May 16, 2019
Dishonest and temporary “removal” of original documents to take photocopies and to further use information amounts to theft, the Supreme Court has held.
“Temporary removal of original documents for the purpose of replicating the information contained in them in some other medium would thus fulfill the requirement of “moving” of property which is the of the offence of theft as defined under Section 378 (theft) of the Indian Penal Code,” a Bench of Justice R. Banumathi & Justice R. Subhash Reddy observed in a judgment delivered on 9th May.
The judgment followed the principle laid down its earlier precedents that “to commit theft, one need not take movable property permanently out of the possession of another with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on.”
The Apex Court reasoned, “the loss need not be caused by a permanent deprivation of property but may be caused even by temporary dispossession, though the person taking it intended to restore it sooner or later. A temporary period of deprivation or dispossession of the property of another causes loss to the other.”
This Judgment was delivered on the appeal filed by Birla Corporation alleging theft of 54 documents by Adventz Investments and Holdings.
However, the Calcutta HC held that since the the first 28 documents were still in Birla’s custody, the taking away of the information contained in these documents & their temporary removal wouldn't qualify as theft, dishonest misappropriation of property or dishonest receiving of the stolen property.
The Apex Court set aside the High Court decision.
The Supreme Court focused on the ingredients of theft:
- • foremost component of theft is that the subject matter of the theft needs to be a “moveable property” and a “document” is a “corporeal property”. Information contained in a document, if replicated, can be the subject of theft and can result in wrongful loss, even though the original document was only temporarily removed from its lawful custody for the purpose of extracting the information contained therein.
- • Intention is the gist of the offence. It is the intention of the taker which must determine whether taking or moving of a thing is theft. The intention to take “dishonestly” exists when the taker intends to cause wrongful loss to any other which amounts to theft.
- • Movable property should have been “moved” out of the possession of any person without his consent.
The facts and circumstances of the case, it is to be seen in using the documents in the litigation, whether there is “dishonest intention” on the part of the respondents in causing “wrongful loss” to the appellant Company and getting “wrongful gain” for themselves.
However, the Supreme Court held that in the present case removal of the documents did not amount to theft noting that,
"But it would be far-fetched to say that the respondents have dishonestly removed the documents and committed the offence of theft and that they are to face criminal prosecution for theft of the documents. It would only be an arm-twisting tactics to deprive the respondents from pursuing their defence with relevant evidence and materials."
Criminal prosecution against the respondents
Regarding criminal prosecution against the respondents, the bench observed that allegations of theft and misappropriation relating to the documents there are no specific allegations as to when, where and how the respondents have committed theft; nor are there specific allegations against then respondents accused. Allegations in the complaint, being taken at their face value, do not disclose prima-facie case nor the ingredients of the offence of house theft or misappropriation are made out.
The bench stated that, "The criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. When the Court is satisfied that the criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in exercise of the inherent powers, such proceedings can be quashed."
Read the Judgement:
Share this Document :Picture Source :
