Meliki s/o Mayala v. R., (PC) Crim. App. 246-M-68, 19/7/68, Seaton J.

Meliki s/o Mayala v. R., (PC) Crim. App. 246-M-68, 19/7/68, Seaton J.

Accused, by a written contract, agreed to build a home for the complainant, who was to supply the building materials. The complainant became unsatisfied with the progress made and terminated the accused ’s contract. Complainant demand return of four bags of cement, which accused has sold to a third party before the complainant ended the contract.

            Held: The essential element of section 273, and all other cases of theft in the Penal Code, is fraudulent taking or conversion. Here, there was no evidence that the contract required the accused to use the very bags supplied to him for building the house. The act of the complainant in terminating the contract deprived the accused of the opportunity of replacing the bags; his fraudulent intent was not proved. Conviction quashed.