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411 Chapter 17 Offences against Private Property: Stealing All societies recognize the fundamental notion that it is socially wrong to take in any fashion the property of another. The general societal disapproval of this type of conduct finds expression in the Code in the law against stealing. Accordingly, one can hardly imagine anyone, except he is a patient in a psychiatric hospital who does not know that stealing is regarded as wrong. The Code maintains the old traditional threefold distinction between ‘larceny’ (re-cast as ‘theft’), embezzlement or conversion (re-named ‘misappropriation’)737 and cheating (now denominated ‘obtaining by false pretences’). Although these offences are dealt with separately they fall under the same section. Further, there is a certain overlap between them in that they carry the same penalty and there are two physical ingredients common to them. The common ingredients in all three broad types of offences are the requirements of ‘causing loss’, ‘to another’. A person suffers loss of something when he definitively ceases to have it, that is, he is permanently deprived of it. All the three ways (theft, misappropriation, false pretences) in which the wit of man has laboured to dispossess his neighbour are dealt with in one section with the same range of penalty for all three. The attitude of the Code in dealing with these offences in one section and in providing an identical range of penalty for all three appears to be that the means by which a man deprives another of his property is of secondary importance and that what is of primary importance is that in each case a man is dispossessed of his property.§1. Theft: stealing by trespassory asportation On the face of it the Code appears to have consolidated sundry theft-related offences into an omnibus crime denoted ‘theft’. In reality, there are three heads of the offence of theft, viz. simple theft (section 318(1)(a)), special thefts (section 319(1)(2)(3)), and aggravated theft (section 320). 1.1. Simple theft A person is guilty of simple or ordinary theft within the meaning of section 318(1)(a) if he “causes loss to another by removing his property”. The prosecution must prove that X intentionally caused loss to Y by the intentional removal of Y’s property. The physical ingredients of the offence consist of (i) causing loss (ii) to another (iii) by removing his property. 737 ‘Misappropriation’ here (i.e. under s. 318 (1)(b)) relates to misappropriation of private property, which should not be confused with misappropriation of public property under s. 184. This latter offence is infelicitously denoted as ‘misappropriation of public funds’. 412 Loss caused. Unauthorised ‘borrowing’. It must be shown that a loss was caused. A person loses something if he is permanently deprived of it, that is, he ceases definitively to have the thing in question. This requirement removes from the ambit of the offence unauthorized borrowing738 of property, because in such circumstances the defendant does not intend to cause loss or a permanent deprivation. For example, if without authorization X takes Y’s bicycle or car for a joyride or for whatever, or if he takes for use any utensil or receptacle belonging to Y, intending to return it to Y, X cannot be convicted of theft under section 318(1)(a). That does not mean X’s conduct is condoned by the criminal law and that he will get away with it. The unauthorized use of any property without the intention to deprive the owner of it is an offence under section 319(2). The defendant would always claim he merely ‘borrowed’ the property even though he is unable to point to a voluntary lender. The fact is that people of low morality have always tried to cloak knavery with the language of legitimacy. The situation is not one of real borrowing but of a dishonest ‘swiping’. In the ordinary run of theft cases the permanent loss caused would be to a person entitled to the property definitively. But under the section a loss caused to another entitled to keep the property only for a certain period of time might suffice to attract a conviction under the section. Unauthorised taking with intention to return equivalent property. If the property taken without authority is wrecked, destroyed or otherwise damaged, a charge could properly be laid either under section 319(2) or under section 316 (destruction of property, if the accused intended to damage it or if he subjected it...

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