Jayantilal Hemraj v. R. Crim. App. 64-A-70; 29/6/70; Bramble, J.

Jayantilal Hemraj v. R. Crim. App. 64-A-70; 29/6/70; Bramble, J.

The appellant was an employee of the National Bank of Commerce. He was entitled to have a shamba boy at the expenses of the Bank. During the months of September and October 1969 appellant claimed and obtained from the Bank Shs. 200/- per month as wages for his Shamba boy-complainant – whereas e paid him Shs. 90/- for reach of these months and retained the balance. Appellant was convicted on two counts of stealing cash, the property of his gardener. On appeal the High Court the appellant argued that the charge was wrongly conceived since the property was of the Bank and not of the garner. (b) that the complainant was short-paid because it was agreed that the appellant should retain the balance as savings for the complainant e.g. to pay dowry.

            Held: (1) “All the facts show that the complainant was an employee of the bank with the right given to the appellant to hire and perhaps to fire him and as such the appellant as an agent of the bank. Since the vouchers were made out in the complainant’s name and the appellant signed and received the salary he acted for and on his behalf and the money became the property of he complainant. Section 262 of the Penal Code provides that: When a person receives either alone or jointly with another person, and money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it”. “The above section contrasts with section 260 where if money it received with a direction to apply it to any purpose or pay to any person specified in the direction the money is deemed to be the property of the person from whom it was received. The evidence in this case shows no such direction”. (2) “It was further argued that, if it was held that there was a contractual agreement between the appellant and he complainant for Shs. 90/- per month, the extra 110/- could not be the complainant’s property. The appellant had the right to hire but no authority to fix the conditions of service. This was fixed by the bank and as soon as the complainant was employed he became subject to those terms and conditions. He may not have known all

his rights but it cannot be said that he was not entitled to them. Under these terms the bank paid him Shs. 200/- and it was not material that the appellant received the money. If he told the complainant, that he received the money. If he told the complainant, that the received less he could properly be convicted of larceny of the balance.” “The complainant denied making any admission but agreed that he went to the appellant to borrow Shs. 600/- before he started to work to pay bride price and the appellant old him that he could not give it before he started to work. A witness testified that complainant had told him that his employer was saving for him to make up Shs. 600/- but this he also denied”. (3) “The prosecution”, therefore, give two versions of an incident, one of them supporting the defence …. Taking the prosecution’s case at its highest it must be said that it raised doubts on the point in issue. It will not have then discharged its burden and the doubt must be resolved in favour of the appellant. The finding that there was no arrangement between the appellant and the complainant for the payment of dowry is against the weight of the evidence.” (4) Appeal allowed.