GUNASEKARA J.—Gnanamultu v. Thangiah
^952Present: Gunasekara J.
S. GNANAMUTTU, Appellant, and THANGIAH(Inspector of Police), Respondent
S. G. 777—M. C. Kalmunai, 7,548"
Notaries Ordinance (Cap. 91)—Breach of paragraph (a) of rule (35) in flection 30—
Burden of proof.
The charge against the accused was that he did “ being a notary and notbeing a proctor fail to live and hold office at the place approved by the Governorby warrant ” , in breach of paragraph (a) of rule (35) in section 30 of the Notaries• Ordinance.
Held, that there was no burden on the prosecution to prove that the accusedwas not a proctor. The burden was on the defence to prove that he was.
XXPPEAL from a judgment of the Magistrate’s Court, Kalmunai.
S. Nadesan, for the accused appellant.< '
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
^August 29, 1952. Gunasekara J.—
This is an appeal by a notary against a conviction of a breach of para-graph (a) of rule (35) in section 30 of the Notaries Ordinance (Cap. 91),punishable under section 31 of that Ordinance. The charge upon whichThe was tried alleges that he did “ between 1st March and 15th July,1950, being a notary and not being a proctor fail to live and hold office.at the place approved by the Governor by Warrant dated 5th November,1944, to wit Saindamaruthu in Karavaku pattu of Battycaloa District ”.The judgment however states that the charge alleges an offence committed“during the period 1.3.49 to 15.7.49”; and the question that theJearned Magistrate has considered is whether the appellant committedthe alleged offence in that period and not whether he committed it ayear later as alleged in the charge. At the hearing of the appeal I invitedthe learned Crown Counsel’s views on the question whether this circum-stance vitiated the conviction and I agree with his submission thatthere has only been an error in the charge that has not occasioned afailure of justice. The period alleged in the report under section148 (1) (6) of the Criminal Procedure Code, by whiejx the proceedingswere instituted, is 1st March to 15th July, 1949, and the record of the-evidence indicates that the prosecution and the defence presented theircases upon the footing that that was the period alleged in the charge-as well. The point that the appellant has been convicted of an offencewith which he was not charged has not been taken in the petition of-appeal and was not taken in the argument for the appellant; no doubt
CCTSASEKARA J.—GnanatnuUu v. Thangiah
for the reason that the parties as well as the Magistrate understoodthat the appellant was tried on a charge of having committed an offencein 1949 and not in 1950. There has been a clerical error in the chargethat has not misled the appellant and which, in terms of section 171 ofthe Criminal Procedure Code, cannot be regarded as material, and cannot,in terms of section 425, be a ground for reversing the judgment underappeal.
The learned Magistrate held that during the period in question theappellant did not live at Saindamaruthu but lived at Kallar, six milesaway. The main ground of appeal was that the finding that the appellantdid not live at Saindamaruthu is erroneous, and that proof that he livedat Kallar is insufficient to establish the allegation that he committeda breach of the rule by failing to live at Saindamaruthu, for that wouldnot exclude the possibility that he had a residence at each place. Thecharge is not that he contravened the rule by living at Kallar.
The appellant was appointed a notary by a warrant under the handand seal of the Governor dated the 5th November, 1944, which authorisedTrim to practise in the Batticaloa District “ with residence and office atSaindamaruthu”. Prom that time until the time of the trial in 1951lie was the tenant of two rooms adjoining each other in a building atSaindamaruthu owned by one Parihari, and one of these rooms heTised as his office throughout that period. The prosecution soughtto prove by the production of householders’ lists that the other roomwas occupied by his clerk, one Ponniah. This fact was establishedbeyond doubt, however, by the evidence of Parihari, who was calledon behalf of the appellant and whose evidence on this point was acceptedby the learned Magistrate. This witness stated that of the two rooms■one was occupied by the clerk and his family, consisting of his wife andson, and the other by the appellant. According to him, at the time•when he gave evidence, which was the 4th June, 1951, the clerk’s wifewas not there, having left two months earlier. Under re-examinationlie said that she had come into occupation of that room about 7 years^previously—that is to say, in 1944. The appellant himself admittedthat Ponniah and his wife and son occupied the room adjoining the officebut denied that they did so in the period 1948 to 1949. This denialwas disbelieved by the Magistrate.
It is common ground that at no time in the years 1944 to 1951 had the.appellant’s name been entered in the householders’ lists in respect of therooms in Saindamaruthu. The prosecution adduced evidence to theeffect that in respect of the period June 1947 to June 1950 his namehad been included annually in the lists relating to a house in Kallar, whereadmittedly his wife and children were living, and that in those lists he haddescribed himself as the chief occupant of that house. The appellanthimself admitted that in the six and a half years during which he hadhis office at Saindamaruthu he continued to enter his name in thehouseholders’ lists as the chief occupant of the house at Kallar. Hehas also been registered as a voter in the Periya Kallar Ward of theKaravaku North Village Committee area upon the footing that he had."been resident in Kallar for a continuous period of six months in the
GTJN"ASEKARA J.—Gnanamutlu v. Thangiah
period 1st March, 1947, to 31st August, 1948, and at an election heldin April, 1949, he was elected to represent that ward. He has not beenregistered as a voter in respect of Saindamaruthu, which is a ward ofthe Karavaku South Village Committee area.
A prosecution witness named Mustapha, who was a clerk in the officeof the Divisional Revenue Officer and who lived in Saindamaruthu,gave evidence to the effect that on his way to and from the office heregularly met the appellant riding a bicycle, with a bag on its luggagecarrier. He himself went daily to his office between 6 and 9 in themorning and returned between 4.30 and 6 in the afternoon, and he wouldmeet the appellant in the mornings riding towards the appellant’s officefrom the direction of Kalmunai which is on the way to Kallar, and in theopposite direction in the evenings. He used to meet him in this way,he said, in 1949 and during a period of about 2 to 3 years before the•middle of July, 1949. A village headman, who lives in a house thirtyyards away from the appellant’s office and within sight of it, also gaveevidence to the effect that he had seen the appellant riding a bicyclein the direction of Kalmunai and away from his office in the evenings,and towards his office from the direction of Kalmunai in the mornings,and that he used to carry a suitcase on the luggage-carrier. The evidenceof these two witnesses about the appellant’s movements was notcontradicted, but the appellant explained that in the period during whichhe had his office at Saindamaruthu, from 1944 to the time of the trial, hohad his morning tea and dinner at a hotel in Kalmunai about a milefrom his office, and that he would go there in the mornings at 6.30 or 7and return to the office after his morning tea and go again for dinnerat 5.30 or 6 p.m. and return at about 8 or 8.30 p.m. The learned.Magistrate disbelieved this explanation.
The other witnesses who were called for the prosecution gave evidenceto the effect that the appellant was a resident of Kallar. One was a•retired teacher named Kanagasabai who had lived all his life atKallar and the other was the Chairman of the Village Committee ofKaravaku North. They gave evidence in June, 1951, and the formerstated that at that time the appellant had been living in Kallar for 3&to 40 years, and the latter that to his knowledge he had been living there-for about 12 years. Each of them had contested the appellant at aVillage Committee election, and the appellant suggested that they had agrudge against him and that their evidence was false. According tohim, from the time when he opened an office at Saindamaruthu in1944 he slept either in the office or in the room adjoining it, and visitedKallar only on Sundays. The learned Magistrate has considered this-evidence and the other evidence called for the defence upon whichthe appellant relied for corroboration of it, and he has accepted theevidence that during the period in question the appellant lived at Kallarand not at Saindamaruthu, and has disbelieved the appellant.
There is no ground for disturbing the learned Magistrate’s findings;on the questions of credibility of evidence that arose for his decision.The evidence accepted by him establishes beyond doubt that in the period1st March to 15th July, 1949 (and indeed during the whole of the period
ROSE C.J.—LfineroUe r. Perera
November, 1944, to May, 1951) the appellant was the tenant of two roomsat Saindamaruthu, one of which was used by him as his office and theother as quarters for his clerk, and that neither of them was used orintended to be used as a place of residence for himself, and further thathis only place of residence was at Kallar. In my opinion the learnedMagistrate’s finding that at the material time the appellant failed tolive at Sainaamaruthu must be affirmed.
Mr. Nadesan also contended that the conviction is bad for the reasonthat there is no evidence that the appellant was not a proctor. I do notthink that this case is distinguishable from the case of Perkins v.Dewodasan1 where it was held that in a trial on a charge under section 41of the Medical Ordinance No. 26 of 1927 (now section 39 of Cap. 90)the burden of proof on the issue as to whether the accused was a medicalpractitioner lay on the accused. There was no burden on the prosecutionto prove that the appellant was not a proctor. The burden was on thedefence to prove that he was.
The appeal is dismissed.
D. S. GNANAMUTTU, Appellant, and THANGIAH (Inspector of police ), Respondent