Chapter 17 - Offences Against Property (Refers to Traditional Property)

01. Section 366 – Theft

02. Section 372 – Extortion
03. Section 379 – Robbery

Additionally:

Section 386 – Criminal Misappropriation

“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”

Section 388 – Criminal Breach of Trust

“Whoever, being in any manner entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of law prescribing the mode in which
such trust is to be discharged, or of any legal contract, express or implied, which he has
made touching the discharge of such trust, or willfully suffers any other person so to do,
commits “criminal breach of trust””

Section 398 – Cheating

“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so

deceived to deliver any property to any person, or to consent that any person shall retain any
property, or intentionally induces the person so deceived to do or omit to do anything which
he would not do or omit if he were not so deceived, any which act or omission causes or is
likely to causes damage or harm to that person in body, mind, reputation, or property, or
damage or loss to the Government is said to “cheat”

Explanation – A dishonest concealment of facts is a deception within the meaning of this

Section”

Property can be of 02 forms –

01. Traditional Property

a. Movable Property –
  Defined Under Section 20 of the Penal Code
“The words ‘movable property’ are intended to include corporeal
property of every description, exceptand and things attached to the earth
or permanently fastened to anything which is attached to the earth”
Eg: Money is considered as a movable property in SL
b. Immovable Property
02. Intellectual Property – is not considered as property liable for offences
mentioned in the Penal Code
i. Based on knowledge
ii. Belongs to one person

Section 96 – When the Right of Private Defense of property extends to Causing Death

…”to the voluntary causing of death or of any other harm to the wrongdoer, if the offence,
the committing of which, or the attempting to commit which, occasions the exercise of the
right, be am offence of any of the descriptions hereinafter enumerated, namely-

Firstly – Robbery;

Secondly – House breaking by night;

Fourthly – Theft, Mischief, or house – trespass under such circumstances as may reasonably
cause apprehension that death or grievous hurt will be the consequence if such right or
private defense is not exercised”

01.Section 366 – Theft

 Only considers Movable Property (Explanation 01)
 Attempting to/ Starting to remove is enough to comprise of the offence
(Explanation 02)
 The consent that has been mentioned could be either expressed or implied
(Explanation 05)
 Eg: I have done it several times but the possessor never complained, and
thus it was another factor that lead him to complain this time
Mala Inse v Mala Prohibita

What is frowned upon by the society Cannot be considered under morality

irrespective whether there is a law It is an offence named by Penal law

making it an offence or not

“Whoever, intending to take dishonestly any movable property out of the possession of any
person without that person’s consent, moves that property in order to such taking, is said to
commit ‘theft’”

 Accordingly, there are 05 Facts needed to Prove Theft – if the prosecution

cannot prove at least one, the case will be dismissed.
 One doubt is enough

Possessor – The offence of theft can only be done against the person who is either the
possessor or the owner. Ownership allows one to transfer, use, sell and destroy while
possessor can only transfer, use, sell but could never destroy. Owner can be both the
possessor and the owner while the possessor is only the possessor. (except in circumstances
in which ownership is also transferred to the possessor)

Theft is done against;

01. Consent of the particular person (without the consent to remove the property) – proof
of dishonest intentions
02. Possessor
03. Movable property
04. With dishonest intention – unless the person believes himself to be the ‘temporary
caretaker’
05.

Temporary Caretaker – is also a possessor. The Legal Possessor remains the car owner.

 Eg; The garage owner becomes the temporary caretaker of your vehicle when you put
your car in the garage.
  Therefore, in an event of complaining of a theft of a single property, all these parties
(owner, possessor, temporary caretaker) could complain.
 In English Law they specify a time period which would amount to theft. Unlike Sri
Lankan law, which does not require anything like that and the mere act of removing
or starting to remove the property will amount to theft.

Trying to misplace, to deprive others with the ill intention will amount to theft

 Eg: Taking out the book from the library shelf and hiding the book, even if it is inside
the library itself (deprive others) as with the dishonest intention will amount to the
offence of theft.

Ripping the pages from the library book from where it belongs, will also amount to theft.

In an event of abetting for theft, (supporting to take the property out after you remove it),
under Sri Lankan law would be considered under abetting of stolen property.

 Eg: if one unhinges and remove a door from the frame, the door becomes stolen
property, and the other one helping to carry it out will be the abettor for theft of the
stolen property and thus each one will be punished accordingly.

However, In English Law, the abettor will be liable for the main offence as well aka for the
act of theft.

Section 386 - Criminal Misappropriation (Dishonest Misappropriation of Property)

“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”

 Mens Rea – Dishonest Intention

 Section 22- Dishonestly
“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””
 Actus Reus – Usage
 Misappropriation comes with the dishonest intention (mala fide status of mind)
 Misuse couples with the dishonest purpose/ intention
  Without consent (dishonest) and knowing it to be wrong, use the property
 Eg: Maybe in a situation in which the person is a close acquaintance and believing
that person has given consent or doesn’t mind, removes the property – not committing
and offence. However, at the time of coming to know that the person does not consent
for the use, then it becomes the offence of misappropriation/misuse.
 Eg: Believing some property (eg necklace) is one’s own, one uses it, but later figures
due to some factors (eg length, weight etc.) it is not one’s own and if no action is
taken to return the property to the rightful owner, then it constitutes this offence
(misuse).

Cases

01. Ramalingam v May (1944) 55 NLR p 514

02. The King v Jayasena (1947) 48 NLR p 241
o Seven accused’s were charged with committing murder
o Three convicted of theft
o Four convicted of dishonestly recovering or retaining the stolen property.
o The evidence showed that the property so far as some of the accused were
concerned, a measure of doubt as to whether the court drew the inference that
the traits constituted theft or dishonest receiving or retrieving of the property
o Held: Even if theft, receiving and retaining property were not committed in the
same transaction, the joinder of all accused in one charge was in order.
o Therefore, an accused can be criminally liable for theft and or receiving and
retaining stolen property
03. Ekanayake v Silva (1933) 11 Times of Ceylon p 57
 A wreath was placed at a war memorial and the evidence was that the
person who had placed it, intended to part with the ownership and the
possession of it when he sow placed and wreath and there was no one who
could claim the ownership and the possession of the property after it had
been sow placed.
04. Nagayya v Jayasekara (1927) 28 NLR p 467
 The accused, without the consent of the electricity board has taken a
particular number of volts of electricity.
  Held: ‘Electric current’ is not a movable property within the meaning of
the section 366 of the Penal code and therefore, electric current cannot be
the subject of the offence of theft

02.Section 372 – Extortion

“Whoever intentionally puts any person in fear of any injury to that person or to any
other and thereby dishonestly induces the person so put in fear to deliver to any person
any property or valuable security or anything signed or sealed which may be converted
into a valuable security, commits “extortion””

 Extortion can be committed against both movable and immovable property

 Is committed against;
01. Movable property (defined under Section 20 of the Penal Code)
02. Immovable property
03. Valuable Security – Defined under Section 28 of the Penal Code
“The words “valuable security” denote a document which is, or purports to
be, a document whereby any legal right is created, extended, transferred,
restricted, extinguished, or released, or whereby any person acknowledges
that he lies under legal liability or has not a certain legal right”

Cases

01. Rarunapala v State (This case could be used for both Robbery and Extortion)
02. Alevis Appu v Basnayaka (1947) 49 NLR p 66
03. James v Siwa (1943) 44 NLR p 300
04. Gunawardana v Samarakoon (1920) 21 NLR p 411
05. Thilakarathna v AG (1989) 2 SLR P 54
06. Sumathipala v Inspector of Police Crimes (1969) 72 NLR p 378