepingpace with modern requirements. ”
1 (1941) 42 N. L. R. 539.
• 20 S. C. at 519.
344
TJDALAGAMA, J.—Karunapala v. The State
In Osry v. Hirsch, Loubser & Co.1 1922 C.P.D. at page 247 KotzeJ. states :
“ The conclusion at which I have arrived is that an agree-ment for the sale, by means of parate-executie of movablesdelivered to a creditor by his debtor is valid in law. It is,however, open to the debtor to seek the protection of theCourt if, upon any just ground, he can show that, incarrying out the agreement and effecting a sale, the creditorhas acted in a manner which has prejudiced him in hisrights.”
In Paruk v. Glendale Estate Company ’ 1924 N.P.D. 1 Tatham, J.found no distinction between movables and immovables. InHongkong and Shanghai Bank v. Krishnapillai 3 33 N.L.R. 249 theview was expressed that the right of a pledgee to sell hissecurity without recourse to a Court of law is peculiar to theEngland Law of Pledge, and the Roman Dutch Law in the matterof rights of mortgage and pledge does not give place to theEnglish Law when the mortgagee or pledgee is a Bank. In deSilva v. Kuruppu4 42 N.L.R. 539 it was held that:
“ the owner of a thing let on a Hire Purchase Agreementis entitled to exercise his right to retake possession givento him under the agreement without the intervention ofCourt provided he uses no more force than is reasonablynecessary for the purpose .”
In Mercantile Credit Ltd. v. B. H. Silva and two others 76N. L. R. 193 it was held :
“ When there is a valid agreement of Hire Purchase andthe hirer is in default in payment of the monthly rentals,the owner is in law entitled to retake possession of thearticle let and dispose of it as he pleases. ”
The learned Solicitor-General also cited to us H. J. Ransomv. Trilok Nath & others ° Volume 43 (1942) Criminal LawJournal page 578 where the Oudh Chief Court held that :
“Where a motor lorry is given by a Company to a personon a Hire Purchase system under an agreement, entitlingthe Company to retake possession of the lorry in case ofdefault of payment of hire by the purchaser, the Companyor its agent are not entitled without the consent of thepurchaser himself, to retake possession of the lorry by forceor by its removal from the hands of his servants who haveno express or implied authority to give any consent onbehalf of the purchaser. ”
’ 1*22 a. P. D. at 247.* (104l 42 N. L. R. KS9.
8 t'‘24 N. P. D. I.* (1070' 7f, N. L. R. 103.
8 {1932) 33 N. L. It. 249.* Vol. 43 Criminal Law Journal 578.
UDALAGAMA, JKarunapala v. The Stale
345
Tiie present case couid be distinguished from this case in thathere tne nirer has consented to me owner retaking possessionof the vehicle without giving notice of the termination of thecontract.
In Volume 35 (1934) Criminal Law Journal page 761 theCalcutta High Court in the case of Mohammed Abdul Khoyer v.Asgar Khan and another1 held that:
“ Where under an agreement of Hire Purchase theemployees of a Company were justified in taking the partsof the machine supplied by them if instalments were notpaid, and acting on a bona fidei impression that instalmentshad not been paid, removed the parts, the employees actedon a bona fide mistake of facts and that there was nodishonest intention such as is required for a case of theft. ”
This case does not appear to have been cited before the Judgeswho heard the case reported in Volume 43 (1942) Criminal LawJournal page 578.
In the face of these authorities, in England, South Africa,India and our own Courts and the modern trend to freely permitparties to contract with each other provided such contract is notvoid or illegal, will it not be putting the clock back in declaringsuch contracts against public policy ? Inherently there doesnot appear to be anything wrong in it. In a free society if ahirer accepts something less than the full rights of ownershipor possession, I cannot see how he could later complain aboutit. In regard to the criticism that it would lead to people takingthe law into their own hands, I am of the view that the armof the law in the modern State is sufficiently long and strongto look after that aspect of the matter.
Mr. Chitty, who appeared as amicus curiae, argued that onecannot say that a clause giving the owner the right to retakepossession of the vehicle from a hirer consequent on a breachof a condition of the agreement is necessarily harsh or oppressive.In these Hire Purchase Agreements, the borrower is anxious toobtain the money quickly and without the security one hasto furnish when getting a loan from an institution like a Bankor Insurance Company. Hence the facility of recovery com-pensates for the financial insecurity of the transaction. I agreewith Mr. Chitty that the impact of the view, that parate-executiewas an infringement of the right of the party in possession, hasworn thin in relation to the civil law and non existent inreference to the criminal law. I am of the view that a Hire
1 35 Criminal Law Journal 761.
346
U UAL AG AM A, J.—Karunapala v. The Stall
Purchase Agreement, entered freely between contracting parties,giving one of the parties the right to take possession of theproperty on a breach of a clause in the agreement without theintervention of the Court, and subject to the implied conditionthat he uses no more force than is reasonably necessary for thatpurpose, is valid and not obnoxious to the Roman Dutch Law.I am in agreement with the ratio decidendi laid down in deSilva v. Kuruppu1 42 N.L.R. 539.
Under clause 8 (5) of the Hire Purchase Agreement D1 if thehirer failed to observe and perform all or any of the terms,conditions and stipulations contained in the agreement, theowner was “ entitled at any time forthwith to determine thehiring without giving notice of such termination to the HirerUnder Clause 9 upon the hiring being determined the hirer hadto forthwith deliver the vehicle to the owner and in the eventof his failing to do so, the owner had the right through hisagents, representatives, servants and any person duly authorisedto enter upon any premises, building or place where the vehiclemay be, and take possession of the same.
In the instant case, according to the evidence of Mr. G. A. DonDavid, Accountant of the Finance & Investment Company Ltd.,Yapa had to pay Rs. 460 a month in 15 monthly instalments onthe Hire Purchase agreement D1 and he had failed in payingtwo of those instalments, namely for the months of December1969 and January 1970. Yapa was written to of the terminationof the contract and was also informed by telegram. Under clause8(5) the hiring could be determined without notice in such aneventuality and under Section 9 possession of the vehicle retaken.A point was made both in the lower court and in appeal thaton P5 dated 19.2.70 a statement on top of the receipt appearingto the effect “ without prejudice to our rights to terminate ourcontract and take re-possession of the vehicle ” proved that nonotice had been given of the termination of the contract. WitnessDavid in the course of his evidence explained how this statementcame to be written in P5, viz. his instructions to the cashierwere to write “ without prejudice to our rights under thecontract which has been terminated ”, but that she had writtenit in the way it now appears on P5. The receipt P6 dated 25.4.70states : “ without prejudice to our rights under the contractwhich has been terminated ”. Obviously, the legend on P5 isa bona fide mistake by the cashier. The letter D3 by the Finance& Investment Company to the 1st accused authorising the seizureof the vehicle is dated 12.2.70. This could only be on the basis
1 (1941) 42 N. L. M. 539.
TJDALAGAMA, J.—Karunapaia v. The Plate.
347
of the termination of the agreement PI. So that there appearsto be no doubt that Yapa had defaulted in the payment of theinstalments for December and January and under the provisionsof the agreement the contract D1 was terminated with noticeto him. Assuming that the Finance & Investment Company hadnot given notice of termination of the contract to Yapa, thequestion arises whether notice of the termination of the contractwas a requirement of the contract D1 ? According to D1 thecontract could be terminated “ without giving notice of suchdetermination to the hirer ”. Don David’s evidence on this point,however, was that Yapa was informed both by letter andtelegram, as is usual on such occasions, that he was in arrearsand that the contract was terminated. In those circumstancesthe Finance & Investment Company under clause 9 had the rightto retake possession of the vehicle to which writing Yapa hadfreely given his antecedent consent. I see nothing wrong in suchconsent being given before hand.
The resulting position was that Yapa had given the requisiteconsent to the retaking of the vehicle on the occurring of certainevents. Under Section 366 of the Penal Code one of the requisiteingredients of theft is the taking of the property out of thepossession of another “ without that person’s consent ”. As Yapahad given his consent to the retaking of the vehicle in the eventof default of instalments, in my view the prosecution had failedto establish the charge, and the accused were entitled to anacquittal.
There was another ground on which the accused were entitledto an acquittal of the charge in this case. The agreement PIbeing good and binding on the parties, immediately the contractwas terminated, under clause 9, the Finance & InvestmentCompany had a right to retake possession of the vehicle. Atleast they had every ground to think that they had such a right.Actually on this belief they issued the letter of authority D3with instructions to inform the police, immediately after theseizure of the vehicle, the fact of the retaking of the vehicle onthe agreement Dl. The 1st accused to whom D3 was issuedpassed it on to the 4th accused with similar instructions. The4th accused along with 2nd and 3rd accused after the seizure ofthe vehicle had in fact informed the Cinnamon Gardens Policeof the seizure. In these circumstances one cannot help, but cometo the conclusion that the 2nd, 3rd and 4th accused have actedin the honest belief that they had a right to take possession of
348
SHARV ANANDA, J.—Karunapala v. The State
the vehicle. The whole test of dishonesty under Section 366 ofthe Penal Code is the mental element of belief and the test issubjective—Archbold Criminal Pleading, Evidence and Practice(36th Edit, on) Section 146. In Rex v. Bernard1 (1938) 2AE. R.140 it was held that :
“ a claim of right exists whenever a man honestly believesthat he has a lawful claim even though it may be completelyunfounded in law or in fact. ”
In Rex v. Skivington2 (1967) 1 A. E. R. 483 Lord Parkerobserved,
“ that a claim of right is a defence to robbery or anyaggravated form of robbery and that it is unnecessary toshow that the defendant must have had an honest beliefalso that he was entitled to take money in the way he did. ”
In the instant case I am satisfied that when the 2nd, 3rd and4th accused seized the lorry from the possession of T. W.Soorasinghe on 21.2.70 at the Ayurvedic Hospital Junction,Borella, they were acting in the honest belief that they had aright to seize the lorry on the agreement D 1. I, however, wishto make it clear, that the right to retake possession of a movableproperty on a Hire Purchase Agreement, where such right isexpressly reserved to a Finance Company, does not entitle theFinance Company or its agents to use more force than isreasonably necessary for the purpose. I would quash theconvictions of the 2nd, 3rd and 4th accused and acquit them ofthe charge.
Sharvananda, J.—
I agree with the order proposed by my brother Udalagama J.One of the principal ingredients of the offence of theft is theintention to take dishonestly- A bona fide claim of right negativesdishonest intention. The essence of this defence is the honestyof belief entertained by the accused that he was in law entitledin the circumstances to take the article from the possession ofthe other. This belief must not be a mere colourable pretenceto obtain possession.
Claim of right being a defence of theft is also a defence torobbery of which theft is a constituent.
1 (1938) 2 A. E. R. 140.
(1967) 1 A. E. R. 483.
SHARVANANDA, J.—Karunapala v. The State
349
In the instant case the prosecution has failed to establish thatthe accused took possession of the hired vehicle “ dishonestly ”within the meaning of the provisions of the Penal Code. Theevidence on record does not disclose that the accused appellants,as agents of the Finance Company, acted otherwise than in thehonest assertion or exercise of the right of parate executionwhich the Hire Purchase agreement purported to vest in theCompany. The Finance Company claimed that it was entitledunder the provisions of the Hire Purchase agreement to retakepossession of the hired vehicle on default being made in thedue payment of rentals by the hirer. That this claim was bonafide entertained by the Company cannot be doubted. The clauserelating to parate execution was part of the agreement and wasthere for what it was worth. It, at least, supports the plea ofbona fide claim of right to retake possession without recourseto a Court of law. The Company instructed the accusedappellants to seize and take possession of the vehicle on itsbehalf as the hirer had admittedly made default .in the regularpayment of rentals and the Company had determined the hiringin accordance with the terms of the hire-purchase agreement.The accused were carrying out the instructions of the Companyand consequently the intention of the Company must beattributed to the appellants and hence the appellants when theytook the vehicle for and on behalf of the Finance Companywere acting in the assertion or exercise of a bona fide claim orright in the Company. In view of the fact that it cannot besaid that the accused appellants acted dishonestly in takingpossession of the hired vehicle, the accused are entitled to anacquittal. Since there was no charge of using “ criminal force ”it is not necessary to consider whether the accused appellantsare guilty of using criminal force.
Since this is a criminal case and, as bona fide claim of right issufficient, whatever the merit in law of that right be, to meetthe charge of theft, I do not propose to make any pronouncementon the arguments addressed to us as to what extent a clauserelating to parate execution is countenanced by our law. I wouldreserve consideration of this vexed question for an appropriateoccasion.
Appeal allowed.