A Case analysis of

R v Hall [1973] 1 QB 496

With reference to IPC 1860.

Submitted by

Manu Gupta
Division C Roll No 41 Class BBALLB

Of

Symbiosis Law School, NOIDA Symbiosis International University, PUNE

In

March, 2013

Under the guidance of

Dr. Girjesh Shukla & Asst. Prof. Vikram Singh

Course in Charge, Law of Crimes: Paper I: Penal Code

CERTIFICATE

The project entitled A Case analysis of R v Hall [1973] 1 QB 496 With reference to IPC 1860. Submitted to the Symbiosis Law School, NOIDA for Special Contracts as part of internal assessment is based on my original work carried out under the guidance of Dr. Girjesh Shukla & Asst. Prof. Vikram Singh from January 7th, 20132 to March 14th, 2013. The research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate:

Date:

14-03-2013

ACKNOWLEDGEMENT

First of all I wish to dedicate my sincere thanks and acknowledgements to Dr. C.J. Rawandale for his support and motivation.

I wish to acknowledge Dr. Girjesh Shukla and Asst. Prof. Vikram Singh for providing me with the opportunity to enhance my knowledge by submitting this report and all the support.

Index

Particulars

PG. No.

i.

Brief Facts

ii.

Judgement

iii.

Legislation

iv.

Relevant Case Laws

v.

Conclusion

vi.

Bibliography

Brief Facts

The defendant was a travel agent who had taken money for securing airline tickets for customers and not booked them. The defendant paid all the monies into the firm's general trading account. His business collapsed and the money was lost. He argued that the money was paid into the general account as deposits. He was not intended specifically to book flights etc. Therefore, there was no obligation to use the deposit to book. He was convicted of theft of the money when the tickets failed to materialise. The Court of Appeal held that he was not under an obligation under Section 5 (3) of The Theft Act 1968. Although the defendant had a general obligation to fulfil his contract he did not have to deal with those specific notes and cheques in a particular way. He was free to use it as he pleased, and was therefore not guilty of theft when he was later unable to provide the tickets required.

Judgement:

Edmund-Davies LJ stated: " when a client goes to a firm carrying on the business of travel agents and pays them money, he expects that in return he will, in due course, receive the tickets and other documents necessary for him to accomplish the trip for which he is paying, and the firm are "under an obligation" to perform their part to fulfil his expectation and are liable to pay him damages if they do not. But, in our judgment, what was not here established was that these clients expected them to "retain and deal with that property or its proceeds in a particular way," and that an "obligation" to do so was undertaken by the appellant.i We must make clear, however, that each case turns on its own facts. Cases would, we suppose, conceivably arise where by some special arrangement (preferably evidenced by documents), the client could impose upon the travel agent an "obligation" falling within section 5(3). But no such special arrangement was made in any of the cases here being considered. It follows from this that, despite what on any view must be condemned as scandalous conduct by the appellant, I our judgement, upon this ground alone this appeal must be allowed and convictions quashed. Where the case turns, wholly or in part, on section 5(3) a careful exposition of the subsection is called for. It was nowhere quoted or even paraphrased by the learned Commissioner in his summing-up, instead he unfortunately ignored it and proceeded upon the assumption that as the accused acknowledged the purpose for which clients had paid him money, ipso facto there arose an obligation to retain and deal with it for that purpose."

Legislation

Section 378 of The Indian Penal Code, 1860 deals with the offence of theft under the Indian legislature.

Section 378: Theft.-- 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.

Section 5 (3) of The Theft Act, 1968 is applicable to the aforementioned case. Section 5 Belonging to another (1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). (2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right. (3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other. (4) Where a person gets property by anothers mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to
3

the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. (5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

Relevant Case Laws

Davidge v Bunnett [1984] Crim LR 297. In the abovementioned case, the divisional court held the defendant for theft with reference to Section 5(3) of the Theft Act, 1968. The defendant shared a flat with several other people who gave her cheques on the understanding that a communal gas bill would be paid with the proceeds. In fact, the defendant spent the proceeds on Christmas presents and left the flat without giving notice. The Divisional Court held that the defendant was under a legal obligation to use the proceeds of the cheques in a particular way (for the discharge of the gas bill) and therefore they were property belonging to another by virtue of Section 5(3) of The Theft Act, 1968.

R v Wain [1995] 2 Cr App Rep 660 The court held Wain for theft of good s belonging to another in n the abovementioned case. The defendant, by organising events, used to raise money for a company which distributed money among charities. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. He then dishonestly dissipated the credit in his account. The Court of Appeal held that he thereby appropriated property belonging to another because the jury were entitled to find that he was a trustee of the money collected and had therefore received it subject to an obligation to retain its proceeds (the successive bank accounts) and deal with them in a particular way (to hand them over to the company). The appellant took part in raising money for a telethon organised for charity by Yorkshire Television. He raised 2,833.25, which he paid into a separate bank account. When asked by Yorkshire Television for the money he made a number of excuses. Eventually the company gave him permission to pay the money into his own bank account. The appellant then handed the company a cheque drawn on that account. The cheque was not met. Meanwhile, the appellant withdrew cash from that account. At trial, it was submitted on the appellants behalf that, under s 5(3) of the Theft Act 1968, the debt owed to the charity could not be said to be the proceeds of the money which he
5

had been paid, because the proceeds were the things purchased with the money. This submission was rejected by the trial judge and the appellant was convicted. His appeal to the Court of Appeal was dismissed. McCowan LJ: it seems to us that by virtue of s 5(3), the appellant was plainly under an obligation to retain, if not the actual notes and coins, at least their proceeds, that is to say the money credited in the bank account which he opened for the trust with the actual property. When he took the money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purpose, thereby appropriating them.

K.N Mehra v State of Rajasthan AIR 1957 SC 369 The appellant, KN Mehra, and one MZ Phillips were convicted under section 379 of The Indian Penal Code for theft of an aircraft. Both the accused persons were cadets on training in the Indian Air Force Academy at Jodhpur. Phillips had been discharged from the Academy on the grounds of misconduct. Mehra was a cadet receiving training as a navigator and was due for a flight in a Dakota as part of his training. However, on the scheduled day, Mehra along with Phillips took off, not in a Dakota, but a Harvard HT 822, before the prescribed time, without authorisation, and without observing any of the formalities which were the pre-requisites for an air-craft flight. They landed at a place in Pakistan about 100 miles away from the Indo-Pakistan border. Both of them were sent back to Delhi and arrested enroute in Jodhpur and prosecuted and convicted for theft. The appellant contended that in the circumstances of this case there was implied consent to the moving of the aircraft in as much as the appellant was a cadet who, in the normal course, would be allowed to fly in an aircraft for the purposes of training. Rejecting the contention the court said the taking out of the aircraft the present case had no relation to any such training. It was an aircraft different from that intended for the appellant's training course, for the day. The flight was persisted in, despite of signals to return when the unauthorised nature of the flight was discovered. It is impossible to infer consent in such a situation. Another contention of the appellant was that, there was no proof in this case of any dishonest intention much less of such an intention, at the time when the flight started. It is accordingly necessary to consider what dishonest intention and 'wrongful gain' and 'wrongful loss, consist of under the IPC. 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.

And Section 23 of IPC reads as follows: Section 23: "Wrongful gain', '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 kept out of any property, as well as when such person is wrongfully deprived of property. The taking out of the Harvard aircraft by the appellant for the unauthorised flight did give the appellant the temporary use of the aircraft, for his own purpose and temporarily deprived the owner of the aircraft, namely, the government, of its legitimate use of its purposes. Such use being unauthorised and against all the regulations of aircraft flying, was clearly a gain or loss by unlawful means. Further, the unlawful aspect is emphasised by the fact that it was for flight to a place in Pakistan. Thus, there has been both wrongful gain to the accused, and wrongful loss to the government. The appeal was dismissed, and the conviction upheld.ii A temporary removal of an office file out of the office of the Chief Engineer and making it available to private person for a day or two amounts to the offence of theft.

Conclusion

Sometimes the recipient of property is obliged to deal with property in a particular way. Section 5(3) of The Theft Act provides that it is theft if a person receives property under an obligation to deal with it in a certain way but instead uses it for his own purposes:

"Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other." The key to the Court of appeals reasoning to this case was that the court didnt expect the travel agent to deal with the actual monies handed over to hum, in a particular way. The customers expected the travel agent to buy tickets for them but not using the same monies as provided by them.

The obligation to deal with the property in a particular way must be a legal one. A social or a moral obligation to do so will not be sufficient. Further, the defendant must be aware that such an obligation exists. Whether al obligation exists or not, and if it does, the nature of the obligation is to be determined by construing the express and implied terms of any contract between the parties. Such an obligation was there present in the case of Davidge vs. Bunnett. Also, when a person is given money to hand it over to another, there is an obligation to deal with it in a particular way. The court upheld the conviction of Wain in the case of R v. Wain stating that he was under a legal obligation to keep the proceeds and deal with them in a particular way.

Bibliography
i. Cases on Theft available at http://www.lawteacher.net/criminal-law/cases/theft-cases.php (last modified 05-03-13)

ii. K.D. Gaur, Criminal law: Cases and materials (p no. 663) (Lexis Nexis, Nagpur, 6th edition, 2009).