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 15th 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.
4. The second ground taken is that; upon the terms of the agreement and the nature of the transaction between the parties, no criminal offence has been committed. This ground is based on the defence which was raised in a later stage of the trial. The contention is that on the agreement between the parties the petitioner was to deposit in the godown goods to the value of 30 per cent, in excess of any amount advanced to him and that he can take out goods so hypothecated on the payment of 70 per cent, of their value. It is further contended that, under the agreement all goods put in the godown were not hypothecated but only those sufficient to amount to the value of the advance made and an additional 30 per cent. It is further Urged that at the time these goods were removed the petitioner did not take all the goods from the godown and that the amount left by him was sufficient to cover the sum advanced and the additional 30 per cent. It is Urged that as there is no finding that the value of the goods left was less than 130 per cent, of the money advanced it could not be found by the Magistrate that the petitioner acted dishonestly. But as we read the agreement and as is found by the Magistrate it appears that all goods placed in that godown were by that act hypothecated to the complainant, even though they were in excess of the quantity necessary to cover the advances which had then been made. That being so, the petitioner could not take them out without the consent of the complainant and it was for him to prove that he took them without intending to harm the complainant. The question of dishonesty is a matter of inference and we think it is an inference which the Magistrate could rightly draw from the accused's conduct especially having regard to the nature of the defence set up by the petitioner at the trial. His main line of defence seems to be an attempt to prove that the money received by the sale of the goods removed by him was paid to a servant of the firm. This defence has been found to be false. The second defence was that which we have discussed above. But though raising this defence the learned Counsel who appeared for the petitioner also admitted that the case was one of technical theft and we have no doubt that it was in consequence of this admission that the learned Magistrate did not come to a more definite finding on the question of dishonesty than that which we have quoted above. But, as already stated, we hold that finding is a finding that the petitioner's intent on was dishonest and as we read the agreement we hold that that finding was justified.
5. We accordingly discharge this Rule. The petitioner must surrender to his bail and undergo the Unexpired portion of his sentence.