1. The three accused in this case have been convicted under Section 380, Indian Penal Code and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 75 each or in default to one month's rigorous imprisonment. The case for the prosecution is that the accused No. 1 gave a kettle for repairs to the complainant who has an electric repair-shop at 7/1, Middleton Street, 11 or 12 days before the occurrence (as stated by the complainant) or on the 28th March as stated by the accused in the petition filed in this Court. The complainant promised to finish the repairs within 6 or 7 days. On the 18th April the accused went to the shop and demanded return of the kettle. The complainant refused to part with it as the repairs were not complete and ultimately agreed to return it to the accused if he was paid Rs. 5 for the repairs already done I may mention here that the amount fixed for the repair of the kettle was Rs. 6. The accused refused to pay the amount, took away the kettle from the almirah and walked out with it. He was accompanied by the other accused and all of them were tried and found guilty as stated above. In order to sustain a conviction under Section 380, Indian Penal Code, it must be found that the accused dishonestly took the property out of the possession of the complainant, and 'dishonestly' has been defined as meaning 'with intent to cause wrongful gain to one person and wrongful loss to another person.' It is necessary, therefore, to prove in this case, all the other facts being admitted, that the accused took away the article from the possession of the complainant with the intention of causing wrongful gain to himself or wrongful loss to the complainant. The matter stands thus: The complainant took the article for repairs on promise to finish them within 6 or 7 days. Not having done the work within the time stipulated, the accused went to his shop and took, admitting for argument's sake, forcible possession of the, article. Did he, in these circumstances, commit the offence of theft? My answer to the question is in the negative. It is argued on behalf of the prosecution that the complainant had a lien on the kettle and the accused having removed it from his possession has committed an offence as defined in Section 378, Indian Penal Code, and illustrated in illustration (j) to that section. The learned Trial Magistrate also relied upon illustration (j) to find dishonest intention of the accused. Illustration (j) runs thus: 'If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z s possession with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly.' Apparently the framers of the Code had in their mind the provisions of the law of contract as embodied in. Section 170 of the present Contract Act which creates a lien in favour of the bailee over goods on which he has spent labour or skill and for which he is entitled to remuneration. The learned Deputy Legal Remembrancer in support of the conviction argues that the complainant had a lien of Rs. 5 on the kettle for the amount of work done. This raises the intricate question of civil law relating to 'quantum meruit.' In the first place who has to determine that the complainant is entitled to Rs. 5? In the second place, as has been held in the case of Skinner v. Jager 6 A. 139; A.W.N.(1883) 263 : 3 Ind. Dec. (N.S.) 746, where a certain sum is fixed for the repair of an article and there is nothing to indicate that the repairer would be entitled to receive remuneration for a part of the repair, he has no right to retain the article until he receives his remuneration for the amount of work done. There is no evidence in this case that there was any agreement or understanding, implied or express, between the parties, that if the kettle is repaired even in such a way as to be useless (the complainant admits it is useless in its present state), the complainant will be entitled to remuneration for the amount of work done. I am of opinion that complainant had no lien over the kettle and Section 170, Contract Act, does not apply.
2. We have been referred to the case of Queen-Empress v. Gangaram Santram 9 B. 135 : 6 Ind. Jur. 313 : 5 Ind. Dec. (N.S.) 90, and upon the authority of that case it is argued that in order to constitute theft it is enough if the property is removed from the possession of a person who has an apparent title or Colour of a right to it. On the facts of that case, though scantly reported in the report, the decision may be justifiable. But on the plain reading of the section of the Indian Penal Code, I think it must be clearly established that the accused did not commit the act with the intention as defined in s; 24, Indian Penal Code. It will be preposterous to lay down as a general rule of law that a person who is entrusted to repaid a certain article is entitled to claim lien of to refuse to part with it after doing a certain amount of work which makes no improvement thereupon and the owner is not entitled to recover it from him without paying for such work as has been done. If I give a piece of cloth to a tailor to make a coat and he sends only a sleeve but does not do the rest of the work within the time stipulated or within a reasonable time, I have no right, according to the view urged on behalf of the Crown, to take back the cloth until I have paid for the work done. In the present case the complainant failed to perform his part of the contract, namely to do the work within 6 or 7 days and the accused was justified in asking for a return of the article if the work was not done within a reasonable time. The learned Deputy Legal Remembrancer refers to certain sections of the Contract Act which deal with certain circumstances where time is of the essence of the contract. In a case where time is not of the essence of the contract, it must be performed within a reasonable time. In simple every day transaction like the present it is not inconsistent with law to look to the common sense side of the matter. Kettle is an article of every day use. A man may require to have this household article repaired with as little delay as possible. According to the accused it was retained by the complainant for 20 days and according to the complainant for 11 or 12 days. Conceding that the accused acted improperly in demanding and taking back the article, they have not certainly acted dishonestly. Their intention was not to cause wrongful loss to complainant or wrongful gain to themselves but to recover their thing after lapse of reasonable time. In my opinion the conviction cannot stand. 1 hold that the conviction of the petitioners under Section 380 is bad in law. I must express, however, my strong disapproval of the conduct attributed to the petitioners--conduct unworthy of gentlemen which they claim to be. The conviction of the petitioners and the sentences passed upon them are set aside. The fines, if paid, will be refunded.
3. I agree.