Court finds accused guilty of corruptly attempting to take money under false pretenses regarding stolen property.

[*334] 1973 October 17

(BOYIADJIS, S.D.J.)

IN THE DISTRICT COURT OF KYRENIA

Kyrenia Police,

v.

Evripides Theofanous Cleanthous,

Accused.

(Case No. 218/73).

Criminal Law - Corruptly attempting to take money under pretence or upon account of helping complainant to recover his property which had been stolen - Ingredients of the offence - Whether the property in question was stolen - And whether accused took the money under a corrupt pretence and not honestly, meaning to detect the thief if possible - Sections 126, 366 and 367.of the Criminal Code, Cap. 154.

Police Sergeant Michaelides, for the Prosecution.

C. Theocharides, for the Accused.

JUDGMENT

The following judgment was delivered by: -

BOYIADJIS. S.D.J.: In June, 1972, the compressor [*335] of P.W.8, valued about £2,000. - was stolen at Nicosia by person or

persons unknown. The case was reported to the police who undertook investigations. P.W.8 spread around a promise that he would pay an amount of money to any person who would give him information leading to the recovery of his compressor. Despite the efforts of the police the case remained undetected until the time material to these proceedings.

On 5.7.1972 P.W.1, who is the brother of P.W.8, was driving his lorry along Kyrenia-Nicosia road when he met an oncoming lorry driven by the accused who signalled him to stop. The two men alighted and the accused told P.W.1 that he wanted to talk to him about a case which concerns him much; it was about the compressor stolen from P.W.8. The accused said that he himself knew the approximate place where the compressor was and that another person whom he did not name, knew the exact place thereof. He then asked if they were willing to pay money for the information, and when he received an affirmative answer, a meeting was arranged for the afternoon between P.W.8. and the accused at his village of Vassilia.

On the same afternoon, P.W.8 anxious to recover his property, went and found the accused at Vassilia. The accused there stated that he knew where the compressor was and assured P.W.8 that it was his compressor. The compressor was somewhere near them, accused added,

without disclosing anything else. He first asked to be paid £500.- by P.W.8 in consideration of his taking him to the place [*336] where the

compressor was; he then reduced the amount to £200. - and added that he would have paid the said sum to his father who had first seen the compressor and he also wanted another £50.- for himself. Finally P.W.8 issued to accused a cheque for £200. - which has been produced before me and which is marked exhibit 2. They then drove to locality ‘Limnitis’, an isolated place off the main road, where the compressor was found on a hill; P.W.8 identified his property at once although certain parts were missing from it, P.W.8 asked the accused whether he had anything to do with the theft and warned him that he would report the whole matter to the police, adding that if he is really proved innocent he would have paid him another £50. - which he had first asked. The accused assured P.W.8 that he is clear but begged him not to mention his name to the police. They then returned to Vassilia and from there P.W.8 went to Lapithos police station and reported the matter.

When the irresistible curiosity and the strong wish to recover his stolen property subsided, P.W.8, on second thought, considered the payment he made to the accused by his cheque, as unjustified and stopped payment thereof.

Next morning, the accused sent an agent to cash the cheque on his behalf from a Branch of the Bank of Cyprus 25 Ltd., at Ayies Dometios. The cashing of the cheque was refused and the accused visited P.W.8 to his house and both then went to the offices of the Co-operative Credit Bank of [*337] Karavas where the police arrived and arrested the accused.

The above are my findings on the factual aspect of the case and came from the evidence of 8 prosecution witnesses, each one of whom has satisfied me of his truthfulness. Most of these facts are also admitted by the accused in his evidence and in his statements to the Police exhibit 1 and exhibit 3.

The accused gave evidence on oath and called no defence witnesses. In so far as his evidence is contrary to my above findings, it has been discarded by me as untrue.

The present charge is for an attempt to commit the offence created by section 126 of the Criminal Code, presumably because the accused did not manage to cash the cheque and lay hands on the money.

Section 126 reads:-

“Every person who corruptly takes any money or reward, directly or indirectly, under pretence or upon account of helping any person to recover any property which has, under circumstances which amount to felony or misdemeanour, been stolen or obtained in any way whatsoever, or received, is (unless he has used all diligence to cause the offender to be brought for trial to the same) guilty of felony and is liable to imprisonment for 5 years”. [*338]

The wording of our section 126 is identical to section 34 of the Larceny Act, 1916, as amended by the Criminal Justice Act, 1948, in England.

In the very old case of R. v. King (1845) 1 Cox 36, on an indictment under 7 & 8 Geo. 4, c. 29, S.J8 (rep.), for corruptly receiving money from S under pretence of helping ;him to recover a watch which had been stolen from him, Tindal C.J. in his direction to the jury said: “The questions for you are - first, whether the watch was stolen; and secondly, whether the prisoner did take the prosecutor’s money under a corrupt pretence, and not honestly meaning to detect the thief if possible. If you think that he had any object of a wicked nature at the time then you will say that he is guilty; but if you believe that he honestly meant to use such means as he could to bring the offender to justice, then your verdict must be not ‘guilty’.

Counsel for the accused submitted that the circumstances in this case do not show that the accused took the cheque - exhibit 2 “corruptly” within the meaning of section 126.

The term “corruptly” in section 126 does not carry any meaning other than its literary or ordinary meaning. According to Webster Dictionary “corrupt” means “to cause to not, pollute, or infect; to bribe; to lose purity; vitiated; perverted; debased; impure”. “Corruption” means “wickedness; loss of purity or integrity”! [*339]

The money or reward is “corruptly” taken if it is received dishonestly, with a false and sinister design, and with no intention to detect or discover the thief. The word “corruptly” is used in section 126 with reference to the state of mind of the accused at the material time. The accused in the present case first told the owner’s brother - P.W.1 that he knows the approximate place where the compressor was and that a third person knew the exact place. Later in the same day the accused told the owner - P.W.8 that he knew the exact place found by his father and wanted £200. - to pay over to his father. The accused had a private conversation with his father in the presence but not in the hearing on P.W.8, not about the compressor as he left P.W.8 to believe, but about their goats as he alleged in his evidence. The accused admitted in the witness box that he never intended to pay over any money to his father. He carefully evaded throughout his conversation with P.W.1 and P.W.8 to state where the compressor was before he actually put the cheque in his pocket. The accused begged P.W.8 not to mention his name to the police. He alleged that he did not go to the police to inform them about the presence of the compressor at locality ‘Limnitis’ because he was not sure that that was the compressor of P.W.8; yet, in the afternoon of 5.7.1972 at Vassilia he had assured P.W.8 that the compressor which was somewhere near them at the time, was the property of P.W.8 and nobody else’s, and he asked for and received the cheque in consideration of taking P.W.8 to it. [*340]

Can it be said in the aforesaid circumstances that the accused had an honest intention or that he used all diligence to cause the thief to be brought to justice?

The answer to the aforesaid questions is surely in the negative. Not only the accused admittedly did nothing at all to cause the thief to be brought to justice but he emphatically stated to P.W.8 that he did not wish to be interrogated or approached by the police. I cannot see how accused could contribute to the bringing of the thief to justice by hiding all information he had from the police. I am satisfied that the accused was only concerned with the obtaining of the highest possible reward under several pretences from P.W.8 talking advantage of the agony and strong wish of the victim of the theft to recover his property.

In the circumstances of this case the accused took ‘corruptly’ the cheque exhibit 2 and attempted to cash it at the Bank through another person. Since the prosecution has further proved that the compressor had been stolen, all the ingredients of the attempt to commit the offence under section 126 have been proved and I find the accused guilty as charged.

Accused found guilty as charged.