In Re: Seeni Thevar, Thanga Thevar

Somasundaram, J.—Periyathambi (P. W. 1) had tied two of his bulls in front of his house on the night on 1st September, 1969. When he woke up at 4 a.m. he found these bulls missing. He searched for them, but could not trace them. On 4th September, 1969 with D. W. 2 he went to the shandy in Paramakudi. The first Petitioner, who was present there, asked P. W. 1 as to why he had come to the shandy. P. W. 1 told him what had happened. The first Petitioner offered to help him, Both of them proceeded to Nallakurichi and there they met the second Petitioner. The first Petitioner told P. W. 1 that the bulls could be recovered on payment of Rs. 500. This amount was reduced to Rs. 300 by bargain. P. W. 1 returned to Paramakudi and got the amount from P. W. 5 through P. W. 3. He then gave this amount to the first Petitioner. The latter in turn passed it on to the second Petitioner. The time was 6 p.m. The second Petitioner, accompanied by the first Petitioner, brought the bulls at 9 p.m. and handed them over to P. W. 1. With the bulls P. Ws. 1 and 2 returned to Paramakudi and informed P. W. 3 as to how they got them. P. W. 4 who was then present told them that on the night of 1st September, 1969, the Petitioner had asked him the way to Samuthram and Varunthi and that he showed the way. P. W. 1 gave the report Ex. P-1 in the police station on 5th September, 1969. P. W. 6 investigated the crime and charged the Petitioners u/s 215 of the Indian Penal Code. P. Ws. 1 to 6 deposed to the above facts. When questioned by Court, the Petitioners denied in toto the receipt of any account from P. W. 1 as deposed to by him. Believing P. W. 1, the learned Magistrate convicted the Petitioners u/s 215 and sentenced them to undergo R. I. for 6 months. On appeal, the learned Sessions Judge, Ramanathapuram, confirmed it. The Petitioners contend that the convictions are not correct.

The Petitioners contend that they have been treated as thieves by the prosecution and that as such they cannot be convicted u/s 215 of the Indian Penal Code. Whoever takes or agrees or consents to take any gratification under pretence or on account of helping any person to recover any moveable property of which he shall have been deprived, by any offence punishable under the Indian Penal Code, unless he uses all means in his power to cause the offender to be apprehended and convicted of the offence, commits an offences u/s 215 of the Indian Penal Code. In In Re: Nalli Veera Thevan and Another, Ayling, J., held that S. 215 I. P. C, is not intended to apply to the thief but to someone, who being in league with the thief, receives gratification for helping the owner to recover the stolen property without at the same time using all the means in his power to cause the thief to be apprehended and convicted. There is also an earlier decision reported in Kudumban, In re. 1 Weir Crl. Rulings, 196 where a Bench of this Court held that the Section would not apply to the case of the offender himself taking gratification. The learned Judges observed:

This is seen from the part of the Section which speaks of his using all means in his power to cause the offender to be apprehended and convicted of the offence.

This view was followed by Somasundaram, J., in an unreported case of this Court in Swaminatha Vandapiriyar v. Rex Crl. R. C. No. 1445 of 1949. Thus, the Petitioners cannot be convicted u/s 215, I. P. C, if they are thieves On behalf of the Petitioners, it is argued that P. W. 4 was examined on the side of the prosecution to show that these two Petitioners were near the village on the night when the bulls were stolen. This evidence does not establish that the prosecution treated the Petitioners as persons who actually stole the bulls involved in the matter. This was also not the case of the complainant. Next, it is urged that in the column in the F. I. R. the Petitioners are treated as thieves. There is no such allegation in the report given by P. W. 1. There was no charge u/s 379, I. P. C. also. Thus, it cannot be said that the Petitioners are the thieves who actually committed the theft of the bulls.

3.Where a person demands a sum of money, out of all proportion to the legitimate expenses required for his reasonable remuneration for tracing out the stolen property, it will prima facie imply that the money was received also for ''squaring'' up the thief and saving him from prosecution. Vide Panchakutty Thandampirar, In re. 1965 MWN. (Cri.) 54 at 56.

In the present case the money demanded was Rs. 500. By bargaining it was reduced to Rs. 300. The Petitioners promised to produce the missing bulls and in fact they produced them on the very same day immediately after the payment. If their conduct was really bona fide, they would have told him that they would make an honest search for the missing bulls. Such a search also requires time. Their assurance that they would produce the bulls and the fact that they produced them on the same night, establish that they knew or had means of knowing the whereabouts of the offender. The large sum of money they took for this purpose shows that the bargain was that they would not take any steps to bring the offender to book, but pay some money to him and square him off. This circumstance would indicate that when the Petitioners received the amount and made the representation that they would recover the property stolen, they had the means of getting the offender and they had no intention to bring him to book while restoring the property.

The defence is one of total denial. The conviction u/s 215, I. P. C. is, therefore, correct. The same is confirmed. The substantive sentence is reduced to the period already undergone and in addition a fine of Rs. 200 is imposed on each of them. Time for payment of fine, one month. In default of payment of fine, each of them shall suffer R. I for six weeks. Out of the fine, if collected Rs. 300 shall be paid to P. W. 1.

With the above alteration in the sentence, the revision is dismissed.