(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 MWN 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 MWN 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.
(4) In emperor v. Ganpat Krishnaji, : AIR1930Bom167 (1) a Division Bench of that Court took the same view, citing and following ILR 22 Cal 1017. This is a very brief decision, in which there is no further discussion of the criteria which should be properly applied to facts of this character.
(5) But there are two recent decisions of the Supreme Court, upon this vital aspect. One of them is Apparao v. Lakshminarayana, : AIR1962SC586 . In the former case the essential passage expounding the law, runs as follows:
'It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. In 2 East's Pleas of the Crown, page 659, the law was stated a long time ago thus: 'If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt to all, the court will direct acquittal'. And according to 1 Hale's Pleas of the Crown, page 509, the best evidence is that the goods were taken quite openly. The law thus stated by East and Hale has not been altered in modern times'.
(6) When we proceed to the even more recent decision of : AIR1962SC586 we find that their Lordships have expounded the law with a slightly different phrasing, in the following manner:
Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable saves the act of taking from being theft, and where such plea is raised by the accused it is mainly a question of fact whether such belief exists or not.........
By the expression 'colour of a legal right' is meant not a false pretence but a fair pretence, not a complete absence of claim, but a bona fide claim, however weak'.
Applying these principles to the facts of the present case and, what is more significant, to The explicit findings of the two courts below in more than one passage. I have no doubt at all that the first revision petitioner cannot be convicted to theft, for the simple reason that he seems to have acted under a bona fide claim of right, though it was claim quite invalid in law. The probabilities in favour of this interpretation are (1) the long provisos history of relationship between the debtor and This creditor (revision petitioner), (2) the fact that there was considerable indebtedness on the date of the incident, (3) that the first revision petitioner seems to have been attempting to obtain some security for repayment of his debt, in some mode or other, and (4) that the first revision petitioner came and took the radio of the complaint openly, claiming it as security which he would or was entitled to hold, and which the debtor could always retrieve by proper repayment of the debt.
The learned Public Prosecutor urges, and I must confess with great plausibility and force, that this view might give a charter to unscrupulous creditors; they might trespass on the property debtors, and seize their goods, under the pretext that they were then labouring under the bona fide but mistaken view that a security for the debt could be obtained or enforced, without the consent of the debtor. But I do not think that there is really any great danger of this. In all such conceivable cases, as in the present case, the very act of entry into property of the debtor is a civil trespass, and the seizure of the moveable property, a tort or civil wrong justifying a claim in damages against the person seizing the property. But it is a question of fact whether the concerned accused acted under a bona fide claim or colour of right, through ignorance of the true state of the law on the subject. In the present case taking all the circumstances and probabilities into account, I have no doubt that the first revision petitioner acted under the mistaken impression that he was entitled to seize this radio as security for the debt, because of the prior relationship between the parties, and the considerable period for which the debt had been outstanding without repayment. But if any creditor hereafter proceeds to act in the same fashion, he certainly runs the gave risk that the courts may find that his claim of right was not a weak pretence but a false pretence altogether, in which case he would be properly convicted for theft, and punished under the criminal law. With these observations this revision petition is allowed and the first revision petitioner will now be acquitted.
(6a) The conviction of the second revision petitioner (the servant) cannot be independently sustained, as he acted only under the directions of his master. Actually, he did not independently seize the property at all, and is not liable for such seizure. Hence, he will also be acquitted.
(7) The fines, if paid, will be refunded. The order directing the return of the seized property, the radio, to the complainant, made by the courts below, will stand.
(8) Revision allowed and Conviction set aside.