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Mischief under Indian Penal Code and Conversion in torts-A

comparative study on remedial measures
IPC PROJECT

MOUNIKA .K
2013069
3RD SEMESTER

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Visakhapatnam

ABSTRACT

Topic of Project: -Mischief under IPC and Conversion in Torts-A comparative study on remedial measures.
Type of Review: In the present context the method followed is secondary review as all sorts of information
have been collected from secondary sources.
Reasons for selecting this topic: The reason behind selecting this topic is to get a clear understanding of the
concepts Mischief and Conversion, similarities and differences between both the concepts.
Scope of the Project: This paper tends to study Section 425 to section 440 of IPC and
Main issues to be dealt with: The main issues that are to be dealt in this project are remedial measures for
mischief and conversion.
Research Methodology: The method of Doctrinal Research has been followed.

Objective:

What is the difference between mischief and conversion

What sections are taken into consideration for mischief
What are the remedial measures considered
Elements required for mischief and conversion

This project would showcase the sections relating to mischief, i.e section 425 to section 440 of INDIAN
PENAL CODE .It also give a detail information about conversion which is a common law tort. A conversion
is a voluntary act by one person inconsistent with the property rights of another whereas mischief requires the
intention of a person to cause the wrongful loss or damage to general public. Mischief may also be created by a
person with change of situation of property with intention to injure to another person. Both have various
remedial measures on which the project would mainly focus. Cases would be quoted as illustrations to give
proper understanding of the topics.

INTRODUCTION
Conversion also known as Trover is a common law tort which consists in wilfully and without any justification
dealing with the goods in such a manner that another person, who is entitled to immediate use and possession of
the same, is deprived of that whereas whoever with intention to cause or knowing that he is likely to cause
,wrongful loss or damage to public or damage to the public or to any person ,causes the destruction of any
property therefore destroys or diminishes its value or utility or affects it injuriously ,commits Mischief 1.
A conversion is a voluntary act by one person inconsistent with the property rights of another whereas mischief
requires the intention of a person to cause the wrongful loss or damage of public property. Conversion is purely
a civil wrong and elements of a conversion are:
-the plaintiff has clear legal ownership or right to possession of property at the time of conversion
-the defendants conversion by a wrongful act or disposition of plaintiffs property rights

It is not essential to the offence of mischief that the offender should intent to cause the loss or damage to the
owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows he is likely to cause,
wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that
person and others jointly2.

Criminal conversion is a crime, exerting unauthorized use or control of someone elses property, at a minimum
personal property, but in some jurisdictions also applying to type of real property, such as land, to patents,
design rights and trademarks. It differs from the theft in that it does not include the element of intending to
deprive the owner of permanent possession of that property. It involves criminal law and not civil law.For
example, tapping someones secured wireless LAN or public utility line

1 Page no:359,CHAPTER 19, ,LAW OF TORTS BY DR R.K.BANGIA,23 RD EDITION,2013

2Page no:248, THE INDIAN PENAL CODE,1860,2013 PUBLICATIONS

CONVERSION
Conversion is an interference with anothers ownership of property .It is a general intent tort, not a specific
intent tort. That means that the intent to take or otherwise deal with the property is enough to support the claim,
it doesnt matter whether the defendant knew that the act would constitute interference with the property of
another. Therefore, the defendants innocent reason for the act cannot be used as an excuse. It does not matter
the defendant made a mistake3. The standard remedy for conversion is a judgement for damages in an amount
equal to the fair market value of the property. Punitive damages are also possible, because conversion is an
intentional tort. Remedy for conversion is usually in the form of damages equal to the fair market value of the
chattel at the time of conversion. The exact measure of compensation due to a plaintiff whose goods have been
wrongfully converted may be merely nominal if the wrong is technical and the defendant can return the goods;
it may be limited to the actual damage where the goods can be returned, but the wrong is substantial; but in
ordinary cases it is the full value to the owner of the goods of which he has been deprived.

Special damages:
When the conversion occurs, the injured party should receive full compensation for actual losses. Special
damages may be recovered in an action for conversion for any injury proximately resulting from the conversion.
The damages can consist of:
-The additional value of a chattel due to additions or improvements made by the converter not in good faith.
-The amount of any further pecuniary loss of which the deprivation has been a legal cause.
-Interest from the time at which the value was fixed.
-Compensation of loss or use not otherwise compensated.

Mitigation:

3 En.m.wikipedia.org/wiki/conversion

The defendant is allowed to show the existence of facts which would make it unjust to allow the plaintiff to
recover full value. Ordinarily, the defendant is not allowed to deduct maintenance and upkeep expenses which
would normally accrue taking care of the converted property. Return of the property with acceptance by the
owner can dismiss the action, or be used as a mitigating fact. However, the mere offering of the convert
property does not necessarily dismiss all damages which may have occurred based on the original tort. Action
under legal process can be a complete defense and can mitigate damages.

Wrongful intention not necessary:

A person dealing with the goods of another person in a wrongful way does so at his own peril and it is no
defence that he honestly believed that he has a right to deal with the goods or he had no knowledge of the
owners right in them4.
Roop Lal vs Union of India:
Some military jawans found come firewood lying by the river side .they thought that the wood being unmarked,
probably belonged to the government and they had every right to take away the same. They took away the wood
in the military vehicle for camp fire .Ultimately, it turned out that the wood belonged to the plaintiff. In an
action against the Union of India for the tort of conversion committed by its servant, it was held the fact the
jawans did not intend to commit the theft did not absolve the state from its liability.
More cases: Consolidated co vs Curtis , Hollins vs Fowler

Immediate right of a possession or use necessary:

For an action for conversion, it is also necessary that the plaintiff must have a right to the immediate possession
of the goods at the time of their conversion. If the plaintiff cannot prove his right of possession, an action for
conversion will fail.
Against a person in possession, the defendant cannot take the defence of jus terti, which means the defendant
cannot take the advantage of the fact that some third person has a better title to the goods5.
4 Page no:360,CHAPTER 19, ,LAW OF TORTS BY DR R.K.BANGIA,23 RD EDITION,2013

5 Page no:361,CHAPTER 19, ,LAW OF TORTS BY DR R.K.BANGIA,23 RD EDITION,2013

Cases: Parmananda Monhanty vs Bira Behera and other, Gordan vs Harper

Denial of plaintiffs right to goods necessary:

The defendants intended act must amount to denial to the plaintiffs right to the goods to which he is lawfully
entitled. Removing the goods from one place to another may be trespasss but it is not a conversion.\
Case: Fouldes vs Willoughby

An act of conversion may be committed6:

1.
2.
3.
4.
5.

When property is wrongfully taken

When it is wrongfully parted with
When it is wrongfully sold
When it is wrongfully retained
When it is wrongfully destroyed

When property wrongfully taken:

The taking need not be with an attention of acquiring a full ownership. It is enough if any interest is claimed
inconsistent with the right of the person entitled. The taking may be constructive merely, but a taking
unaccompanied by an intention to exercise permanent or temporary dominion is not conversion. Actually
dealing with anothers goods as owners, for however a short time, under a mistaken supposition of being
lawfully entitled, or even with the intention of benefiting the owner, would amount to conversion7.
Case: Mcombie vs Davis

When it is wrongfully parted with:

If a man hands over goods to another so as to give him some right over the property itself, whether as owner or
dominus pro tempore, it amounts to conversion. Every person guilty of a conversion, who without lawful

6 WINFILED AND JOLOWICZ,TORTS,12 EDITION,PG NO:479

7 WINFILED AND JOLOWICZ,TORTS,12 EDITION,PG NO:169

justification deprives a person of his goods by delivering them to someone else so as to change the possession.
The giver and receiver will be liable for joint tort feasors.

When property wrongfully sold:

When the property is wrongfully sold although not delivered in market overt the property passes to the
purchaser by sale, which is therefore equivalent to physical destruction, Where the pledgee sells property
without notice to or authority of the pledger, it will amount to conversion.
Case: Carritt Moran and Co. Vs Manmatha

When property wrongfully retained:

Where a person has possession of anothers chattel, and refuses to deliver it, this amounts to conversion. The
plaintiff must prove that the defendant having it in possession refused to give it up on demand made by him.

When property is wrongfully destroyed:

Every wilful and wrongful destruction is chattel, or wilful damage, whereby the owner is deprived of the use of
it in its original state is a conversion of it8.

Defenses:1.
2.
3.
4.
5.

Lien, either general or public

Right of stoppage in transit
Denial of plaintiff right to property, mere denial is not converison
Distress, goods under execution
Sale in market overt ,sale without titles

8 WINFILED AND JOLOWICZ,TORTS,12 EDITION,PG NO:170

MISCHIEF
Section 425 to 440 of the code relate to the offence of mischief. Section 425 defines mischief and section 426
prescribes the punishment thereof. Section 427 to 440, in which gravity of the offence is aggravated owing the
greater value of wrongful loss or damage of the property than in ordinary cases of mischief.
Punishments for different degrees of the offence of mischief:
Value of the property destroyed (section 427 -429)
Mode of mischief, by killing, poisoning or by fire or explosive ,or after preparation to cause

hurt(section 428 -440)

Utility of the subject of mischief (section 430-431),houses (section 436)
Its probable consequence by the destruction of landmarks, light-houses, etc.

Aggravated mischief:
Damage of property valued at Rs 50 and upward. (section 427,IPC)
Mischief in regard to animals (section 428-429,IPC)
Mischief in regard to supply and public works (section 430-434,IPC)
Mischief by fire (section 435-436.IPC)
Mischief in regard to docked vessels (sections 437-438,IPC)
Mischief in regard to any vessel with the intent to steal (section 437-438 ,IPC)
Mischief with preparation for causing death ,hurt or wrongful restraint, or fear of such
death, hurt or wrongful restraint (section 440, IPC)9

Essential Ingredients of Mischief under IPC:

(1) Intention or knowledge of the likelihood to cause wrongful loss or damage to the public or to any person.
(2) Causing the destruction of some property or any change in it or in its situation; and
(3) Such destruction or change must destroy or diminish its value10.

9 Indian penal code,prof S.N Mishra,10 TH EDITION,PG NO:795-797

10 Indian penal code,prof S.N.Mishra,10 th edition ,PG NO;793

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Mischief requires the intention of a person to cause wrongful loss or damage to general public or any person.
Mischief may also be created by a person with change of situation of property with intention to injure to another
person. In the case of Nagendra Nath Roy v. Bijoy Kumar Das Verma11, the Court held that mere negligence is
not mischief. Negligence followed with intention to cause wrongful loss or damage will amount to mischief.
Section 426 refers to punishment for mischief, whoever commits mischief shall be punished with imprisonment
of either description for a term which may extend to three months, or with fine or both.
Case: Nabin Chandra Gogoi vs state of Assam12

Defenses:Section 96 defines that nothing is an offence which is done in the exercise of the right of private defense, while
section 97 deals with the subject matter of the right of private defense of body and property and lays down the
extent of the right of private defense, proclaims that every person, subject to restriction contained in section 99,
has a right to defend his own body and the body of another, against any offence effecting human and right to
defend the property of his own for offence like theft, robbery and mischief. Section 105 is a continuation of
private defense of body and property

Exceptions:-If a person exercising the right of private defense has the better of the aggressor, provided he does not exceed it
his right because the movement he exceeds it he commits an offense.
-There is no defense available of right of private defenses when there is a free fight between two parties or
individual, one another using unlawful force against each other.

11 AIR 1930 Cal 392

12 AIR 1961 Assam 18.

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Conclusion
Conversion is an act of willful interference without a lawful justification any chattel in a manner inconsistent
with the right of another, where by that other is deprived of the use of possession of it whereas Mischief is done
with intention to cause or is likely to cause wrongful loss or damage to the person, public and property and
diminishes its value. Mischief is the direct force used and injury inflicted where as conversion is the deprivation
of the use. The court of judicature is privy council for torts cases and for criminal cases it is session court.
Compensation would be awarded for conversion cases whereas for criminal cases punishment would be given
or fine.

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