HOWARD C.J.—Dias v. Wijetunge.
Present: Howard C.J.DIAS, Appellant, and WIJETUNGE, Respondent.
271—M.C. Colombo, 4,967.
Evidence—Charge of cheating—Proof of intention by evidence of similar acts—Evidence of System—Penal Code, s. 400—Evidence Ordinance, as. 14and 15.
Where the accused was charged with cheating and the complainant,in order to prove fraudulent intention on the part of the accused, ledevidence of a false representation made by the accused to another personin connection with another transaction—
Held, that the evidence of the false representation was not admissibleunder section 14 of the Evidence Ordinance unless there was a similarrepresentation made in the transaction which was the subject-matter ofthe charge.
Held, further, that in order to prove system under section 15 of theEvidence Ordinance evidence of one similar transaction alone is notsufficient.
PPEAL against a conviction from the Magistrate’s Court ofColombo.
H. V. Perera, K.C. (with him H. W. Jayewardene and C. E. L.Wickremesinghe), for the accused, appellant.
L. A. Rajapakse, K.C (with him D. A. Jayasuriya and G. T.Samarawickreme), for the complainant, respondent.
Cur. adv. vtdt.
-June 3, 1946. Howard C.J.—
The appellant appeals from his conviction by the Magistrate’s Courtof Colombo on a charge of cheating the complainant in respect of a sumof Rs. 1,000, contrary to the provisions of section 400 of the Penal Code.The complainant in his evidence stated that on April 27, 1945, the appel-lant undertook to deliver to him on May 6, 1945, the articles of furniturein his house specified in the plaint. In consideration of that under-taking the complainant paid to the appellant Rs. 1,000, in cash Rs. 300and by cheque Rs. 700. The complainant further stated that he hadbeen to the appellant’s house on several occasions, but he had not receivedeither the furniture or the return of his money. It was also proved thatin April, 1945, the Kotalawella Estates Co., Ltd. filed an actionagainst the
HOWARD C.J.—Dicta v. Wijetunge.
appellant. In .June, 1945, the appellant was examined under section 219of the Civil Procedure Code and during such examination stated thatthere were no articles of furniture belonging to him in his house. Evidencewas also tendered for the prosecution that on February 12, 1945, theappellant offered to rent to one T. P. Balasooriya a house No. 12, Kotala-wala Terrace, together with the furniture for Rs. 75 a month. Bala-sooriya says that he paid the appellant Rs. 300 in advance, but the latterhad failed to put him in possession or pay back the Rs. 300. Thefurniture to be hired, according to Balasooriya, consisted of the identicalarticles that were to be sold to the complainant in this case. Bala-sooriya in cross-examination stated that he told the appellant onFebruary 29, 1945, that he did not want the house, but only his moneyback. Balasooriya also said that the appellant held him to his contractand refused to give him back his money. Further evidence was tenderedby a man called Mohideen to the effect that he advertised for a house inFebruary, 1945. The appellant replied to the advertisement and toldhim that he had a house fully fumisned which he would let. Mohideenand the appellant went to the house at 12, Kotalawala Terrace.There the appellant told Mohideen that he should buy the furniture if hewas renting the house. Mohideen agreed and paid the appellant Rs. 350as an advance out of the sum of Rs. 2,250 which he agreed to pay for thefurniture. The articles of furniture seem to be identical with thosethat the appellant agreed to sell to the complainant. Mohideen furtherstated that up to date the appellant has neither given him the furniturenor returned his money.
It is contended by Mr. Perera on behalf of the appellant that theevidence of Balasooriya and Mohideen was not admissible. And withoutsuch evidence it has not been established that there was any fraudulentintention on the part of the appellant. Mr. Rajapakse on the other handmaintains that the evidence of Balasooriya and Mohideen was admissibleunder section 14 of the Evidence Ordinance as showing intention. Alsounder section 15 of the Evidence Ordinance inasmuch as there is aquestion as to whether the contract between the complainant and theappellant was made by the latter with the intention of defrauding thecomplainant. It is argued that this transaction formed part of a series ofsimilar occurrences in each of which the appellant was concerned and thefact that it did so is relevant.
In Sex. v. Seneviratne1 it was held that the proving of one isolatedact apart from the act set out in the charge does not amount to a proofof the fact that there was a series of similar occurrences of which the actcharged was one within the meaning of section 15 of the EvidenceOrdinance. The evidence of Balasooriya is to the effect that he paid theappellant 4 months rent in advance for the house and furniture, thaton February 28th he told the appellant he did not want the house andthat the appellant held him to his contract. In my opinion this is not asimilar occurrence to the contract made by the appellant with thecomplainant which was for the sale of furniture. Moreover Balasooriyaon his own admission broke the contract. Hence this transaction does notbear the taint of fraud. Evidence of it was not admissible either as1 ( 1925) 27 N. L. R. 100.
HOWARD C.J.—Dias v. Wijetunge.
part of a series of similar occurrences under section 15 or of intentionunder section 14 of the Evidence Ordinance. Evidence of the appellant’stransaction with Mohideen is not -by reason of the decision in Rex. v.Senemrathe in itself sufficient to prove system.
There now remains for consideration the question whether the evidenceof Mohideen was admissible to prove intention. The argument putforward by Mr. R&japakso is that the transaction between the appellantand Mohideen is a fact which shows the existence of a particular state ofmind, namely, the intention of the appellant to defraud the complainant.According to Mohideen the latter in February, 1945, agreed to buy fromthe appellant furniture consisting of a drawing room, bedroom anddining room suites of Apothecaries make. The articles of furniturecomprised in these suites seem to be similar to those which the com-plainant said were sold to him by the appellant on April 27, 1945. Withregard to this transaction Mohideen says that the appellant has neithergiven him possession of the furniture nor returned his money. In thecase of the contract between the complainant and the appellant theformer relies on a false representation that the furniture would bedelivered to him on May 6, 1945. Only some of the furniture accordingto the complainant was of Apothecaries make. In the case of theMohideen transaction the furniture was all of Apothecaries make. It hasnot been established that the appellant was, in each transaction, sellingthe same furniture. Nor can it be said there was a similar representationmade on the occasion of each transaction. Mr. Rajapakse has cited anumber of cases, but I am of opinion that none of them have any applica-tion to the facts of the present case. In Hex. v. Wilks 1 the accused inorder to induce a shopkeeper to part with a fur coat on credit showed thelatter a bill head with the words “ Wholesale and retail Merchant ”on it. It was held that the fact that three months previously the accusedobtained goods on credit from another shopkeeper by using a similarhandbill was admissible in evidence to prove intent to defraud. In thiscase there was a false representation of an existing fact, namely, that theaccused was a wholesale and retail merchant. Similarly in Rex. v. Smith 2the evidence indicates that the accused made a false representation as toan existing fact, namely, that he came from the Mercantile Syndicate, Ltd.Evidence that'he used the same false representation to obtain goodsfrom another shopkeeper was held to be admissible in evidence. InSex. v. Wyatt3, Makin v. Attorney-General* evidence of other similaroccurrences was admitted to prove a systematic course of conduct. AsI have already pointed out evidence of one similar transaction is notsufficient to prove system. I am of opinion that the Mohideen transac-tion was not admissible and without such evidence there is no proof offraud on the part of the appellant.
For the reasons I have given the appeal must be allowed and theconviction set aside.
(1914) 10 Criminal Appeal Reports 16.(1905) 92 Law Times 208.
(1904) 1 K. B. 188.(1894) Appeal Cases 57.
DIAS , Appellant, and WIJETUNGE , Respondent+