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In Re: Kakarla Narasayya - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case No. 900 and Cri. Revn. Petn. No. 885 of 1951
Judge
Reported inAIR1953Mad516; (1953)IMLJ290
ActsPartnership Act, 1932 - Sections 4; Indian Penal Code (IPC), 1860 - Sections 378 and 379
AppellantIn Re: Kakarla Narasayya
Advocates:G. Chandrasekhara Sastry, Adv.;Public Prosecutor
Cases ReferredEmpress v. Ponnurangam
Excerpt:
.....his role as a partner. for it is not sufficient for the prosecution to establish a probability even though a strong one according to the doctrine of chances, he must establish the fact to a moral certainty--a certainty which convinces the understanding, satisfies the reason, and directs the judgment. -air 1923 mad 239 h .similarly to test the adequacy of the bona fides of the claim it may be considered whether in asserting his right to some property which a person believes to be good, he does something which he knows he has no right to do, e. and being an owner he has as much right to enjoy and use the joint property for his own benefit as any other co-owner; 'a, in good faith, believing property belonging to z to be a's own property takes that property out of z's possession......or removing of a thing is theft. thus where the tenant cute down trees standing on his own holding bona fide believing that he is entitled to them though as a matter they might belong to the zamindar, there is no theft. -- 'emperor v. dorilal', 8 cri. lr 275 (ea). therefore when a person is prosecuted for the offence of theft, it is for the prosecution to show that he was acting dishonestly. if the circumstances show that he was acting in the assertion of a bona fide claim of right, a dishonest intention cannot be attributed to him and the offence of theft would not stand made out: --bhagwan sahai v. divisional forest officer', : air1947pat264 (f); -- 'bachittar singh v. rahlm baksh', a. i. r 1938 lah. 759 (g). in india the chief forms in which a bona fide claim of right can be set up.....
Judgment:
ORDER

Ramaswami, J.

1. This is a criminal revision case filed against the conviction and sentence of the learned Sub-Divisional First Class Magistrate of Peddapur in C. A. No. 53 of 1951 confirming the conviction and sentence of the Additional Stationary Sub-Magistrate, Rajahmundry in C.C. No. 343 of 1930.

2. The facts are :-- The complainant has purchased Musurumilli Bamboo Coupe No. 1 for the year 1949-50, i.e., for the year ending 30-6-1950 for Rs. 5000/- in auction held by the Forest Department and was working the Coupe through the men engaged by him. He was getting the stock of bamboos from the Coupe to Gokavaram and stocking them in the site of one Dasari Bulliah. This site was held under a lease of the accused from whom the complainant has taken it on an annual rent of Rs. 35/- for the purpose of securing the bamboos therein. The complainant noticed that the stock in the depot was being diminished, having been misappropriated by the accused and so he asked his agent at Gokavaram to stock the bamboos in another site and accordingly on 5-12-1949 at 9 a.m. when 12 bandies of bamboos arrived from the Coupe and they were being directed towards the new site the accused interfered and threatened the cartmen and the agent and got the stock forcibly unloaded in the old yard and misappropriated them. Out of the 12 bandies, four bandies consisted of 748 plain bamboos and the remaining 8 bandies contained 2681 sugarcane bamboos and they were worth about Rs. 400/-.

3. The complainant is said to have reported this matter to the Forest Range Officer who in his turn reported the matter to the Station House Officer, Gokavaram. The Police did not investigate the offence. Hence the private complaint by the complainant.

4. The case for the accused was that himself and the complainant were doing business conjointly, that though the contract stood in the name of the complainant he (accused) had a share therein by private understanding and that he did not commit the offence of theft.

5. The accused examined three witnesses who gave the following information. D.W. 1 Majeti Ramarao, a. resident of Ramannapalam testified that he worked in the concern as a clerk for writing accounts for five months and that the accused and P.W. 1 have got equal shares in the business, that the accused used to receive the stock from the Coupe at the depot in Gokavaram and conduct sales while P.W. 1 acted as cash keeper. D.W. 2 Garugu Parvathisam a resident of Gokavaram, deposed that he was present at the time of auction of the Coupe when P.W. 1 and the accused came to an understanding to have half share each in the Coupe and that they were running the business on that footing. D.W. 3 Dasari Satyanarayana of Gokavaram swore that the Coupe was purchased in the name of P.W. 1 and that the site on which the material received from the Coupe was being deposited belonged to him and that accused told him that he had a share in the business and that it appeared to him that the accused and P.W. 1 were jointly conducting the business.

6. The learned Sub-Magistrate came to the conclusion that it was established by P.W. 1 that he was the contractor of the Coupe and that the accused only claimed a share in the business by private understanding with P.W. 1 and that even conceding for a moment that the accused had a share in the business privately he cannot on that ground claim publicly a title over the produce in the Coupe when no written agreement between them to that effect was got executed. Therefore, he convicted the accused for an offence under Section 379, I.P.C. in regard to the acts which were not disputed and sentenced him to pay a fine of Rs. 100/-.

7. The learned Sub-Divisional Magistrate, on appeal, confirmed the conviction and sentence on the foot of the following reasoning :

'In appeal before this Court the learned defence counsel argued that the accused and the complainant are partners in the bamboo-business and that the evidence on record does not disclose the offence under Section 379, I.P.C. But I cannot agree to these arguments. The plea that the appellant is partner and a share-holder along with the complainant is an obvious invention and after-thought. He has not produced a scrap to prove his contention. I therefore reject this argument as untenable. I agree with the learned Stationary Sub-Magistrate that the appellant has committed the offence of theft.

8. There is no doubt that the reasoning of the learned Sub-Divisional Magistrate cannot commend itself to us as sound. The essentials of partnership are that there must be a business and there must be an agreement to share the profits of the business and the business must be carried on by all or any of the partners acting for all : --'Suganmal v. Mt. Umraobi', AIR 1938 Nag 550, at p. 553(A) and --'Tajammul Hussain v. Ahmed Ali', (B). This agreement necessary for creation of a partnership may be either express or implied : --'Mirza Mal v. Rameshar : AIR1929All536 ; --'Jakiuddin v. Vithoba', AIR 1939 Nag 301 (D). In this case the contention of the accused is that the contract was taken in the name of P.W. 1 because the rules require that the contract cannot be taken in the name of undisclosed persons or by unregistered firms and that the business was actually carried on by reason of an agreement as a partnership. There is no point in saying that this is an invention and afterthought because the accused can put forward this defence only when he appears before Court and after disputes had arisen. This version of the accused is spoken to by no less than three persons and the learned Sub-Magistrate and the Sub-Divisional Magistrate have not assigned any reason for discrediting the testimony of these witnesses. On this version set up by the accused & supported by three witnesses whose testimony has not in any way been discredited, the fact emerges that the accused committed the acts complained of in his role as a partner.

9. Section 379, I.P.C., requires that the removal of the property from the possession of another should be with intent to cause wrongful gain to himself or wrongful loss to the other person. Dishonest intention is the gist of the offence: -- 'Jay Mahto v. Emperor', : AIR1941Pat383 (E). It is the intention of the taker which must determine whether the taking or removing of a thing is theft. Thus where the tenant cute down trees standing on his own holding bona fide believing that he is entitled to them though as a matter they might belong to the Zamindar, there is no theft. -- 'Emperor v. Dorilal', 8 Cri. LR 275 (EA). Therefore when a person is prosecuted for the offence of theft, it is for the prosecution to show that he was acting dishonestly. If the circumstances show that he was acting in the assertion of a bona fide claim of right, a dishonest intention cannot be attributed to him and the offence of theft would not stand made out: --Bhagwan Sahai v. Divisional Forest Officer', : AIR1947Pat264 (F); -- 'Bachittar Singh v. Rahlm Baksh', A. I. R 1938 Lah. 759 (G). In India the chief forms in which a bona fide claim of right can be set up are the following: (a) where the accused believes the thing to be his own: and (b) when the dispute is between the landlord and tenant; -- 'Srinivasalu Reddiar v. Govinda Goundan', AIR 1923 Mad 239 (H). In these cases it is not enough for an accused to assert that he removed the property under a bona fide claim of right; the Court must also find that the plea is not a mere pretence to cover an otherwise unjustifiable act but his claim to the property is based on certain and culpable facts. The claim must not be mala fide; -- 'Harihar Narain Singh v. Bankey Singh', : AIR1944Pat274 (I). A claim of right asserted in defence for prosecution for theft must be an honest one; -- 'Rainu v. The Crown', AIR 1950 Nag. 92 (J). In other words, there must be something more than a mere assertion or an untested and uncorroborated statement from the dock in order to make out the claim bona fide right; --'Nasib Chowdry v. Nannoo Chowdry', 15 W.R. Cr 47 (K); -- 'Rienno Singh v. Kali Churn Misser', 16 WR Cr 18 (L); -- 'Huris Chunder Das v. Bolai Audhicary', 16 WR Cr 75 (M); -- 'In the matter of Madhab Hari', 15 Cal. 390 (N); -- 'Jagat Chan-dra Roy v. Rakhal Chandra Roy', 4 C WN 10 (O); -- 'Hari Bhuimali v. Emperor', 9 C W. N. 974 (P); -- 'Chaitan Charan v. Kalachand', 10 CWN CC33 (Q); -- 'Dhirendra Mohan v. Emperor', 14 CWN 408 (R); -- 'Suraj Ali v. Afran Ali', AIR 1917 Cal 648(S); -- 'Sadasiv Singh v. Emperor', : AIR1917Pat40 (T); -- 'Imam v. Emperor', AIR 1917 Cal. 98 (2) (U);--'Lakanaw v. Emperor', AIR 1917 UB 2 (V); -- 'Udal Narain v. Ramanath', AIR 1918 Cal. 668); -- 'Bhagwat Sarap v. Emperor', : AIR1916All196 (X); -- 'Luni-domal v. Emperor', AIR 1915 Sind 25 (Y); --'Queen Empress v. Hari Bapuji', 1897 Bat Un Cr C 920 (YA); -- 'Alagarasawmi Thevan v. Emperor', 28 Mad 304 (Z),

It is sometimes stated that where property is removed in assertion of a contested claim of right, however ill-founded that claim may be the removal does not constitute theft. But this is the English law which requires proof of felonious intent to constitute theft. To prevent the taking from being felonious the claim of right must be honest one though it may be unfounded in fact; (1938) 107 L.J.K.B. 448 ; Halsbury's Laws of England, Edn. 2, Vol. IX, page 497. The mens rea requisite for an offence under Section 379, is set out in the section itself and we cannot travel beyond it. So it is not the Indian Law, and even as an English rule it rejects a mere pretention unless it was bona fide; and presumably there can be no bona fide claim if it was wholly ill-founded; 14 CWN 408 (R)'. Such a claim might be asserted by anybody even a thief. So the mere plea by an accused that the property with the theft of which he is accused is his own property, unsupported by proof or by some circumstances which do not indicate that there is truth in the statement, is insufficient. The claim must be tried and determined by the Court and must be proved by evidence to be fair and adequate though not necessarily acceptable or adequate in a civil Court for the making or refusing of a decree, -- 'Bhan Prasad v. Baraham Deo', : AIR1927Pat385 (ZA). A mere colourable pretence to obtain possession of property cannot therefore be put forward as a bona fide claim of right. -- 'Bhurasingh v. Emperor', A.I. R. 1935 Sind 115 (ZB) ; -- 'Oudar v. Emperor', ; -- 'Sada Panigrahi v. Raghu-nath Das', : AIR1950Ori196 In such a case the Jurisdiction of the Criminal Court is not ousted; -- 'Madan Lal v. Emperor', 1930 All LJ 457 (ZE); and -- 'Advocate-General, Orissa v. Bhikari Charan', AIR 1940 Pat. 588 (ZF).

But in case of a clear plea of bona fide title the (Court should leave the parties to have their rights determined by a Civil Court and throw out the criminal case: -- 'Bhim Bahadur Singh v. Emperor', AIR 1922 Pat. 265 (ZG). But even where the bona fides of the claim is doubtful, the benefit of the doubt must be given to the accused and the criminal case thrown out. Not be it noted of every doubt for everything relative, to human affairs and dependent on human evidence is open to some possible or imaginary doubts--but a reasonable doubt. Reasonable doubt is that condition of mind which exists whim the Magistrates cannot say that they feel an abiding conviction, a moral certainty of the truth of the charge. For it is not sufficient for the prosecution to establish a probability even though a strong one according to the doctrine of chances, he must establish the fact to a moral certainty--a certainty which convinces the understanding, satisfies the reason, and directs the judgment. As was said by Cockburn C. J. in the 'Tickborne case' it must not be the mere doubt of a vacillating mind, that has not the moral courage to decide upon a difficult and complicated question and takes shelter in an idle skepticism--or as Section 4, Evidence Act has it a fact is said to be not proved when after considering the matters before it the Court either does not believe it to exist or considers its existence so improbable that a prudent man ought under the circumstances of the particular case, act upon the supposition that it does not exist. This is essentially a question of fact and is dependent for its decision upon the circumstances of, each case. AIR 1923 Mad 239 (H).

The fact that the accused had repeatedly and for a length of time asserted his claim to the property would be some evidence of bona fides for it will then connect the taking with that claim. But the mere fact that a claim was boldly asserted and persisted in after it has received 'quietus' from the Court would not make it bona fide. Thus where a Magistrate issued an injunction to the accused but this he disregarded; Held that it is impossible to find that he acted under bona fide claim of right -- 'Sreenibash Mahata v. Emperor', 29 CrI. L. J. 501 (ZH). It may be material in considering as a question of fact whether the claim was a bona fide claim to consider whether or not there was any right at all because the complete absence of right and circumstances such as the Court would be justified in saying could not have led any reasonable man to a belief that he had a right: -- AIR 1923 Mad 239 H .

Similarly to test the adequacy of the bona fides of the claim it may be considered whether in asserting his right to some property which a person believes to be good, he does something which he knows he has no right to do, e. g., by taking the law into his own hands and removing the property from the possession of his opponent who claims the property for himself: -- 'Rangaswami v. Emperor', AIR 1928 Rang 113; 9 CWN 974; --'Reg v. Bhichajee', Rat UN Cr.C. 22 (ZJ); AIR 1916 All 198 (X) and --'Queen-Empress v. Sheomeshur Rai', 1888 All WN 97 (ZK). In such a case the bona fides might be destroyed by the fact that the proper course for accused would have been to have had recourse to the Civil Court and not taken the law high-handedly into his own hands and remove the property. In all these cases the nature and extent of the right claimed must be shown before it can be permitted to have the effect of arresting the case in progress; it must be made to appear that it is not a mere cobweb, right that is set up but that it is such as to raise a real and substantial doubt as to whom the property belongs.

10. In the instant case the bona fide claim of right is set up on the foot of a partnership. In a partnership each partner is part owner of the business in the same way as each member of a joint family is a co-owner in the family estate. He is not a mere servant or agent employed for a special purpose; and being an owner he has as much right to enjoy and use the joint property for his own benefit as any other co-owner; --'Suganchand & Co. v. Laduram Balakisandas', AIR 1941 Nag 105 (ZL). This assertion of a partnership seems to be something more than a colourable pretence as it is supported by the evidence of three witnesses who have not been discredited by both the Courts below.

11. It is not also the case for the complainant that though the taker was in joint possession of the property that joint possession had been converted into exclusive possession amounting to theft. The accused would have been guilty of committing theft in such a case: -- 'Queen-Empress v. Ponnurangam', 10 Mad 186 (ZM). It must however be joint possession which is converted into exclusive possession and not merely joint title. In this respect the law of this country is not different to the English law under which there may be criminal conversion of partnership property so as to amount to theft; see 31 and 32 Vict., C. 116, Section 1.

12. This case-law is only an amplification of illustration (p) to Section 378, I.P.C: 'A, in good faith, believing property belonging to Z to be A's own property takes that property out of Z's possession. Here, as A does not take dishonestly, he does not commit theft.'

It embodies only the principle contained in Section 79, I.P.C., which protects acts done by a person justified, or by mistake of fact believing himself justified, by law.

13. In the result, the removal of the propertywas in the assertion of a bona fide claim ofright and which by evidence was shown to bemore than a mere colourable pretence to obtainor get possession of the property, though probablyit might turn out to be one which would notstand the test in a Civil court. This defenceis valid and negatives dishonest intention whichis the gist of the offence of theft.

14. The conviction and sentence of the accused cannot be supported and are Hereby set aside and the accused is acquitted. The fine amount, if collected, will be refunded to him.


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