1944 Present : Wijeyewardene J.

RAMALINGAM,

Appellant, and NAIR, Respondent.

862-M.C., Point Pedro, 3,748.

Theft-Wrongful gain and wrongful loss-Unlawfully keeping a person entitled to property out of its possession-Penal Code, s.22.

The accused was the member of a Maha Jana Sabha the object of which was to prevent the members of his caste from working in the fields of the Vellala caste. The complainant, who was not a member of the Sabha worked in the fields of a Vellala man, whereupon the accused and some others went to the house of the complainant and ordered him to pay a fine of Rs.25. When the complainant refused to make the payment, the accused entered his house, took Rs.25 from a box and went away.

Held, that the accused was guilty of theft, as he took the money by unlawful means with the intention of keeping the person entitled to it out of its possession.

APPEAL 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 sentenced to 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 Vinasitamby from whose possession the money was taken. The accused and Vinasitamby live at Uduthurai where a Maha Jana sabha was formed, composed of members of their caste. One of the objects of the Sabha was to prevent members of that caste from cultivating the fields of the Vellalas. The accused was a member of the Sabha, but not Vinasitamby. In March last Vinasitamby worked the field of a Vellala man. Shortly afterwards, the accused went to the house of Vinasitamby with four others, one of whom questioned Vinasitamby why he worked for a Vellala man. Vinasitamby replied that he did not want the permission of anyone to do such work, when those who accompanied the accused "dragged (Vinasitamby to go to the Committee of the Maha Jana Sabha". Vinasitamby refused to go and "lay on the ground." The accused, thereupon, ordered Vinasitamby to pay a "fine" of Rs.25 to the Sabha. When Vinasitamby

refused to make the payment, accused entered the house of Vinasitamby and took Rs.25 out of a box and went away saying " I am taking Rs.25 and you can do what you like".

The Magistrate has found the facts, as stated above, proved by the evidence of Vinasitamby and his witnesses. That evidence stands uncontradicted, as no evidence was called by the defense. I see no reason to interfere with the Magistrate's finding on the facts.

The Counsel for the accused argued in appeal that a charge of theft was not maintainable on those facts and relied on Ponnu v. Sinnatambi et al. [1 (1922) 24 N.L.R.248.] and Gunasekera v. Soloman et al.[2 (1923)-25 N.L.R. 474.] The Crown Counsel submitted that, in any event, the accused could have been convicted of criminal misappropriation and invited my attention to Haniffa v. Salim [3 (1938) 39 N.L.R. 348].

I would approach the consideration of this question of law by examining the relevant provisions of the Penal Code without the aid of the decisions cited by Counsel. Section 366 enacts-

"Whoever, intending to take dishonestly any movable property out 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 necessary and sufficient to constitute the offence of theft. They are-

(1) Dishonest intention to take property;

(2) The property being movable property;

(3) The taking out of the possession of another person;

(4) The taking being without the consent of the person in possession

(5) The removal of the property in order to accomplish the taking of it.

It is not disputed that the last four elements mentioned ab