PUTjLiE .T.—Gunat.unga c. The King
1952Present : Gratlaen J. and Pulle J.
GUNATUNGA, Appellant, and THE KING, Respondent
S.C. 100—D. C. (Criminal) Panadure, 176
Criminal breach of trust by public servant—Burden of proof—Joinder of ruch chargewith charge of falsifying accounts—Legality—Penal Code, ss. 392a, 467.
Upon a charge under section 392a of the Penal Code the burden restB on theprosecution to prove the ingredients of the offence of criminal breaoh of trnstas defined in section 388 and that burden, so far as the element of dishonestyis concerned, is prima facie discharged by the failure on the part of the publicofficer to prodnce the money shown in the accounts kept by him or duly toaccount therefor.
A joinder of a charge under section 392a with charges of falsification ofaccounts under section 467 of the Penal Code would not be illegal if the accountsin question had been falsified to conceal the misappropriation which is thesubject-matter of the charge under section 392a.
.^SlPPEALi from a judgment of the District Court, Panadure.
Colvin R. de Silva, with T. W. Rajaratnam, for the accused appellant.
Boyd Jaya8uriya, Crown Counsel, for the Attorney-General.
Cut. adv. vult.
January 31, 1952. Pull,e J.—
The only point of substance urged on behalf of the appellant is that. there has been a misjoinder of charges in the indictment. The appellantwas at the time material to the case the postmaster in charge of theIngiriya Post Office. On the 27th June, 1950, an examiner of postoffice accounts, duly authorized for that purpose made a demand on theappellant to produce a sum of Rs. 37,698.58 shown to be due to theCrown in the accounts kept by him. The appellant’s failure to producethe money was the subject of the first charge against him under section392a of the Penal Code. The second, third and the fourth chargesalleged that in the course of the transaction set out in the first theappellant, with intent to defraud, made false entries in accounts sentby him to the head office. It is not necessary to refer in detail to theparticulars set out in the charges relating to falsification. The casefor the prosecution was that the falsification was part of a scheme tokeep the head office ignorant of the misappropriation of the sum ofRs. 37,698.58 which was the subject of the first charge.
No objection was taken at the commencement of the trial on theground of misjoinder of charges but at a later stage it was submittedthat the joinder of the second, third and fourth counts with the firstwas illegal for the reason that the alleged falsification had no connection■whatsoever with a mere failure to produce a sum of money, when theappellant was called upon to do so by an authorized officer, and that-the iirelevaney of the falsification to any issue arising under section392a rendered it impossible to treat the falsification and the mere failureio produce the money as parts of the same transaction. The learned
PDlitiB J.—Gunatunga e. The King
trial judge overruled the objection. Thereafter the prosecution withdrewthe second and the third counts and the trial proceeded on the remainingcounts. The reason given by the prosecution for the withdrawal of thecounts referred to was to meet an allegation of embarrassment by thedefence. It is not, however, easy to reconcile the withdrawal by theprosecution of the second and third counts with the retention of thefourth count.
At the close of the case for the prosecution the appellant was calledupon for his defence and he gave no evidence. The learned DistrictJudge convicted the appellant on both counts and sentenced him onthe first count to one year’s rigorous imprisonment and to pay a fineof Rs. 1,000, in default six months’ rigorous imprisonment and to oneyear’s rigorous imprisonment on the fourth count, the sentences to runconcurrently. At the hearing of the appeal learned Counsel for theappellant conceded, and in my opinion rightly, that if an essentialingredient of an offence under section 392a of the Penal Code is thedishonest conversion of the money which the public officer concernedfails to produce when demand is made by a duly authorized officer andif, further, accounts had been falsified to conceal such misappropriation,the dishonest conversion and the falsification could be regarded as onetransaction and that a joinder of a charge under section 392a with chargesof falsification would not be illegal.
Dr. Colvin R. de Silva repeated the argument he put forward in thetrial court. When the bare wording of section 392a is examined withoutreference to section 388 and without staying to consider the reason forthe enactment of the new section there is much to commend the argumentthat the element of dishonest conversion essential to the offence ofcriminal breach of trust, as defined in section 388 of the Code, is notimported into the provisions of section 392a. This very contentionwas, however, urged by the Crown in two reported cases and was rejectedby this Court. In the case of King v. Ragal 1 Bonser C.J., said:.
” It was sought to be argued that this Ordinance (i.e., OrdinanceNo. 22 of 1889 which first enacted the section which is now numberedas section 392a of the Penal Code) altered the law in respect of criminalbreach of trust in its most essential particular. To constitute the-offence of criminal breach of trust, you must find dishonesty,/ Inmy opinion this Ordinance did not intend to make a man a criminalwho had no guilty or dishonest intent: it simply intended to facilitateproof of dishonesty, which it is often difficult to prone. Of course, if,as in many cases it occurs, a person has falsified his accounts, then,you have at once evidence of dishonesty.”
This case was followed by Porter J. in Somander v. Vduma Lebbe x..We were asked to hold that the decision in King v. Ragal 1 was wrong-as the learned Chief Justice had. travelled beyond the plain words of'section 392a and read into it provisions which only the Legislature couldhave inserted. The substance of section 392a was taken from seetion-1 of Ordinance No. 22 of 1889 which is described as " An Ordinancerelating to criminal breach of trust by public servants in' this Colony.’”
1 (1902) S N. L. R. 314.* (1924) 24 N. L. R. 146.
OHATIAEN J .—Gunatunga v. The King
As the law stood at that time it was a matter of utmost difficulty wherea shortage of money in the hands of a public servant was discoveredto specify when and what portion of the money which he is unable toaccount for was misappropriated. Even if the prosecution couldsatisfy the court that various sums of money represented by the shortagewere misappropriated between two specified dates, a charge of criminalbreach of trust could not be brought home. It was only in 1919 (videsection 7 of Ordinance No. 31 of 1919) that section 168 of the CriminalProcedure Code was amended by the addition of sub-section (2) whichreads:
“ When the accused is charged with criminal breach of trust ordishonest misappropriation of money, it shall be sufficient to specifythe gross sum in respect of which the offence is alleged to have beencommitted, and the dates between which the offence is alleged to havebeen committed without specifying particular items or exact dates,and the charge so framed shall be deemed to be a charge of one offencewithin the meaning of section 179:
Provided that the time included between the first and last of such' dates shall not exceed one year.”
1 may in passing mention that it was by the Criminal Procedure Code(Amendment) Ordinance, No. 57 of 1947, that section 168 (2) was furtheramended by extending it to misappropriation of all manner of ” Movableproperty.
Acra.in if an examination of the accounts revealed a systematic falsi-fication of entries by a public officer pointing to an embezzlement, theextent of which could only be a matter of speculation, he could nothave been charged ,_with falsification because section 467 of the PenalCode was then not in force. It was added to the Code in 1903. There-fore, as the law stood in 1889 one could not say that Bonser C.J. waswrong in holding that by enacting 392a the Legislature did no morethan facilitate proof of dishonesty which is an essential element thatthe prosecution has to establish for a conviction on a charge of criminalbreach of trust. In other words, upon a charge under section 392athe burden rests on the prosecution to prove the ingredients of theoffence of criminal breach of trust as defined in section 388 and thatburden, so far as the element of dishonesty is concerned, is prima faciedischarged by the failure on the part of the public officer to producethe money shown in the accounts kept by him or duly to account therefor.A .finding of dishonesty on the evidence taken as a whole is a pre-requisiteto a conviction. In this view of the matter the false entries in the presentcase were so intimately connected with the misappropriation that themisappropriation and the falsification could rightly be regarded as asingle transaction.
To my opinion the appeal fails and should be dismissed.
Obatiabn J.—I agree. In my opinion the legislature did not intend,by-enacting section 1 of Ordinance No. 22 of 1889 (which has since beenincorporated in Chapter 17 of the Penal Code) to create a new offence,also entitled '** criminal breach of trust ”, containing elements separate
Christie v. Mohamed Bhai626
and distinct from the elements of the substantive offence defined insection 388 of the Code. As my brother points out, the purpose ofsection 392a is merely to facilitate, in the case of public servants entrustedwith public funds, proof of the commission of an offence defined insection 388 and punishable, as an aggravated form of that offence, bysection 392. Proof of the ingredients specified in section 392a furnishesprima facie evidence of the dishonest misappropriation or conversion-of the missing funds so as to establish the commission of " criminalbreach of trust ” defined in section 388. This does not mean that theaccused is debarred from setting up any defence which would normallybe available to a person charged with criminal breach of trust. If,for instance, he can establish facts sufficient to create doubts as to theexistence of the element of dishonesty, he is entitled to an acquittal.Again, as Bonser C.J. indicates in King v. Hagai 1, it would afford agood defence if the evidence, taken as a wholej fails to satisfy the trialJudge that, notwithstanding the shortage of the cash involved, therehad in fact been a conversion of public funds. I think, however,that the headnote to King v. Ragal goes too far when it statesthat “ to justify a conviction there must be direct evidence (that is,presumably, in addition to the facts specified in section 392a) ofdishonesty or such conduct on the part of the accused as would leadto the inference of dishonesty or dishonest intention ”. On thecontrary section 392a is specially designed to relieve the prosecutionof the burden of proving any facts other than what is expressly mentionedin the section in order to establish prima facie the dishonest conversionof public funds on a date or dates which the Crown is not required (andmay well find it impossible) to specify. Indeed, by a stktutory: fiction,section 392a regards the date on which the accused “ failed to pay overor produce .. or to account for ” the missing funds as the date of
the actual commission of the substantive offence, namely, criminalbreach of trust by a public servant.,
Dr. Colvin B. de Silva concedes that, if section 392a is to receive theinterpretation which my brother Pulle and I have adopted ? no plea ofmisjoinder arises. I agree therefore that the appeal must be dismissed.
GUNATUNGA, Appellant, and THE KING , Respondent