Section 136 - Distinction between stealing and false pretences

(1) Where the owner of a thing, or a person having authority to part with the ownership of that thing, gives consent to the appropriation of it by the accused person, then, although the consent has been obtained by deceit, the accused person shall not be convicted of having stolen the thing, but may be convicted of the criminal offence of having defrauded by false pretences, if the acts amounted to the criminal offence.

(2) The consent to be proved by the accused person for the purposes of subsection (1), is an unconditional consent to the immediate and final appropriation of the thing by the accused person, by way of gift or barter, or of sale on credit to the accused person.

Illustrations

Subsection (1)

1. A, intending fraudulently to appropriate a horse belonging to B, obtains it from B, under the pretence that A wants it for a day. Here A, commits the criminal offence of stealing.

2. A, intending to defraud B of a horse without paying for it induces B to sell and deliver it to A without the present payment, by a false pretence that A has the money for the payment at A’s bank. Here A commits the criminal offence of obtaining by false pretence but not of stealing.