Attorney-General V. Menthis

1960 Present: Sinnetamby, J.

ATTORNEY -GENERAL, Appellant, and B. MENTHIS, Respondent

S. C. 678-M. C. Hambantota, 33,204

    Criminal misappropriation-Ingredients of offence-Must there be an initial innocent taking ?-Theft-Penal Code, 88. 366, 386-Evidence Ordinance, s. 114 (a).

In order to constitute criminal misappropriation of property it is not necessary that there should be an initial innocent taking followed by a subsequent dishonest change of intention. If the initial taking of the property not in the 1 possession of any person is itself dishonest, then too the offence is made out.

Two bulls belonging to S were let loose by his herdsman for grazing on a pasture land. The accused was subsequently found at 10.45 p.m. driving the bulls away from the pasture land at a distance of It miles in circumstances showing that the accused intended to take the bulls for his own use, to the detriment of the owner.

Held, that the accused was guilty of criminal misappropriation and not of theft.

APPEAL from a judgment of the Magistrate's Court, Hambantota.

V. S. A. Pullenayegum, Crown Counsel, for the complainant-appellant.

M. M. Kumarakulasingham, for the accused-respondent.

Cur. adv. vult.

March 14, 1960. SINNETAMBY, J.-

The accused in this case was charged with dishonest misappropriation --of two bulls valued at Rs.150/- property belonging to one S. P. Samichiappu, an offence made punishable under Section 386 of the Penal Code.

At the conclusion of the trial; the Magistrate took the view that the offence established by the evidence was not criminal misappropriation but theft and he accordingly acquitted the accused. Against this finding, the Attorney General has appealed.

The facts as found by the Magistrate are as follows :-The two bulls in question belonged to one Samichiappu and they were given to his herdsman who let the animals for grazing. The animals were let loose on the pastureland called Madawinna which Samichiappu describes as " my pasture land ". The accused was found driving the two head of cattle by the police and the Village Headman about 1i miles away from Madawinna at a place called Nonagama. This incident occurred at about 10.45 p.m., in the night. The fact that the accused was driving the cattle away from the pastureland at a distance of Ii miles shows that the accused was at that time intending to take the animals to some place which certainly was not the owners. One does not ordinarily expect a person at 10.45 p.m. to drive cattle, which are not his, unless he intended to take them for his own use, to the detriment of the owner. The learned Magistrate while holding on the facts with the Crown and while rejecting the defence put forward by the accused came to the conclusion that, on the facts, the charge of criminal misappropriation was not made out.

In order to constitute criminal misappropriation, the Magistrate held, there must be an innocent taking followed by a subsequent dishonest '" change of intention. He also states that there is no proof of any overt act indicating that the accused had converted or appropriated the animals to his own use. I think it must be conceded that the nature of the overt act required to constitute conversion depends on the article converted. If one finds an article which is in common daily use, has no identifying marks, can easily be carried on one's person, and takes it; then, in the absence of other evidence, the mere taking is not sufficient to indicate a conversion because it may be a neutral act consistent with an innocent taking with a view to returning it to the lawful owner: but, if the property is of a kind that cannot be easily carried on one's person, and is capable of being easily identified, as in this case, by the brand marks; then, driving it away from where it is kept normally, after dark, must. surely indicate that the intentions of the alleged offender are not honest. Wh

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