WIJE YE WAEDENE J.—Ramalingam and Hair.
1944Present: Wijeyewardene J.RAMALINGAM, Appellant, and NAIR, Respondent.
862—M. C., Point Pedro, 3,748.
Theft-—Wrongfulgain and wrongfulloss—Unlawfullykeeping a person
entitled to property out of its possession—Penal Code, s. 22.
The accused was the member of aMahaJana Sabhatheobjectof
which was to prevent the members of his caste from working in the fields ofthe Vellala caste. The complainant, who was not a member of the Sabhaworked in the fields of a Vellala man, whereupon the accused and someothers went to the house of the complainantand orderedhimto paya
fine of Es. 25. When^ the complainant refused to make the payment,the accused entered his house, took Ks. 25 from a box and went away.
Held, that the accused was guilty oftheft,as he tookthemoneyby
unlawful means with the intention ofkeepingthe personentitled toit
out of its possession.
A PPEAL from a conviction by the Magistrate of Point Pedro.
N. Nadarajah, K.C. (with him H. Wanigatunge), for the accused,appellant.
G. P. A. Silva, C.C., for the Crown, respondent.
Cur. adv. vult.
October 25^ 1944. Wijeyewardene J.—
The accused was convicted on a charge of theft of Rs. 25 and sentencedto undergo one month’s simple imprisonment and pay a fine of Rs. 75.
The accused is married to a daughter of a step-brother of Vinasitambyfrom whose possession the money was taken. The accused and Vinasi-tamby live at Uduthurai where a Maha Jana Sabha was formed, composedof members of their caste. One of the objects of the Sabha was to preventmembers of that caste from cultivating the fields of the Vellalas. Theaccused was a member of the Sabha, but not Vinasitamby. In March lastVinasitamby worked the field of a Vellala man. Shortly afterwards, theaccused went to the house of Vinasitamby with four others, one of whomquestioned Vinasitamby why he worked for a Vellala man. Vinasi-tamby replied that he did not want the permission of anyone to do suchwork, when those who accompanied the accused “ dragged (Vinasitamby)to go to the Committee of the Maha Jana Sabha ”. Vinasitamby refusedto go and “ lay on the ground The accused, thereupon, orderedVinasitamby to pay a “ fine ” of Rs. 25 to the Sabha. . When Vinasitambv
WTJEYEWAUDENE J.—Ramalingam and Nair.
refused to make the payment, accused entered the house of Vinasitambyand took Rs. 25 out of a box and went away saying “ I am taking Rs. 25and you can do what you like
The Magistrate has found the facts, as stated above, proved by theevidence of Vinasitamby and his witnesses. That evidence standsuncontradicted, as no evidence was called by the defence. I see noreason to interfere with the Magistrate’s finding on the facts.
The Counsel for the accused argued in appeal that a charge of theftwas not maintainable on those facts and relied on Ponnu v. Sinnatambiet al.1 and Gunasekera v. Solomon et al2. The Crown Counsel submittedthat, in any event, the accused could have been convicted of criminalmisappropriation and invited my attention to Haniffa v. Salim 3.
I would approach the consideration of this question of law by examiningthe relevant provisions of the Penal Code without the aid of the decisionscited by Counsel. Section 366 enacts—
“ Whoever, intending to take dishonestly any movable propertyout of the possession of any person without that person’s consent,moves that property in order to such taking, is said to commit theft ”.According to that definition there are five elements which are necessaryand sufficient to constitute the offence of theft. They are—
Dishonest intention to take property;
The property being movable property;
The taking out of the possession of another person;
The taking being without the consent of the person in possession;
The removal of the property in order to accomplish the taking of it.
It is not disputed that the last four elements mentioned above arepresent in this case. The only question is whether the accused had adishonest intention. The answer to this question involves a considera-tion of sections 21 and 22 of the Code.
Section 22 defines “ dishonestly ” in terms of “ wrongful gain ” and“ wrongful loss ” while sub-sections 1 and 2 of section 21 define “ wrong-ful ” and sub-sections 3 and 4 define “ gain ” and “ loss ” occurring in“ wrongful gain ” and “ wrongful loss ”.
Section 22 reads—
“ Whoever does anything with the intention of causing wrongfulgain to one person, or wrongful loss to another person, is said to do thatthing dishonestly ”.
Section 21 reads—
“ Wrongful gain is gain by unlawful means of property to which
the person gaining is not legally entitled ”.
“ Wrongful loss is the loss by unlawful means of property to
which the person losing it is legally entitled
“A person is said to gain wrongfully when such person retainswrongfully, as well as when such person acquires ■wrongfully
“A person is said to lose wrongfully when such person is wrong-fully kept out of any property as well as when such person is wrong-fully deprived of property ”.
‘ (1922) 2d N. L. R. 248.2 (1923) 25 N. L. R. 474.
(1938) 39 N. L. R. 348.
WIJEYE VVARDENE J.—Ramalingam and Nair.
It follows from sections 21 and 22 that a person acts dishonestly,■if he takes property by unlawful means with the intention of retaining itor with the intention of heeding the person entitled to it out of its posses-sion. It is not necessary that such person should have an intention ofacquiring the property or of depriving the other person of it.
Now, in this case, Vinasitamby was not a member of the Maha Jana.Sabha and was not, therefore, bound by the rules of that Sabha. TheSabha had no right—and much less the accused as an individual member—to call upon the complainant to defend himself before a meeting of the•Sabha or to impose a fine on him. It does not matter even if the intentionof the. accused was not to derive some personal benefit from his act.The «“ fine ” was clearly illegal and the accused could have had no doubtabout it. The cases cited by the Counsel for the* accused may be dis-tinguished from the present case on that ground. In Ponnu v. Sinna-iambi et al. (supra) the accused removed some animals from the possessionof the complainant in order to compel the payment of a sum that wasjustly due. In GunaseTtera v. Solomon et al. (supra) it was found that theaccused acted only “ with. the object of causing annoyance ” to the■complainant and not with the object of causing “ an injury in the natureof wrongful loss ”. Even if it be assumed, as contended for by accused’sCounsel—though the evidence does not warrant such an assumption—-that the accused did not intend to appropriate the money but only toTetain it in order to compel Vinasitamby to stand his trial before theMaha Jana Sabha, the accused had a dishonest intention in taking themoney, according to the interpretation I place on sections 21 and 22of the Penal Code.
That interpretation is in accordance with the view taken by the HighCourts of Allahabad, Bombay and Madras with regard to the correspond-ing sections of the Indian Penal Code. The interpretation suggested byaccused’s Counsel was adopted by the High Court of Calcutta in ProsonnoKumar Patra v. Udoy Sant1 which was however overruled by a Bench ofEive Judges in Queen-Empress v. Sri Churn Chungo2. In that case,A, the husband of B, owed some money to C. On A’s death, B went toher brother I) taking with her two head of cattle that belonged to A.D was using the animals in ploughing a field when E, the servant of C,came and took away the animals forcibly to C. C detained one of theanimals and said he would release it when his debt was paid. E wascharged with theft and the High Court convicted him on that charge.In the course of his judgment Petheram C. J. said—
“It is evident that it was the intention of the Legislature that ifshould be theft under the Code, to take goods in order to keep the person■entitled to the -possession of them out of the possession of them for atime, although the taker did not intend to himself appropriate them,-or to entirely deprive the owner of them. This is precisely what acreditor does, who by force or otherwise takes the goods of his debtorout of his possession against his will in order to put pressure on himto compel him to discharge his debt; and it must follow that a person■who does so is guilty of theft within the provisions of the IndianPenal Code ’’.
1 (1895) I. L. R. 22 Calcutta 669.2 (1895) I. L. R. 22 Calcutta 1017.
Waidyaratne and Ambalavanar.
Pigot J. who delivered a separate judgment said—
“ We think that an intention on the part of the accused to use thepossession of the property when taken for the purpose of obtainingsatisfaction of a debt due to him, and only for that purpose, has nobearing on the question of dishonest intention under the Penal Code.To hold that such a purpose could render innocent what would beotherwise a wrongful gain within the meaning of section 23 wouldamount to the recognition of a right on the part of every individual torecover an alleged debt by the seizure of property of his alleged debtor,and would tend to a state of things in which every man might, ifstrong enough, take the law into his own hands
The judgment in Queen-Empress v. Sri Chum Chungo (supra} wasfollowed by the Lahore High Court in King-Emperor v. Bdkhtawar1 andby the Bombay High Court in King-Emperor v. Ganpat Krishnaji 2-
I uphold the conviction but alter the sentence passed by the Magistrate.X order the accused to pay a fine of Rs. 100 and to be detained in custodytill 4 p.m. on the day the sentence is pronounced in the Magistrate’sCourt. The accused will serve a term of one month’s rigorousimprisonment, if he fails to pay the fine.
RAMALINGAM, Appellant, and NAIR, Respondent