010-NLR-NLR-V-74-R.-V.-RANASINGHE-Appellant-and-B.-WIJENDRA-Inspector-of-Police-Respondent.pdf
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Ranasinghe v. Wijendra
1970Present: Weeramantry, J.
R. V. RANASINGHE, Appellant, and B. WIJENDRA(Inspector of Police), Respondent
S. C. 333170—J. M. G. Colombo, 44232
Penal Cotlc—Section 3SG—Offence of criminal misappropriation—Taking of properly
from another person—Requirement that it should be initially innocent.
A person who, at tho timo ho takes over property from the possession ofanother person, already entertains a guilty stnto of mind is not liable to boconvicted of tho offonco of criminal misappropriation under section 3SG of thoPonal Code.
Tho accused-appollant, who was a participant in a schemo of fraud with anunknown person in order to cheat a third party S, rocoived a sum of Rs. 20from S so that lto could dolivor it to tho unknown person in pursuanco of thosehemo.
Held, that tho accused was not liablo to bo convicted of criminallymisappropriating tho money, inasmuch as ho took it initially from S with aguilty mind.
Attorney-General v. Menthis (61 N L. R. 5CI) distinguished.
Appeal from a judgment of the Joint Magistrate’s Court, Colombo.P. Ramanalhan, for the accused-appellant.
T.Wichrernasinghe, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
WEER AMANTR Y, J.—Uunasinglie t!. Wijendra
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October 9, 1970. Weebamaxtby, J.—
The accused-appellant in this case has been charged on two counts.On the first count he is charged with having aided and abetted anunknown person to deceive one Somapala by falsely representing to himthat that person was in possession of three cartons of cigarettes availablefor sale and that he (the unknown person) was at Ceylinco building withthe cigarettes, thereby dishonestly or fraudulently inducing Somapalato deliver to the accused a sum of Rs. 20/-, an offence punishable undersection 403 of the Penal Code.
On the second count he was charged with dishonestly misappropriatingthis sum of Rs. 20/- belonging to Somapala thereby committing anoffence punishable under section 3S6.
Somapala, whose evidence has been accepted by the learned Magistrate,has stated that on the day in question a person whom he. had knownearlier told him that he could buy cigarettes at a reduced rate throughthe account of a person who was running a canteen and suggested thatSomapala should give him some money with which cigarettes could beso purchased for Somapala. Acting on this representation Somapalaborrowed Rs. 20/- and took it to the Ceylinco building where that personbrought the accused to him. The accused at that time had a parcel inhis hand. The accused gave him the parcel and Somapala gave theaccused a sum of Rs. 20/- consisting of two ten rupee notes. Somapalatook the parcel away and on opening it, found it to contain cardboardboxes filled with pieces of paper.
The position of the accused was that he had met one Perera at Cej'linco .House and that Perera had given him a parcel to hold it for a while. Howaited for about five minutes holding the parcel and then Perera askedfor the parcel and handed the parcel to Somapala. He denied anyknowledge of the fraud.
It is difficult to understand why the accused who was according to hisown evidence a businessman earning an income of Rs. 400/- per monthfrom the sale of stationery, should waste his time holding a parcel forPerera not knowing what it contained or the nature of the transaction.The learned Magistrate has quite rightly accepted the version’of theprosecution and rejected the accused’s story.
The only question which arises for consideration upon this appeal is aquestion of law raised in regard to the second count. It is submittedthat the charge of misappropriation cannot be maintained upon thesefacts inasmuch as misappropriation presupposes an initial innocenttaking with a guilty state of mind following only thereafter. Uponthe facts of this case on the other hand it seems clear that at thetime the accused received the sum of Rs. 20/- he was already a guiltyparticipant in the scheme of fraud.
There are conflicting authorities on .this point.
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WEERAMANTRY, J.—Ranasinghe v. Wijendra
In 1902 Middleton J. held1 that before there could be a convictionunder section 3S6 of the Penal Code there must first be an honest possessionof the property and then a subsequent change of intention. This viewwas repeated in 1911 by Pereira J.2 who observed that there could be nocriminal misappropriation unless the possession of the thing alleged tohave been appropriated was come by innocently and retained by asubsequent change of intention. For many years thereafter thecorrectness of this view of the law would ajipear to have been assumed,for we sec that in I960 Sinnetamby J. with whom Weerasoorij-a J.agreed, stated that to constitute misappropriation the authorities seem tosuggest that there must be an initial honest possession followed by adishonest conversion.3 It was not necessary however for the purposesof that case to consider this question further. However, Sinnetamby J.sitting alone in a case decided a week later, went into the matter insomewhat greater detail and concluded that in order to constitute criminalmisappropriation of property it was not necessary that there should be aninitial innocent taking followed by a subsequent dishonest ehango ofintention.4 He held that if the initial taking of the property was itselfdishonest, then too the offence was made out.
The case before Sinnetamby J. was a case of the misappropriation ofcattle which according to the facts as found by the Magistrate had beenlet loose by the herdsman to whom they had been entrusted by the owner.At the time they were taken by the accused they were grazing on pastureland at 10.45 p.m. and Sinnetamby J. observed that the cattle may wellhave strayed at the time they were taken possession of by the accused.They could not therefore-be said to have been in the possession of theherdsman at the time the accused took them, for there was nothing to showthat the pasture land was enclosed or was under the control of the herdsmanor was cve.il the private property of the owner or the herdsman.Consequently this was a ease where the cattle had not been taken fromthe possession of any person and what Sinnetamby J. held was that“ if the initial taking of the property not in the possession of anyone isdishonest then too the offence of criminal misappropriation is madeout ”.
The present case is not a case where the sum of Rs. 20/- was not in thepossession of an3'one at the time it was taken. The judgment ofSinnetamby J. does not therefore assist us in deciding a case such as thepresent. Where, as in the. present case, a person at the time he takesover property from another already entertains a guilty state of mind, thoquestion still arises whether tho offence of criminal misappropriation iscommitted at all. Other offences such as theft or cheating may well becommitted in such circumstances, and in accordance with tho principles
Qeorgesy v. Scyado Saibo {1002) 3 Browne SS.
Kanavadipiltat v. Kos watte {1914) 4 Bat. A". 74.
3 Graticn Perera v. The Queen (1060) 61 N. L. It. 522.
Attorney-General v. iMenthis (I960) 61 N. L. Ii. 561.
WEERAMAXTRY, J.—Ranasinghe v. Wijcndra
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accepted and assumed in our case law until the decision in Altorney-General v. Menlhis, I would incline to the view that one of such offencesrather than the offence of criminal misappropriation is the offencecommitted in this case.
It would appear that the offence of dishonest misappropriation ofproperty was created in our Penal Code by way of a conscious departurefrom the principles then prevalent under the English criminal law.Dishonest misappropriation was a new offence which, as Gour observes1,was carved out of theft, and laid down a rule at variance with the Englishlaw which looks only to the intention at the time the property is obtained2.Under English law an innocent taking followed by conversion consequenton a subsequent change of intention did not fall within the ambit of theoffence of Jarccny. Moreover, according to the English law if the originalintention was innocent a subsequent dishonesty would be insufficientto convert the legal possession into an illegal one so as to attract evenany other head of penal liability.If the case was notone of guilty taking
initially, it was regarded as one of non-criminality—that is the actconstituted either a theft or was not punishable criminally at all and wasa purely civil wrong.8 Jn the words of Kenny 4: " Under the ancientprinciple a taking could not be larceny if the intention to steal was notformed until later. ”
The English law ran into a degree of confusion in consequence of thefact that taking meant the acquisition of possession, for it becameentangled in the complex question of what constitutes legal possession.The inconsistencies resulting from this position are illustrated by Kennywho refers to a number of cases where seemingly opposed decisions werereached owing to the difficult legal questions involved in determiningwhether there was there an innocent acquisition of possession. Forexample in Cart aright v. Greene5 the purchaser at an auction of a bureauwhich, unknown to both vendor and purchaser, contained money in asecret drawer was held to have obtained legal possession of the money,but forty years later in j)Jerry v. Greene <0 Genes0 a purchaser at an auctionof a bureau was treated as not acquiring possession of the money discoveredin a secret drawer.
There were several similar conflicts leading to a somewhat bewilderingstate of the law. Indeed the resulting anomalies in the English lawwere so great that they have not in fact been fully corrected, as■ Sinnetamby J. points out in Attorney General v. Menlhis, even by theLarceny Act of 1916. In Attorney General v. Menlhis reference is madeto the English case of Maynes v. Cooper 7 as exporing the unsatisfactory
1 Indian Penal Code, Slh ed. Vol. 4, p. 2S24.
Ibid p. 2S25 ; Patanlal <£■ Thakore, Law oj Crimes, 20th ed., p. 1024.
‘ Ratanlal & Thakore, ibid ; Gour, Indian Penal Code, Slh ed., Vol. 4, p. 2S25.
1 19th ed., s. 2S9.« (1841) 10 L. J. M. C. 154.
(1S02) S Ves. 405.’ '.1956) 1 All E. R. 450.
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WEER AMAXTRY, J.—Eanasinghe v. Wijendra
state of the English law even at this date. In that case the recipient of anextra sum of money which had somehow found its way into his paypacket appropriated it upon subsequently forming a dishonest intention.It was held however that the offence of larceny had not been committedand much academic discussion followed upon that decision. Indeedsuch cases were condemned as a 2>ublic scandal because the Courts werereluctantly compelled to allow dishonesty to go unpunished.1
It is not unreasonable to infer that the deliberate departure from theprinciples of English law, represented by the creation of this offence ofcriminal misappropriation, was the result of a consciousness of theinadequacy of the existing English law and the existence of a lacuna inregard to cases of innocent taking followed by a subsequent dishonestintention. Such inconsistencies as those revealed by Cartwright v. Greeneand Merry v. Greene & Dewes must also have been known at the time theIndian Penal Code was presented to the Legislative Council in 1850 andpassed in 1860, and certainly long before our Penal Code was passed in1SS3. All these considerations would serve to indicate that the offencecontemplated by section 386 was one of innocent taking followed by asubsequent dishonest intention, the case of an initial dishonest takinghaving already been provided for by the offence of theft.
This indeed would appear to be the understanding of this offence inIndia as well. Thus Batanlal & Thakore 2 begin their comment on thissection with the observation that “ criminal misappropriation takesplace when the possession has been innocently come by, but where, bya subsequent change of intention, or from the knowledge of some newfact with which the party was not previously acquainted, the retainingbecomes wiongful and fraudulent. The offence consists in the dishonestmisappropriation or conversion, either permanently or for a time, ofproperty which is already without wrong in the possession of theoffenderThe authors go on to point out that in this respect the PenalCode is at variance with the English law according to which theintention of the accused only at the time of obtaining possession is takeninto account.
So also the original texts of the Penal Law of India by Sir Hari SinghGour himself would appear to draw this distinction. It is there stated3:
“ The question whether the act is theft or misappropriation dependsupon when the dishonesty began—was it before or after the thing came intopossession. This is a point of division as much between the two offencesof theft and criminal misappropriation in the Code, as between criminal’misappropriation and a civil wrong under English law.” This absenceof wrongful initial taking is sti'csscd again4 for he observes in a laterpassage that in theft the initial taking is wrongful but in criminalmisappropriation it is indifferent and may oven be innocent but becomeswrongful by a subsequent change of intention or from knowledge of some
1 See (1050) 72 L. Q. E. at 1S3.3 5th ed. p. 1345, s. 4712.
* Law of Cri r.ts, 20th cd. p. 1023.* Ibid, s. 4713.
JaJJcrjce v. Pcrcra
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new fact with which the part}' was not previously acquainted. Theword “indifferent” in this passage would appear to refer to a neutralstate of mind—that is where the doer lias not affirmatively formed awrongful intention at the time of taking.
Later editions of this celebrated work by other editors seem to departhowever from the view of the distinguished author, for the Sth editionstates1 that it is difficult to say that misappropriation cannot becommitted if the accused had a dishonest intention at the moment oftaking possession of the article. I would prefer on this point to followthe view expressed by Sir Hari Singh Gour himself.
It is my view upon a review of all the authorities that in the case of acharge of criminal misappropriation where the property is taken from thepossession of another, such initial taking must be innocent., for this is thefeature which marks out this offence from the offence of theft and otheroffences which may be committed. To view this matter otherwise mayresult in obscuring the line of demarcation between criminal misappropria-tion and such offences as theft and cheating. In the present case sincethe initial taking was with a guilty mind I consider that the offence ofcriminal misappropriation has not been made out and I therefore setaside the conviction on this count. The fine of Its. 50/-or three weeksrigorous imprisonment on count one will stand and so also will the termof one year’s rigorous imprisonment under the Prevention of CrimesOrdinance.
Conviction on 1 st count affirmed.
Conviction on 2 nd count set aside.