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Present: Drieberg J.PER1ES «. ANDERSON.
591—.P. C. Chilaw, 1,928.
Arrest—Retention of stolen property—Cognizable offence—Criminal
Procedure Code, s. 25.
A salesman in a boutique to whom a 25-cent piece was givenfor the purchase of cigarettes by a chauffeur, employed by theappellant, denied the receipt of the money. Immediately after,on being questioned by the appellant, the salesman pointed to a25-cent coin as it lay on the floor of the boutique: This explanationwas not accepted by the appellant, who found the 25-cent piece,which he had given his chauffeur, in a drawer. The appellant usedsome degree of force on the salesman in taking him in the PoliceStation.
Held that, under the circumstances, the salesman was notguilty of dishonest retention of stolen property and that theaction of the appellant in removing him to the Police Station wasunlawful.
Held also, that a person who commits dishonest misappro-priation of property cannot be convicted of dishonest retentionof the property misappropriated, where there was no appreciableinterval of time between the commission of the dishonest mis-appropriation and the manifestation of his intent to retain dis-honestly the property, which he so misappropriated.
PPEAL from a conviction by the Police Magistrate of Chilaw.The facts appear from the judgment.
H. V. Perera (with Croos-Dabrera), for accused, appellant.Hayley, K.C. (with L. A. Rajapakse), for complainant, respondent.
October 12,1928. Drieberg J.—
The appellant has been convicted of using criminal force on.Torolis, a salesman in the boutique of the respondent, and sentencedto pay a fine of Rs. 10.
The Police Magistrate has accepted for the purposes of thiscase what the appellant was told by his chauffeur Yoosoof and thatthe appellant honestly believed in the truth of those facts.
The appellant halted his car near the respondent’s boutiqueand sent Yoosoof there with a 25-cent piece to buy some cigarettes.The appellant says that the particular coin he gave was muchblackened and discoloured and readily recognizable. Yoosooftook the money to the boutique, placed it on a table, and askedfor cigarettes ; he sa^s that the coin rolled into the drawer, but that
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Jorolis denied the receipt of the money and refused him the1929.
cigarettes. Yosoof then went back to the car and related this
to the appellant who then entered the boutique and asked Jorolis
“ Where is the 25 cents which I sent by my driver for the cigarettes V Peries ».Jorolis then pointed to a 25-cent piece on the floor and said “ Here Andertonis your 25 cents, Sir.” The appellant then asked him why he didnot call out to the car and let him know that he had found themoney and ordered Jorolis to pick the coin up. Jorolis refused,and on the appellant himself picking up the coin he found thatit was not the particular coin given to Yoosoof. He then compelledJorolis to open the drawer of the table and there he found thevery coin which he had given Yoosoof. The appellant then usedsome degree of force or compulsion in taking Jorolis to the PoliceStation, and this is the offence with which he is charged.
The appellant can justify his action only under section 35 ofthe Criminal Procedure Code, that is, he must show that Joroliscommitted a cognizable offence in his presence.
Now, I do not think that the offence committed by Jorolis, ifYoosoof’s evidence be true, was theft. There was no takingof the property from Yoosoof; Yoosoof gave him the money,and there was nothing dishonest in the manner in which he acquiredpossession of it, but the dishonesty occurred when he denied thereceipt of the money. His offence therefore was dishonest mis-appropriation of property, an offence punishable under section 386of the Penal Code. Now this offence is non-cognizable, and thecommission of it in respect of the appellant’s property would notgive him a right of arrest even if it had been committed in hispresence.
Mr. H. V. Perera- has argued that at the time when the appellantwent up to Jorolis the offence which the latter was committingand which he continued to commit in the presence of the appellantwas that of dishonestly retaining stolen property, an offencepunishable under section 394 of the Penal Code. This offence iscognizable, and would justify the arrest of Jorolis by the appellant ifit was committed in his presence.
Mr. Hayloy argued with reference to some English cases thatit was not possible for a person to commit the offence of dishonestlyreceiving stolen property in respect of property which he had him-self stolen. Section 95 of the Larceny Act of 1861 makes it anoffence, for anyone to receive property known to be stolen, but doesnot so far as I can see bring in the word “ retain ” which we have-in our Code and the Indian Code.
It must be allowed that it is possible for the actual thief to becharged and convicted of dishonest retention of property. Author-ity for this will be found in the case of The Empress v. Sunker Gape A
» (1880) 6 Cal. 307.
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3>bebberu J •
In that case cattle were stolen in Nepal and the accused was chargedand convicted of dishonest retention of the cattle within Britishterritory, A conviction could not have been maintained in a Courtin British India on the charge of theft in the kingdom of Nepal.
In that case the theft and the retention with which the accusedwas charged were acts separated by intervals of time and space.
In the present case there was no appreciable interval of timebetween the first manifestation of the dishonest intent, which wasthe denial of the receipt of the coin from Yoosoof, and the entryof the appellant into the boutique.
Intention is not a momentary phase of the mind but is a con-tinuing one. It would appear that Jorolis had repented of hisintention for he surrendered to the appellant the 25 cents. I donot think it could be said that during this short interval’ of timeduring which his intention was getting clear and fixed, his offencecould bo said to have developed into what might be regarded asthe later stage, viz., a retention of property known to be stolen!Stolen property would include, of course, property which has beenacquired by dishonest misappropriation.
In the view which I have taken it is not necessary to deal withthe point taken by Mr. Perera, which was that the offence continuedafter Jorolis had made available to the appellant another 25-centpiece. It appears to me that the appellant claimed no specialright of property in this particular 25-cent coin and that his onlyreason for insisting on its production was to have proof available ofthe fraud committed on Yoosoof.
No cognizable offence having been committed by Joroli3 in thepresence of the appellant, the appellant was rightly convictedand I dismiss his appeal.
PERIES v. ANDERSON