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GUNASEKERA v. SOLOMON et al.
NLR25V474
Present: Bertram C.J.
GUNASEKERA v. SOLOMON et al.
682-P. C. Matara, 29,021.
Theft-Intention to cause annoyance to complainant-Larceny-Difference
between English law and the Penal Code-First offenders-Sentence
of imprisonment inappropriate.
Where accused having an intention not of stealing but only of causing annoyance
or " injury " to the complainant drove away his cart and bull.
Held, in the circumstances that he was not guilty of theft.
BERTRAM C.J.-"_I do not think that there is any substantial difference between
the English law of larceny and the Ceylon law of theft so far as this class of
case is concerned. The English law draws a distinction between trespass and
larceny. Many acts are acts of unlawful trespass which nevertheless cannot be
considered as crimes."
The policy of the law is that first offenders should so far as possible should
not be sent to jail."
H. J. C. Pereira, K.C. (with him Wijeysekere), for the appellants.
12. L. Pereira, for the respondent
December 12,1923. BERTRAM C.J.-
I have every sympathy with the learned Magistrate's desire to enforce order in
Ms district, and every respect for his opinion that a sentence of imprisonment
in cases like this is the best means of
enforcing order. On the other hand, I do not think that he has applied his mind
to the legal question which the case involves. Despite the refined expositions
which one may discover in text-books on the subject, I do not think that there
is any substantial difference between the English law of larceny and the Ceylon
law of theft so far as this class of case is concerned. The English law draws a
distinction between trespass and larceny. Many acts are acts of unlawful
trespass which nevertheless cannot be considered as crimes. There is a case
cited (R. v. Philipps[1 11 East 662.]), where some men at night broke into a stable, took out
the horses, and drove them for thirty miles, left them at an inn, and went on
their journey. That was held to be a case of trespass and not of theft. There is
an Indian case which is very much on all fours with the present. I refer to the
case of Nabi Babsh v. Queen Empress. [ 2 I. L. R. Cal. XXV., 416.] There the Court said-
" To constitute theft there must be an intention to take the thing in question
dishonestly, that is, with intent to cause wrongful gain or wrongful loss, and
can it be said that removing a box ' to put the owner to trouble ' is
necessarily and in every case causing ' wrongful loss ? ' The answer must, we
think, be in the negative. No doubt the language of section 23 of the Indian
Penal Code which defines wrongful loss, and says a ' person is said to lose
wrongfully when such person is wrongfully kept out of any property as well as
when such person is wrongfully deprived of property,' might at first sight seem
to create a difficulty in the way of accepting the view we take. But the
difficulty is only apparent and not real. Of course, when the owner is kept out
of possession with the object of depriving him of the benefit arising from the
possession even temporarily, the case will come within the definition. But where
the owner is kept out of possession temporarily not with any such intention, but
only with the object of causing him trouble in the sense of moral anxiety, and
with the ultimate intention of restoring the thing to him without exacting or
expecting any recompense, it is difficult to say that the detention amounts to
causing wrongful loss in any sense."
In this case the Magistrate says that there can be no doubt that the accused
were not bent so much on stealing the bull and half cart as on causing annoyance
or injury to the complainant by their driving away the cart and bull. The injury
there referred to is not an injury in the nature of wrongful loss. It is clear
that this was an act of trespass of a malicious nature done with the object of
causing annoyance, and I do not think that it ca
