KARTIKESWAR ROY Vs. BANSIDHAR BYAS

JUDGEMENT

(1.) The petitioner has been convicted of theft, punishable Under Section 380, Indian Penal Code. The first ground on which this Rule has been granted is that the facts found are not sufficient in law to constitute the offence of theft.

(2.) The following are the principal facts found:--The petitioner entered into an agreement with the complainant's firm that they should advance him money up to ten thousand rupees on the hypothecation of goods to be deposited by him as security The goods hypothecated were deposited in a godown at 202, Darmahatta Street. Under the agreement the petitioner was entitled to take advances up to 70 per cent of the value of the goods and he actually took advances Up to Rs. 8,500. He also made payments from time to time amounting to Rs. 1,950 and goods of corresponding value were restored to him. On the 15 July the petitioner managed to secure somehow the key of the godown and removed the hypothecated goods which were there: and which were then in the possession of the complainant's firm.

(3.) It is contended on behalf of the petitioner that these findings are insufficient because there is no finding - that the petitioner took these goods dishonestly. Apart from this finding, we have all the other ingredients necessary to support the conviction of theft. There is the finding of taking moveable property out of the possession of the complainant without the complainant's consent. But as we read the judgment there is also this further necessary finding that the goods were taken dishonestly. In discussing the defence on which reliance is now placed and which was not the only defence made before the Magistrate, the Magistrate says: "As the prosecution pointed out this would not do away with the criminal harm that the accused had done to the complainant by dishonestly depriving him of his valuable security." We think this sentence clearly shows that the Magistrate held the taking of these goods from the complainant's possession to be dishonest.