[Type text]

THEFT AND CRIMINAL MISAPPROPRIATION

OF PROPERTY

Law of Crimes-I

Submitted by

Rahul Gupta

Roll. No.-46 | Id no. 20174528 | Batch of 2017-22

Faculty of Law,

Jamia Millia Islamia, New Delhi

In

Nov, 2018

Under the guidance of

Dr. Saadiya

Assistant Professor

Jamia Millia Islamia, New Delhi

 CERTIFICATE

The project entitled “Theft and criminal Misappropriation of

Property” submitted to the Jamia Millia Islamia, New Delhi for
Law of Crimes-I as part of Internal Assessment is based on my
original work carried out under the guidance of Dr. Saadiya from
July, 2018 to Nov,2018. The Research work has not been submitted
elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the
research paper has been duly acknowledged.
I understand that I myself would be held responsible and
accountable for plagiarism, if any, detected later on.

_____________________
Signature of the Candidate:
Date:15TH Nov, 2018
 CONTENT

1. Theft

2. Essential ingredients of theft

3. Theft between husband and wife

4. Punishment for Theft

5. Criminal Misappropriation of Property

6. Essential ingredient of Criminal Misappropriation

7. Distinction between Theft and Criminal misappropriation of Property.

1. Table of Cases

1. KN Mehra v State of Rajasthan

2. K.A. Malthi v Kona Bibbicutty

3. Govinda Majhi v Arobinda kar

4. 4.Ram Ratan v State of Bihar

5. Pyare lal Bhargva v State of Rajasthan

6. Velji Raghavji Patel v State of Maharastra

7. Venkataswami case

8. Albano Dias v State

 THEFT

Theft is defined in section 378 of IPC, 1860. To constitute theft the following
ingredients are required.

1. Dishonest intention.

Intention is the gist of the offence. It is the intention of the taker at the time when he
removes the article that determines whether the act is theft or not. The intention to
take dishonestly exists, when the taker intends to cause, ‘wrongful gain’ to one person
and ‘wrongful loss’ to another. Wrongful gain or wrongful loss must be involved in
dishonestly.

KN MEHRA v State of Rajasthan1

The alleged theft was of an aircraft, which belonged to the Indian Air Force Academy.
Two youngsters, Mehra and Phillips, were cadets on training in the Indian Airforce
Academy at Jodhpur. Phillips was discharged from the academy on 13 May 1952 for
misconduct. On 14 May 1952, he was due to leave Jodhpur by train. His friend Mehra
was due for flight in a Dakota, as part of his training alone with Om Prakash , a flying
cadet. The authorised time to take off flight was between 6 am and 6:30 am on the
morning of 14 May. Mehra and Phillips took off, not a Dakota but a Harvard t-22,
before the prescribed time at 5 am without authorisation and without observing any of
the formalities, which were pre-requisites for an aircraft flight. On the forenoon of the
someday, they landed at a place in Pakistan about 100 miles away from the indo-
Pakistan border. On the 16 May 1952 at 7 am both of them met the Indian High
Commisioner in Pakistan at Karachi, and informed him that they had lost their way
and force landed in a field and that they had left the plane there. They requested his
help to go back to Delhi. The Indian High Commissioner arranged for both of them to
be sent back to Delhi in another plane. While they were on their way to Delhi, the
plane stopped at Jodhpur and they were arrested and prosecuted for the offence of
theft.

1
AIR 1957 SC369,(1957)Cr LJ 552 (SC).
It was enough to constitute the offence that they had the dishonest intention at the
commencement of their journey. The fact that they took off Harward T-22 plane
rather than the allotted Dakota, and left India at 5 am instead of the scheduled time of
6 am, without waiting for Om Prakash and that they also refused to respond to the
wireless message from Indian aerodrome authorities at 11 am, showed that they had
the dishonest intention to take off a Harward T-22 plane.

If the act done is not animo-furandi it will not amount to theft. Thus, where the owner
is kept out of possession temporarily not with any such intention, but only with the
object of causing him trouble in the sense of mere mental anxiety and with the
ultimate intention of restoring the thing to him without exacting or expecting any
recompense, the detention does not amount to causing wrongful loss in any sense.

When a person takes another man’s property believing under a mistake of fact and in
ignorance of law, that he has a right to take it, he is not guilty of theft because there is
no dishonest intention, even though he may cause wrongful loss.

A person can be convicted of stealing his own property if he takes it dishonestly from
another.

Where there was a hire-purchase agreement in respect of vehicle, the act of taking
back the vehicle by the financier for default in payments in accordance with the
agreement did not amount to the theft as the vital element of dishonest intention was
lacking.

In K.A. Malthi v. Kona Bibbikutty 2

Supreme Court held that the possession of a vehicle taken by the accused financed in
pursuance of the hire-purchase agreement amounts to theft as such resumption of
possession is tainted with the requisite dishonest intention and mens rea.

A creditor, who takes movable property out of his debtor’s possession, without his
consent, with the intention of coercing him to pay his debt, is guilty of theft.

2
[(1996) 7 SCC 212],
When people seizes cattle on the ground that they were trespassing on his land and
causing damage to his crop or produce and gives out that he is taking them to the
cattle pound, he commits no offence of theft and however mistaken he may be about
his right to that land or crop. He has no dishonest intention.

2. Movable Property.
Movable property is defined in Section 22, IPC as including ‘corporeal property of
every description, except land and things attached to the earth or permanently
fastened to anything which is attached to the earth’.

It is expressly stated by explanations 1 and 2 of Section 378 that things attached to the
land may become movable property by severance from the earth and that the act of
severance itself will be theft.

Illustration- when A cuts down a tree on Z’s ground with the intention of dishonestly
taking the tree out of Z’s possession without his consent, A is guilty of theft.
Extraction of teak timber without licence amounts to theft.

It is theft to gather salt spontaneously formed on the surface in a salt pan. Any part of
this earth whether it be stones, or clay or sand or any other component when severed
from the earth is movable property and is capable of being the subject of theft.

A house cannot be the subject of theft, but there may be theft of its materials.

Theft of electricity is not a theft of movable property within Section 378 of IPC.
However, it is punishable under Section 135 of the Electricity Act, 2003.

Cooking gas or water passing through pipeline can be a subject of theft, when the
accused fixed a pipe in the main line just before the meter, to avoid payment.

Idols from the temples, paintings from museums and other public or private places are
subject of theft.

The human body, whether living or dead (except mummified or dead bodies
preserved in scientific institution or medical college) is not subject of theft.
Animals can become the subject of theft, for they can be classified as movable
property. The removal of animals grazing in open lands where it had been left by the
owner is theft. But leading the animals to the pound is not theft. However, if a person,
the owner or a stranger, removes cattle from pound where they are secured, without
paying the levied fees, he is guilty of theft as he deprives the pound-keeper of his
legitimate fees.

Fish in running waters, such as rivers, and canals and in the lakes and seas are ferae
naturae and cannot be the subject of theft. So also fish in open irrigation tanks, or
tanks not enclosed on all sides, where even the right of fishing has been let out to a
licensee are considered as ferae naturae and not subject of theft.

Govinda Majhi v Arobinda kar 3

The accused had caught fish from the portion of the tidal and navigable river licensed
out to the complainant, he was held not guilty of theft by the Orissa High Court.

Ram Ratan v State of Bihar4

The supreme court held that when a person seizes cattle on the ground that they were
trespassing on his land and causing damage to his crops and says that he was taking
them to the pound he commits no offence of theft, however mistaken he may be about
his right to that land or crop. The remedy of the owner of the cattle so seized is to take
action under section 20 of the Cattle Tresspass Act 1871. The apex court held that the
owner of the cattle and others who went armed with sharped edges weapons and
lathis, to rescue the cattle, had no right of defence to their property as against the
accused. It further held that as the accused and their men could have apprehended in
the circumstances, that the owners property was not peacefully inclined and would
use force against them in order to rescue the cattle and that the force likely to be used
cause grevious hurt, the accused committed no offence in causing injuries to persons
in the owners party and in causing the death of a person in that party.

3
AIR 1950;Ori 106.
4
AIR 1965; SC 926.
3. Out of the possession of any person.
The movable property which is subject of theft must be in the possession of the
prosecutor. The word possession is not defined in the IPC, though its nature in one
aspect is indicated in Section 27, wherein it is said that “….When property is in the
possession of a person’s wife, clerk or servant, on account of that person, it is in that
person’s possession within the meaning of this code.

Explanation:—
A person employed temporarily or on a particular occasion in the capacity of a clerk
or servant, is a clerk or servant within the meaning of this section.”

The term ‘possession’ is a polymorphous term, which may have different meanings in
different contexts. It is impossible to work out a completely logical and precise
definition of ‘possession’, uniformly applicable to all situations in the context of all
statutes’. Salmond describes possession, in fact, “as a relationship between a person
and a thing the test for determining whether a person is in possession of anything is
whether he is in general control of it”.

Possession exists in one whenever he has physical control, whether rightful or

wrongful, over a corporeal thing, possession is entirely distinct from property and
either may exist without the other. Thus, when an article is stolen though the thief has
possession, the owner retains the property.

A movable thing is said to be in the possession of a person when he is so situated with

respect to it that he has the power to deal with it as owner to the exclusion of all other
persons, and when the circumstances are such that he may be presumed to intend to
do so in case of need.

Possession may be de facto or de jure. The former is mere custody. A servant has only
mere custody of the articles which belongs to his master.
In Pyare Lal Bhargawa v. State of Rajasthan

The accused was a superintendent in a government office. At the instance of

somebody, he got a file from the secretariat through the clerk and took the file to his
house for a day and made it available to a person to facilitate the removal of some
papers and the insertion of some. Thereafter, the file was replaced. The question
before the Supreme Court was whether the act amounted to theft. The Supreme Court
held that to commit theft, one need not take movable property permanently out of the
possession of another, with the intention not to return it to him. It would satisfy the
definition if he took any movable property out of the possession of another person,
though he intended to return it later. When the file was unlawfully taken away from
the department, he deprived the department of the possession of the file and caused
wrongful loss to the department. So, it was held that it amounted to an offence under s
378, IPC. The Supreme Court, in line with the Pyare Lal dictum, in State of
Maharastra, held that the transfer of movable property without consent of the person
in possession need not be permanent or for a considerable length of time nor is it
necessary that the property should be found in possession of the accused. Even a
transient transfer of possession is sufficient to meet the requisites of theft.

Illustration- A, the master of a house gives a dinner party; the plate and other things
on the table are in his possession, though from time to time they are in the custody of
his guests or servants.

In certain circumstances, a person who has no actual physical control over a thing will
be deemed to have possession in the eye of law, which is called constructive
possession. This is also called de jure possession or possession in law.

Illustration- Whenever he has entrusted the care of a thing to his servant, the physical
control of the servant does not amount to possession as against his master, but merely
to custody and as against other persons, it may amount to possession.

Where there are several joint owners in joint possession, and any one of them,
dishonestly takes exclusive possession, he would be guilty of theft. A co-owner of
movable property with another, whose share is defined, can be guilty of theft, if he
removes the joint property without consent of the co-owner. Similarly, if a coparcener
dishonestly lakes the separate property of another coparcener, he will be guilty of
theft.

Section 24 of IPC says “Whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person is said to do that thing
dishonestly”.

Section 23 of IPC reads as follows:

Wrongful gain:
‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is
not legally entitled.

Wrongful loss:
‘Wrongful loss’ is the loss by unlawful means of property to which the person losing
it is legally entitled.

Gaining wrongfully, losing wrongfully.

A person is said to gain wrongfully when such person retains wrongfully, as well as
when such person acquires wrongfully. A person is said to lose wrongfully when such
person is wrongfully keep out of any property, as well as when such person is
wrongfully deprived of property.

4. Without consent.
The thing stolen must have been taken without the consent of the person in possession
of it. There can be no theft where the owner actually consents to or authorizes the
taking. Consent may be express or implied and may be given either by the person in
possession, or by any person having for that purpose, authority either express or
implied, but consent given under improper circumstances will be of no avail.
5. Moves that property.

The offence of theft is completed when there is a dishonest moving of the property,
even though the property is not detached from that to which it is secured. There must
be moving of the property with an intention to take it.

As the essence of the act consists in the fraudulent taking, that taking must have
commenced. The English equivalent term is ‘transportation’ which implies something
more than mere moving, which alone is necessary under the IPC.

The least removal of the thing taken from the place where it was before is a sufficient
transportation though it be not quite carried off. It is not necessary that the property
should have been removed out of its owner’s reach or carried away from the place in
which it was found.

Upon this principle the guest, who having taken off the sheets from his bed with an
intent to steal them carried them into the hall, and was apprehended before he could
get out of the house, was adjudged guilty of theft. So also was he, who having taken a
horse in a close with intent to steal it, was apprehended before he could get it out of
the close.

Illustration- A meets a bullock carrying a box of treasure. He drives a bullock in a

certain direction,in order that he may dishonestly take the treasure. As soon as the
bullock begins to move, A has committed theft of treasure.

Theft between husband and wife

A spouse may be guilty of theft if he/she dishonestly removes exclusive property of

the other. However a Hindu woman cannot be guilty of theft when she removes
stridhan without consent of her husband as the property belongs to her exclusively.
But her husband can be convicted for theft if he removes it without his wife’s consent.
A spouse cannot be held guilty of theft if she removes certain movable property
jointly possessed with his wife.

If we mix all the essential ingredients then we get the definition of theft. According to
section 378 thefts is defined as-
Whoever, intending to take dishonestly any movable property out of the possessions
of any person without that person’s consent, moves that property in order to such
taking is said to commit theft.

Section 379 defines punishment for theft

Whoever commits theft shall be punished with imprisonment of either description for
a term which may extend to three years, or with fine, or with both.

Criminal Misappropriation of Property

Section 403 of IPC, defines dishonest misappropriation of property and

prescribes punishment therefor. It is a new offence carved out from theft. Theft is
removal of property from the possession of the owner. But in criminal
misappropriation, the taking is upon finding or other coming across of the property,
and from the possession of the person.

Whoever dishonestly misappropriates or converts to his own use any movable

property shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine or with both.

A dishonest misappropriation for a time only is a misappropriation within the

meaning of this section.

Illustration- A finds a Government promissory note belonging to Z, bearing a blank

endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a
security for a loan, intending at a future time to restore it to Z. A has committed an
offence under this section.

The word misappropriates means nothing more than improperly setting apart
for one’s own use to the exclusion of the owner. The word converts is used as
ejusdem generis with misappropriates and means nothing more than an appropriation
of and dealing with the property of another, without right, as if it were one’s own
property. The word dishonestly qualifies the taking of property in section 378 while it
qualifies misappropriation here. In theft, the initial taking is wrongful, while in
criminal misappropriation, it is indifferent and may even be innocent possession while
becomes wrongful by a subsequent change of intention or from knowledge of some
new fact with which the party was not previously acquainted.

Illustration- A takes property belonging to Z out of Z does possession in good faith

believe, at the time when he takes it, that the property belongs to him-self. A is not
guilty of theft; but if A, after discovering his mistake dishonestly appropriates the
property to his own use, he is guilty of an offence under Section 403 of dishonest
misappropriation of property.

Similarly A and B, being joint owners of a horse. A takes the horse out of B’s
possession, intending to use it. Here, as A has a right to use the horse and appropriates
the whole proceeds to his own use, he is guilty of an offence under Section 403, I.P.C.

Essential ingredients.

1. Property must be of another.

The term misappropriation implies misappropriation of property in possession of

someone else. No criminal misappropriation of property can take place if that
property is in nobody’s possession. The essence of the misappropriation is putting to
own use or converting to own use another’s property. There cannot be
misappropriation of one’s own property.

Velji Raghavji Patel v State of Maharastra5

The managing partner of a partnership firm had realised certain amounts from the
business, but put it to own use. He was charged for criminal misappropriation. The
Supreme Court held that if he has an owner of a property uses his property in
whichever way he wants to use it and with whatever intention, will not be liable for
misappropriation and that would be so, even if he is not the exclusive owner thereof.
A partner has undefined ownership along with the other partners over all the assets of
the partnership. If he chose to any of them for his own purposes, he may be

5
AIR 1965 SC 1433, (1965) 2 Cr LJ 431 (SC)
accountable civilly to the other partners but, he does not thereby commit any
misappropriation.
The mere possession of the property is not sufficient for proving the charge without
something to indicate the appropriation or conversion, though being in possession
without any attempt to find the owner may amounts to evidence of intention to do so.

2. Converts to own use.

The word convert to own use means dealing with the property of another, as if it is
one;s own property, if the accused has not used the property for his own benefit then
he cannot be charged with criminal misappropriation. There must be actual
conversation of the thing misappropriated to his use. Mere retention of the property
does make him gyilty of misappropriation.6

If anything was found on the road, and the person who founds it, instead of put that
thing , either sells it or pawns it to somebody then it would amounts to converting the
property for one’s own use.

In case of Venkataswami

The accused, a servant in the postal department, secreted two letters with the intention
of handing them over to the delivery peon and sharing with him certain money
payable upon them, it was held that the accused was guilty if attempt to commit
dishonest misappropriation of property and theft.

3. Dishonest Intention.

This offence cannot take place when the person concerned has innocently come into
the possession of a thing, but when by a subsequent change of intention, or from the
knowledge of some new facts with which the party was not previously acquainted, he
keeps it, after which the retaining becomes wrongful and fraudulent.7

6
Emperor v Phul Chand Dube AIR 1929 All 917; Rama Swamy Nadar v State AIR 1958 SC 56 (1958)
Cr LJ 228 (SC)
7
Bhagiram Dome v Abar Dome (1888) ILR15 Cal 338
In Albano Dias v. State8

The accused, a cashier, not only did not make payment of the amounts mentioned
against the complainant’s names in the appropriate rolls, but also went to the extent of
writing falsely in the cash book that amounts had been paid, it was a deliberate act on
his part.

Once it is found that the accused was entrusted with certain amounts for
disbursement, which he had not disbursed and instead has falsely made entries as
paid, there is an unerring certainity that he converted the amount for his own use and
the act was a deliberate act to commit misappropriation, which also amounted to the
offence of criminal misconduct under section 5(1)(c),The Prevention of Corruption
act 1947.

If a person appropriates to himself the property of another, puts it to own use or

unauthorised use and thereafter restores it to the owner, it was still amount to
misappropriation under this section.

Difference between Theft and Criminal Misappropriation.

(1) In theft the property is taken out of the possession of another person and the
offence is complete as soon as the property is moved. In criminal misappropriation
there is no invasion of another’s possession. The property often comes innocently into
possession.

(2) In theft taking of thing is wrongful from the very beginning, in criminal
misappropriation it may be innocent and lawful. It is the subsequent change of mind
that makes the lawful taking into unlawful act in criminal misappropriation.

(3) The property in respect of which the offence is committed must be movable in
both theft and criminal misappropriation.

(4) In theft mere moving itself is an offence. But in criminal misappropriation, the
moving may not be an offence; it may even be lawful; it is the subsequent intention to
convert or misappropriate the property that constitutes the offence.

8
(1981) Cr LJ 677
(5) Dishonest intention is common to both. In theft, this is shown by moving of the
property, while in criminal misappropriation, it is affected by actual misappropriation
or conversion. In theft, dishonest intention precedes taking, while it follows the taking
in criminal misappropriation.
BIBLIOGRAPHY

1. K.D. Gaur: Commentary on the Indian Penal Code, Universal Law Publishing Co
Pvt Ltd.,New Delhi.

2. P.S.A. Pillai: Criminal Law-Incorporating the Criminal Law (Amendment ) Act,

2013, Lerxis Nexis India, Gurgaon

3. Ratanlal and Dhirajlal, Law of Crimes, A Commentary on Indian Penal Code, 1860

4. C.K. Takwani: Indian Penal Code, Eastern Book Company, Lucknow

Websites Referred

1. www.shareyouressays.com

2. www.gktoday.in

3. www.clatgyan.in

4. www.manupatra.in

5. www.scconline.in

THANKS.!