P K MOHAMMED YUSUF ROWTHER Vs. ABDUL RAZACK

JUDGEMENT

(1.) BEFORE proceeding to the facts of this criminal revision which involves a question I shall briefly refer to the legal principles which might be fairly characterised as applicable which might be fairly characterised as applicable to the facts. To constitute an offence of theft under S. 379 I. P. C. , there must be a taking, with dishonest intention, of moveable property from the possession of another person, without the consent of that person. Now, intention is a state of mind, and direct proof of it may be impossible in most cases, it will have to be an inference of fact, from the entire complex of circumstances. Courts appear to have expressed variant views on the question whether, when the creditor seizes some moveable property of his debtor, without the consent of that debtor as an attempt to obtain security for the debt, such act of the creditor will amount to theft, or only to an illegal seizure of property, which may be a tort or civil wrong justifying an action in damages. In Adimoola Mudaliar v. State, 1960 Mad WN Cri, 48: (AIR 1960 Mad 186), I had occasion to consider a somewhat analogous situation, where a lessee from a municipality, entitled to collect rents for temporary stalls, removed certain planks in a protection as a mode of enforcing payment of the rent due. After making reference to two decisions respectively of the Calcutta and Patna high Courts, which need not be now discussed, I came to the conclusion, on the facts of that case, that that revision petitioner did not have the dishonest intention to cause wrongful loss to the owner of the property or to obtain wrongful gain for himself. The revision was allowed, and the revision petitioner was acquitted of theft.

(2.) LEARNED counsel for the present revision petitioner and the learned Public prosecutor have both referred to several decisions of courts and that are now available upon this interesting question. In Srinivasalu Reddiar v. Govinda goundan, AIR 1923 Mad 239 Schwabe C. J. held that the taking of property under a colour of right, or in exercise of a bona fide claim of right, though the claim itself might be legally invalid, would not amount to theft; it was the state of mind of the offender or the element of mens rea which properly determined the question whether the act was a criminal offence or theft or merely a tort or civil wrong. In ganeshmal Sait v. King, 1948 Mad WN Cri, 73, Govinda Menon J. was concern with an offence under S. 384 I. P. C. and the learned judge emphasised the element of an intention to cause wrongful loss which should be present, before a conviction for the criminal offence could be sustained.

(3.) THERE is, admittedly, a stream of the case-law taking a somewhat different view on the mode in which legal principles should be applied to a situation of this kind. I may be applied to a situation of this kind. I may instance the Full Bench decision in Queen Empress v. Sri Churn Chungi, ILR 22 Cal 1017 where a creditor took certain moveable property without the consent of the debtor, form the possession of the latter, with the intention of obtaining security by coercion, his act was held to amount to the offence of theft as defined in the Penal Code.