Rex v Patel (Criminal Appeal No. 326 of 1945) [1946] EACA 65 (1 January 1946)

### APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

# REX. Respondent v.

## DAYABHAI J. PATEL, Appellant Criminal Appeal No. 326 of 1945

Criminal Law—Theft of money S. 269 Penal Code—Possession as well as property in the money parted with—Subsequent conversion—No theft.

A native went into the accused's shop to purchase a lamp. The accused said he had no lamps and persuaded the native to give him Sh. 9 saying that when the lamps came he would get one. The native returned a few days later and asked for his lamp. The accused said he had none. The native asked for the return of the Sh. 9 and the accused denied ever receiving the money. The accused was convicted of theft. He appealed.

Held (4-4-46).—The subsequent conversion by a person in whom the property in the article converted has passed does not constitute theft whatever the intention of that person may he.

Appeal allowed.

#### Mangat for the Appellant.

### Todd, Crown Counsel, for the Crown.

JUDGMENT.—Shortly, the facts of this case are that a native went into the accused's duka with a friend to buy a lamp. The accused said he had no lamps and persuaded the native to give him Sh. 9, saying that when the lamps came the native would get one. Although the native asked for a receipt, the accused said there was no need for one, as they knew each other. The native agreed. Returning a few days later and asking for a lamp the accused said he had none and on being asked to return the Sh. 9, said that he had never received the money. On these facts the Magistrate found the accused guilty of theft. Accepting the facts as found by the Magistrate and assuming that the accused from the outset had fraudulent intent, which would appear to have been the case, the question is whether the native when he parted with possession of the money intended to pass the property in it. If he did there could be no theft for a person cannot convert what has already passed to him. On this point there is no difference between English law and the local law and the cases on the point are referred to at page 495 of the 31st Ed. of Archbold. On the evidence it is clear that the native, trusting the accused, paid for a lamp in advance, parting with both the possession and the property. In these circumstances, despite the fraudulent and mean conduct of the accused, the conviction for theft cannot be had. The appeal is allowed, the conviction and sentence quashed, and the fine, if paid, is directed to be refunded.