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POLICE v BEEDESSEE NANKUMAR

2009 RDR 147

Cause Number 3397/08

In the District Court of Mapou

In the matter of:

Police

v.

Nankumar Beedessee

Judgment

Accused stands charged with having on or about the month of January 2007 at

Amaury, wilfully and fraudulently abstracted something not belonging to him namely

forty bags of 20 kilograms of Basmati rice and alternatively with having wilfully and

without sufficient excuse or justification found to have in his possession the aforesaid

articles which had been carried away, abstracted or obtained by means of a

misdemeanour namely larceny at the time and place aforesaid to the prejudice of one

Shayed Goburdhun. The charges were laid under the headings larceny and possession

of article obtained by means of a misdemeanour under sections 301(1) and 40 of the

Criminal Code. He pleaded not guilty to both counts and retained the services of

counsel at his trial.

The case for prosecution rested mainly on the testimony of Mr Shayed

Goburdhun, the complainant, which is to the following effect:-

He owns a shop at Amaury. In the month of January in 2007, he bought rice

from the accused. But when he sold the rice to his clients, he had complaints so that he

returned it to him and was in a position to say how much but he could not remember how

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much he bought. After his memory was refreshed, he remembered having bought 40

bags of Basmati rice each weighing 20 kilos and he paid Rs.18000 for them. Because

his clients reproached him that the rice was not good to taste, he phoned the accused to

inform him about same. The accused asked him to return the rice and that he would

give him a better quality of rice in a few days. He came on one day at his place at

Amaury and left after having collected the rice which was kept in his store next to his

shop and after having told him that he would give him rice of better quality in 2-3 days.

He waited for weeks and yet no rice was delivered by the accused. He did buy rice from

him on several occasions in the past. Nevertheless, the accused did not refund him

his money.

In cross-examination, he contended that given that his shop is on Royal Road,

Amaury, he sold 20-25 bags of rice or more on a weekly basis and he sold them to more

than 15 persons. About a year, prior to the present case, he used to buy rice and other

commodities from the accused and knew him well. All that time, he had transactions

with him and did not have any problem. He did not remember the date he bought the 40

bags of rice from him but had a receipt in his possession but did not produce it to the

police. He had sold 2-3 bags of rice from what he bought from the accused. The

remaining rice in question remained at his place for 2-3 weeks. The accused came to

collect the rest of the bags of rice. He accepted that in his statement he did not mention

about the 40 bags of rice or less having been stolen by the accused. He took 8 months

to report the matter to the police because the accused undertook to return the rice to him

which he did not. He contacted him for more than 15 times which fact he omitted to tell

the police. He decided that he voluntarily gave the accused the bags of rice. He did not

know of any discount being given to him by the accused as he did not say so to him.

Accused did not adduce any evidence in Court and had denied the charge in his

out of court statement.

I have duly considered all the evidence put forward before me including the

submission of learned Counsel. The question that I have to decide is whether the

voluntary remission of the property for an exchange constitutes larceny. This reasoning

leads me to consider the underlying principles in relation to the offence of larceny. For

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larceny to be properly constituted, the abstraction and the intention to appropriate must

be concomitant.

The ambit of abstraction or soustraction has to be assessed by considering

what two famous French authors had to say as endorsed in Rima v R and Anor[1975

MR 128]), Essary v R [1981 MR 425] and Ghurburn v R[1990 MR 206]:-

Garcon, C.P.A. art.379

613. Cependant cette rgle de linstantaneit du vol ne doit pas tre exagre. Le

dlit est consomm lorsque lagent sest saisi de la chose dautrui dans lintention de se

lapproprier, mais cette apprhension mme, si rapide quelle soit, peut durer un certain

temps. Sans doute on se tromperait en disant que le vol nest definitivement accompli

que lorsque le coupable a mis la chose dans le lieu o il prtendait la placer, la dposer

ou lentreposer; mais il ne serait pas plus exact de considrer que lapprhension est

complte ds que lagent a mis la main sur la chose: il faut encore quil la dplace et

lemporte. Cest entre ces deux opinions extrmes que se trouve la vrit. Le coupable

est en action de vol jusquau moment ou lenlvement de la chose soustraite est

vraiment achev,et, par example, si le vol, est commis dans une maison. Aussi

longtemps quil se trouve dans le lieu du delit, nanti de la chose, il commet le vol. Nous

verrons que cette ide, que Garraud a clairement degag, et laquelle nous donnons

notre complte adhsion, est trs importante au point de vue des circonstances

aggravantes.

Garraud D.P.F,tome 6

2382.Mais est-il certain que le vol soit consomm alors que lenlvement ne lest pas?

Sans doute, le dlit est termin ds que la soustractiion est acheve; mais on peut se

demander si la chose est compltement sortie de la possession du lgitime propritaire

tant que le voleur, qui la saisie et qui la tient, est dans la maison mme o il lest venu

chercher? Le coupable nest en action de vol jusquau moment ou lenlvement de la

chose soustraite tant achev, il na plus a defendre, contre le lgitime propritaire, la

chose derobe? Cest cette periode de lopration seulement que lexcution se

trouvant complte lagent pass la tentative la consommation du dlit.

Therefore, the abstraction to be complete would mean such action as having

taken out of possession of the legitimate owner against his will into the possession of the

thief so that the thief does not have to ward off the possibility of retrieval by that owner.

Only at that point in time that the fraudulent intent of depriving the legitimate owner of

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the property will have to be made in order to be concomitant with the abstraction to

constitute larceny (Rima(supra) and Essary(supra)).

It is has been clearly established by the evidence led by the prosecution that there was

no taking away of the 37-38 bags of rice belonging to the complainant from his

possession against his will by the accused . It is common ground that both parties were

on good terms with each other and that the complainant indeed had business

transactions with him for about a year in relation to the purchase of rice and had never

had any problems with him. It is worthy to note that the complainant sells more than 20-

25 bags rice weekly and to more than 15 persons so that he could not remember when

exactly he bought the rice from the accused although he had a receipt, how much rice

exactly was sold from the 40 bags of rice, forgot to inform the police that he phoned the

accused for about 15 times and was not aware of any discount being given to him by the

accused in relation to the returned rice. Therefore, it is plausible that the complainant

did not remember of any adjustment in price made by the accused in relation to the poor

quality of rice so that he already sold part of it to clients although part of it was returned

to the accused and he decided to report the matter to the police about 8 months after as

a precautionary measure bearing in mind that he sells 20-25 bags of rice every week. At

the other end of the spectrum, in the present circumstances of this case, the contract as

regards the voluntary remission of the bags of rice by both parties to each other was a

contrat dechangewhich is not one of the contracts mentioned under section 333 of the

Criminal Code. Thus, the accused cannot be convicted for embezzlement either bearing

in mind that there is no larceny in the absence of any abstraction of the rice against the

will of the complainant by the accused. (see- Prayag v R [1955 MR 371] and Lebon v R

[1977 MR 295]).

The alternate count of possession of property unlawfully obtained in the manner

described above cannot be allowed to stand given that the larceny itself has not been

proved (see Pillay v R 1942). In Mohit v R 1919, it was held that the larceny must beproved and not merely adumbrated so that the evidence of suspicious circumstances

surrounding the possession was not alone sufficient. Further, in Pattan v R [1944 MR

62], it was held that the objects found in possession of the accused must be identified as

being the proceeds of larceny as averred by the prosecution which exercise has been

non-existent in the present case. (all the above underlining is mine)

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For the reasons I mentioned above, the case for the prosecution should fail.

Accordingly, I dismiss the information against the accused in relation to both counts.

S. Bonomally

Senior District Magistrate

30.09.09

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