Property obtained by cheating can still be held to be stolen property if it is subsequently dishonestly taken out of the possession of the real owner, without his consent.

Headnote:
CRIMINAL APPEAL - THEFT - STOLEN PROPERTY - DEFINITION - PROPERTY OBTAINED BY CHEATING - WHETHER STOLEN PROPERTY - CRIMINAL MISAPPROPRIATION - ESSENTIAL ELEMENTS - POSSESSION OF STOLEN PROPERTY SOON AFTER THEFT - PRESUMPTION UNDER SECTION 114 ILLUSTRATION (A) OF THE INDIAN EVIDENCE ACT.
Fact of the Case:

The prosecution's case was that one Pokhraj Ghemaji sent a parcel containing fountain pens, etc., worth about Rs. 2900/- from Calcutta to his brother Bhavarlal Ghemaji in Bombay. Bhavarlal did not receive the parcel but received a list of the articles sent by his brother by ordinary post. Bhavarlal went to the luggage office at V. T. Station on 24-7-1961 and inquired about the package, which he was informed had arrived the previous day and had been duly delivered. Bhavarlal lodged a complaint with the railway authorities and a first information report was lodged on 25th July 1961. Investigation followed, and a major portion of the goods were taken charge of from accused No. 4, and five gross of refills were taken charge of from one Inayatalli. An identification parade was held on 6th August 1961, and the present appellant and three others were charge-sheeted. According to the prosecution, luggage-clerk at V. T. Railway Station, Mr. Prannath Girotra, delivered the package in question to accused Nos. 1 and 2, and one more person who is absconding. Accused No. 2 sold some of the goods contained in that package to accused No. 4, the present appellant; so also accused No. 3 sold some goods from that package to prosecution witness Inayatalli. The present appellant and three others were prosecuted.
Finding of the Court:

The court held that the property in question was stolen property, as defined by Section 410, I. P. C., and that accused No. 4 was guilty of dishonestly receiving stolen property under Section 411, I. P. C.
Issues: 1. Whether the property in question can be said to be stolen property, as defined by Section 410, I. P. C.? 2. Whether in all cases of criminal misappropriation the initial possession must be innocent, i.e., the person concerned cannot be convicted for such possession?
Ratio Decidendi: 1. The court held that the property in question was stolen property, as defined by Section 410, I. P. C., because it was dishonestly taken out of the possession of the real owner, without his consent. The court found that the goods were delivered to the accused by Prannath Girotra, who was in possession on behalf of the real owner, Pokhraj, under a misconception of facts, viz. the persons taking delivery were entitled to take it. The court held that this was a consent obtained by a false representation, which led to a misconception of facts, and therefore it was not a valid consent as contemplated under the Indian Penal Code. 2. The court held that it is not necessary in all cases of criminal misappropriation that the initial possession must be innocent. The court found that even if the property was initially obtained by cheating, it could still be held to be stolen property if it was subsequently dishonestly taken out of the possession of the real owner, without his consent.
Final Decision: The court dismissed the appeal and confirmed the order of conviction and sentence.

Judgment

Chitale, J.

1. This is a criminal appeal by accused No. 4 against the order of conviction and sentence passed against him under Section 411, I. P. C,

2. Prosecution, case briefly stated is as follows : One Pokhraj Ghemaji carries on business in fountain pens etc. at Calcutta. His brother Bhavarlal Gheuiaji carries on business in fountain pens etc. in Bombay. On 21-7-1961 Pokhraj purchased a half passenger ticket, and against that half passenger ticket booked a parcel containing fountain pens etc. of the value of about Rs. 2900/- with the Railway, and obtained a luggage receipt from the Railway in respect of that parcel. Pokhraj posted that luggage receipt to his brother Bhavarlal at Bombay. Bhavarlal did not receive that luggage receipt. According to the prosecution, Bhavarlal received a list of the articles sent by his brother Pokhraj by ordinary post in the evening of 23-7-1961. Bhavarlal went to the luggage office at V. T. Station on 24-7-1961, and there made inquiries about the package sent by Pokhraj from Calcutta. Bhavarlal was then informed that the package had arrived at the luggage office at V. T. Station on the previous day and that package had been duly delivered. Bhavarlal then lodged a complaint with the railway authorities. On the next day, i.e. on 25th July 1961, Bhavarlal lodged his first information report with the V. T. Railway Police. Investigation thereafter followed. A major portion of the goods were taken charge of from accused No. 4, and five gross of refills were taken charge of from one Inayatalli. An identification parade was held on 6th August 1961, find after completing the investigation of this case, the present appellant and three others were charge-sheeted. According to the prosecution, luggage-clerk at V. T. Railway Station, Mr. Prannath Girotra, delivered the package in question to accused Nos. 1 and 2, and one more person who is absconding. Accused No. 2 sold some of the goods contained in that package to accused No. 4, the present appellant; so also accused No. 3 sold some goods from that package to prosecution witness Inayatalli. The present appellant and three others were prosecuted.

The defence of the present appellant briefly stated is : He does not know as to who sent the goods in question to Bombay, and who took delivery of the same. He, however, admits that the wooden case, part of Ex. 7, was taken charge of by the police from his room. He further says that goods similar to the goods marked Ex. 7 were taken charge of by the police from his room. He also says that he had sold five gross of refills to accused No. 3 for Rs. 225/-, but he does not know whether accused No. 3 sold the same to Inayatalli. He admits that the refills shown to him, while recording his statement under S. 342, Cri. P. Code, were similar to the refills, which he sold to accused No. 3. He admits that at about 2-30 a.m. on 26th July 1961 Head-constable Tike took charge of the wooden, case along with fountain pens etc. from his room. He adds that the goods taken charge of from him were similar to Ex. 7. He further says that he did not know that the goods in question, Ex. 7, were stolen property. He says that he purchased the same from accused No. 1 for Rs. 2,600/-.

3. The learned trial Judge believed the evidence led by the prosecution to establish that the goods. Ex. 7, were stolen property, that soon after the theft they were found in possession of accused No. 4, and that accused No. 4 either knew or had reason to believe that the goods in his possession were stolen property. Hence he convicted him, i.e. accused No. 4, under Section 411, I. P. C., and sentenced him to rigorous imprisonment for two years. It is against this order of conviction and sentence that the present appeal is filed.

4. Mr. Dalai, who appears for the appellant-accused No. 4, contends that the property in question cannot be said to be stolen property, as defined by Section 410, I. P. C. and hence accused No. 4 cannot be convicted under Sectio

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