PAT HIRANA, J.—Sumanadasa v. The State
Present; Pathirana J., Ismail J. and Weeraratne J.
H. SUMANADASA v. THE STATES.C. 26/74—D.C. Balapitiya, 465/53548
Criminal Law—Criminal breach of trust—essential. elements to be■proved—Penal Code S. 329.
The appellant, the manager of a Wholesale Co-operative Store,was charged with and convicted of criminal breach of trust of goodsentrusted to the Co-operative Society.
Held : That in a prosecution for criminal breach of trust, the factthat a shortage of goods has occurred is by itself not evidence fromwhich a dishonest misappropriation can be inferred. The prosecu-tion must eliminate the possibility that the shortage could haveoccurred by any other means except dishonest misappropriation.
^^PPEAL from a judgment of the District Court, Balapitiya.
Nimal Senanayake with Rohan Perera for the Accused—Appellant.
Upawansa Yapa, State Counsel, for the Attorney-General.July 14, 1975. Pathirana, J.—
The appellant was the Manager of the Maha Edanda WholesaleCo-operative Store. He and the 2nd accused, the bill clerk, werecharged with having between 29th April, 1967 and 4th June,1967, committed criminal breach of trust of goods to the value
PATHIRAJNA, J.—Sumanadaaa v. The State
of Rs. 9,513.81 entrusted to them by the Co-operative Society,an offence punishable under Section 329 of the Penal Code.The major item in this shortage was 131 cwts. and 29 lbs. ofsugar valued at Rs. 8,767.58
The 2nd accused was acquitted after trial. The 1st accusedwas found guilty of the charge and sentenced to 18 months’rigorous imprisonment. The appeal is against this convictionand sentence.
It would appear according to the evidence that this parti-cular Co-operative Society drew its supplies, including sugar,from the main Co-operative Union. The quantities of sugar etc,supplied to the accused’s Co-operative Store are reflected in“ D ” forms. These goods are brought from the main UnionCo-operative Store and stored at the accused’s Co-operative Storefor distribution to retail Co-operatives.
The prosecution, in order to establish that there was a short-age of 131 cwts. and 29 lbs. of sugar, had to rely on these “ D ”forms and also on the Analysis Report, P5, dated 2-6.1967, thelatter of which had been signed by the Manager but in fact pre-pared by the bill clerk, the 2nd accused, who is now acquitted.On 3rd June, 1967 the 1st accused was absent on leave. On achecking and audit carried out on 4th June, 1967, after deducting8 cwts. and 1 lb. of sugar sold on 2nd June, 1967 there shouldhave been with the Manager on 4.6.1967, 215 cwts. and 29 lbs ofsugar but a physical check revealed only 84 cwts. at the accused’sstore, indicating a shortage of 131 cwts. and 29 lbs.
In a prosecution of criminal breach of trust, in view of thecase reported in The King v. Pulle 12 N.L.R. 63, the fact thata shortage has occurred is by itself not evidence from which adishonest misappropriation can be inferred. In this case, theprosecution must eliminate the possibility that the shortagecould have occurred by any other means, except dishonestmisappropriation. The prosecution is unable to prove any directevidence of dishonest intention on the part of the accused ofmisappropriation of any of the goods nor are there any cir-cumstances from which the dishonest element of misappropria-tion can be inferred. On the other hand there is evidence asshown in Plla, (d)(e) (f)(g)(7i) (Jc) (I)(m) and
(n) that certain quantities of sugar from the main UnionCo-operative Stores were taken charge of by the drivers of theCo-operative Society and not signed by the Manager in respectof these deliveries to the accused’s store-
Even the document P5, dated 2.6.1967, has been drawn up,not by the accused, but by the 2nd accused and this accused hasonly signed that document. This document is based on the stock
Sirimane, J.—Peter Singho v. The Republic of Sri Lanka
as revealed in the “ D ” forms. The prosecution has also notproduced the Analysis Report for 3.6.1967 to show the balancestock in hand. On this day the appellant was on leave.
On the totality of the evidence we find that thereis neither direct nor circumstantial evidence to indicatethat although there has been a shortage that the accused eithermisappropriated any of these articles or acted with a dishonestintention in relation to the shortage that has occurred.
In all the circumstances of this case, we do not think it is safeto allow the conviction of the appellant to stand on the evidence.We accordingly give the benefit of the doubt to the accused.
The appeal is allowed- The conviction and sentence are setaside and the appellant is acquitted.
Ismail, J.—I agree.
Weerabatne, J.—I agree.
H. SUMANADASA v. THE STATE