THEFT

O The law
O section 378 ; whoever intending to take
dishonestly any moveable 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.
Explanation:
 A thing so long as it is attached to the earth, not
being movable, is not the subject of theft, but it
becomes capable of being the subject of theft as soon
as it is severed from the earth
 A moving, effected by the same act which effects the
severance, may be theft
 A person is said to cause a thing to move by
removing an obstacle which prevented it from
moving, or by separating it from any other thing as
well as by actually moving it
 A person who by any means causes an animal to
move, is said to move that animal, and to move
everything which in consequence of the motion so
caused is moved by that animal
 The consent mentioned in the definition 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
 ELEMENTS OF THEFT
O 1-intention to take dishonestly
O 2- the property must be movable property
O 3-it should be taken out of possession of another
person
O 4-without the person’s consent
O 5-there must be removal of that property in order
to effectuate such taking
 A)MENS REA
 DISHONETLY
 Dishonestly is defined in section 24.
O Section 24: dishonestly means
O ‘Whoever does anything with the intention of causing wrongful gain to
any person, or wrongful loss to another person.’
O Section 23:
O wrongful gain = ‘not legally entitled
O wrongful loss = ‘the loss by unlawful means of property to which the
person losing it is legally entitled’
O *refer illustration (i),(j),(p).

 Section 23 defines what is wrongful gain/loss
 This element require intention to cause wrongful gain or wrongful
loss. This intention (ie. intention to take dishonestly)must exist at the
time of moving the property.
 Refer illustration (h), (i), (j)
 -There is no dishonest intention if a person take his friend’s book
which was carelessly left in a restaurant, intending to return it after
reading it. It is not a theft since there is no dishonest intention.
 -The mens rea of theft also includes an intention to take property of
another without his consent.
O B) ACTUS REUS

O a-Taking out of possession

O b-Property in possession of another
O c-No consent to taking
O d-Moving the property out of possession
O PP V RAMIAH[1959] MLJ 10
O The accused was charged for house-breaking under Section 454
and theft. The three accused broke into the complainant’s house
and removed a trunk which was in possession of the
complainant. Some days later it was found in the possession of
one of the accused. The first accused defended himself by
claiming that the complainant owed him money and he
removed the property because he thought if he kept it for a few
days the complainant would pay the debt. He had no intention
to steal. The second and third accused thought that the property
belongs to the first accused, so they assisted him to remove it.
O Held: the first accused was guilty of theft. It is not necessary for
an accused to take the property for himself before he can be
held liable for theft, nor is it necessary that he should
permanently deprive the person of his possession. The accused
did not say that he believed in good faith that any person could
take other’s property as security for debt.
O -refer illustration (h) and(i)
O LAI CHAN NGIANG v PP
O The accused sold some bundles of cloth to the complainant on credit. When
the complainant failed to make payment (debtor) the accused went to his
shop and removed four bundles of cloth, three of which were those sold to
the complainant.
O Held: the accused believed in good faith that as a creditor, he had a right to
take back the property from the debtor, therefore he was not convicted for
theft.
O Good faith = Section 52:
O ‘the act must be done with due care and caution.’
O *refer illustration (p).
O As a reasonable man, a person must exercise due care and caution according
to his own competence. Thus, these are to be considered:
O nature of the act done must be looked at
O importance of the act
O facilities available for the accused to exercise care and caution.
O SITABAI PURSHOTTAM
O The accused, a vendor had sold a barge to the
complainant and received part of the purchase price.
However, the accused seized the barge from the
complainant when he failed to pay the balance of the
purchase price. However, before she seized it she asked
her pleader to write a letter to the complainant informing
that if he did not pay, the contract is cancelled.
O Held: referring to the Sales of Goods Act, no property
would be passed until the purchase price was fully paid.
Thus, the property still belonged to the complainant and
the owner could not be convicted of theft because it
cannot be shown that she had dishonest intention in
seizing possession of the barge.
 a-taking out of possession
 Whether temporary deprivation of possession is
sufficient to constitute theft?
 temporary deprivation is sufficient

 WARD V PP[1953] 19 MLJ 153
 2 OKT convicted under section 380 .The defence
argued that they have no criminal intention
because they took the item for a short time and
will return it back if the owner asked back. There
is only temporary deprivation .
 Held; The accused was guilty although he has no
intention to deprive the property permanently from
its owner. Temporary deprivation is sufficient to
constitute theft
 b-property in possession of another
 Theft is an offence against possession and not
against ownership. Therefore complainant need
not proof ownership.
 Possession- not defined in PC
 2 kinds of possession;
 i- possession in fact
 - a person has a mere custody over the property
 Eg. A servant has a mere custody over the property
which belong to his master
 ii- Possession in law
 -a person has a constructive possession
 -eg. A person has the actual physical control and
he is deemed to have possession in the eyes of law
 when things are in one’s physical
possession-he is in possession of that thing
 When things are out of one’s possession
but he has control over them-he may still
be considered to be in possession to that
thing
 -Section 27 PC- when a property is in
possession of a person’s wife, clerk or
servant, it is considered to be in that
person’s possession.
 Refer to illustration (n) and (o) of section
378.
 -possession may be lost or abandoned as
when there is no longer control over the
thing
 PYARELAL V STATE OF RAJASHTAN [1963] AIR
SC 1094
 The accused , a superintendent in a government office
took home some files containing certain information and
made it available to another person who replaced some
papers in the file by other papers
 - later the accused returned the file to office
 Supreme Court; The accused was guilty. To commit theft
one need not take moveable property permanently out of
the possession of another with the intention not to return
it to him. It would be satisfy if he took any moveable
property out of the possession of another person though
he intended to return its later.
 c)no consent to taking
 -if the owner or person in possession consented then
there is no case of theft
 PACKEER ALLY V SAVARIMUTHU[1916] 2 CWR
 The accused approached the storekeeper of an estate
intended to steal rubber from the store. The
storekeeper informed the superintendent. The
superintendent authorized the storekeeper to allow
the accused to steal.
 The issue is whether there is theft when consent is
given?
 Held; what is important is whether the okt knew that
there was consent while he was dishonestly
remove the thing. Okt was liable.
 d) moving the property out of possession
 -the property must be moved and taken out of
possession
 -illustration (a),(b) and (c)
 -what is important is the intention of dishonestly taking
the thing out of the person’s possession
 RAJA MOHAMED V R[1963] 19 MLJ 339
 OKT, who was the complainant’s staff ,removed
boxes of drinking glasses from the store room at
ground floor to first floor.
 Issue; Whether this act amount to taking out of
possession?
 Held; It is sufficient if the accused has formed such
dishonest intention to move that property in order to
such taking. It is not necessary to move that property
out of the possession of the other person.
THIANGIAH V PP[1977] 1 MLJ 79
Some fertilizers were found hidden behind the
tree in the rubber estates and the accused was
caught by the management staff who was waiting
in an ambush.
Held; There was no attempt as the act was still
premature and was still at a preparatory stage.
There must be some further overt act by the
accused.

K.N MEHRA V STATE OF

RAJESHTAN[1975] AIR SC 369
O PUNISHMENT
O -section 379
O ‘punishment with imprisonment 0f 7 years, or fine,
and for a second or subsequent offence shall be
punished with imprisonment and also liable to fine
or top whipping.’
O