Theft | A goes to the house of B and finds a pen lying on the table. He believes that to be his own pen and therefore takes away the pen without the consent of B….

Question: Theft | A goes to the house of B and finds a pen lying on the table. He believes that to be his own pen and therefore takes away the pen without the consent of B. What offence, if any, is committed by A? [R.J.S. 1984]

Find the answer to the mains question only on Legal Bites. Theft | [A goes to the house of B and finds a pen lying on the table. He believes that to be his own pen and therefore takes away the pen without the consent of B. What offence, if any, is committed by A?]

Answer

In order to constitute the offence of theft under section 378, IPC, the following five elements are essential:

1. it should be a movable property;
2. in the possession of anyone;
3. a dishonest intention to take it out of that person’s possession;
4. without his consent; and
5. a moving in order to such taking.

A person can be said to have a dishonest intention if in taking the property it is his intention to cause gain by ‘unlawful means’ of the property to which the person so losing is legally entitled. The intention to take dishonestly must exist at the time of the moving of the property. When the dishonest intention is totally absent, there is no theft.

In the case of Queen-Empress v. Nagappa (1890) ILR 15 Bom 344, it was held that if one takes another man’s property believing, under a mistake of fact and in ignorance of the law, that he has the right to take, will not amount to theft.

Therefore, in the present case at hand, when A takes away the pen lying on the table of B without the consent of B, believing it to be his, he has not acted dishonestly with an intention to steal the pen and cause wrongful loss to A from his act. Since the essential ingredients for the commission of an offence of theft are absent in the case, A cannot be said to have committed theft or any offence for that matter as he acted under a mistake of fact.

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