( 94 )
1911.Present: Lascelles C.J. and Middleton J.
ISMAIL v. CARLIS APPU et al.
289—D. C. Galle, 10,636.
Promissory nole given for compounding criminalcase—Consideration
Where a promissory note which was given by a person chargedwith criminal breach of trust to the' complainant to compensate himfor his loss formed part of a bargain that the complainant should,as far as he is able to do so, abandon the criminal proceedings—
Held, that the consideration for the note was illegal.
'■ The point is whether the transaction in its essence and snb-■tance was a bargain to abandon or withdraw the prosecution.”
N this case the plaintiff-appellant sought to recover a sum ofRs. 400 on a promissory note granted by the defendants. The
plaintiff alleged that he entrusted some gold and brilliants worthRs. 600 to the second defendant to be converted into a pendant, andthat he subsequently prosecuted the second defendant for misappro-priation of the said things; that pending the said prosecution, thefirst defendant, who had originally recommended the second defend-ant to this appellant, induced the plaintiff to take a sum of Rs. 50in cash and a promissory note for Rs. 400, signed by both defend? its,to compensate the plaintiff for the .loss of the articles.
( 95 )
The learned District Judge (B. Constantine, Esq.) delivered thefollowing judgment: —
The plaintiff is bringing an action on a promissory note, and the (defence is that there -was no valid consideration for the note. Thepromissory note was given in the morning of the day in which seconddefendant was to be tried for criminal breach of trust, and after receiv-ing the promissory note the plaintiff has appeared in Court and statedthat he did not press the charge. The question at issue is whether then*was any understanding that plaintiff would not press the charge if hewere given • the value of the property, or whether the promissory notewas given simply to make up the plaintiffs* loss without any referenceto the pending Police Court case. But I think the fact that it wasgiven immediately before the Police Court trial shows there was anunderstanding that plaintiff would not press the charge, and this beingso, the note is bad in accordance with .the authorities quoted fordefendants, and I therefore dismiss plaintiffs' case with costs.
A. St. Y. Jayewardene (with him Canekeratne), for the plaintiff,'appellant.—Tlie charge against the defendants was a non-summaryone, and one WA.'ich the plaintiff could not have withdrawn evert ifhe chose.
The note was not given for compounding the case; it was givenin settlement of plaintiff's claim. In the local cases there was a clearfinding that the note was given for compounding the offence. SeeSilva v. Dias1; Valipulle v. Konamale Ponniah;2 Low v. Poloris;9Encyclopaedia of the Laws of England, vol. XII. (2nd ed.). at page124.
H. A. Jayewardene (with him Zoysa), for respondents.—It is notnecessary, that withdrawal of the criminal charge should be theonly consideration for the note to make the transaction illegal.Even if the withdrawal was part of the consideration for the note,the note could not be sued upon. Counsel cited Jones v. Merioneth-shire Permanent* Benefit Building Society;4 Lound v. GnmwadeFisher & Co. v. Apollinaris Co.;* See also .Calcutta Law Journal131, 133; Pollock on Contracts 330.
A. St. V. Jayewardene, in reply.
September 28, 1911. Lascelles C.J.—
In this case we have been referred to all the leading authoritieson the question of law involved, and in my opinion there is no greatdifficulty so'far as the law is concerned. If the promissory note,which was given to the plaintiff to compensate him for his loss,formed part of a bargain that the plaintiff should, as far as he is ableto do so, abandon the criminal proceedings, there can be no doubt
i (1910)5 Bal. 3.<(1899)1 Ch.D. 178.
3 (1883)Wendt's Rep. 276.•*(1889)39 Ch.D. 605.
3 (1894)1 N. h. R. 142, titpage 145.•(1875)10 Ch.297.
Ismail v.Carolia Appu
( 86 )
1911. but that the consideration for the promissory note was illegal. TheXasoelles P°in* i® whether the transaction, in its essence and substance, was
J. a bargain to abandon or withdraw the prosecution. The learnedIsmailv. District Judge has decided the question in the affirmative, and in<CarolisAppu my judgment it is impossible to arrive at any other conclusion. Itis true that the plaintiff lodged a criminal charge with very littleevidence in support of it, and it is probable that he did so because hebelieved that this was the most effectual means of obtaining redressfor the loss that he had sustained. We find the promissory note wasgiven in the morning of April 3, and on the same day the plaintiffappeared in the Police Court and stated that he did not press thecase. It is almost impossible to believe that ■ the receipt of thepromissory note, and the action of the plaintiff in withdrawing fromthe prosecution, were not causei and effect. In my judgment thefinding of the District judge is correct. It is true that the conductof the prosecution was in the hands of the Magistrate, and if he hadliked he could have gone on with the inquiry without the assistanceof the plaintiff. But in the circumstances of the case it would havebeen hopeless for him to have done so. The prosecution was practi-cally in the hands of the plaintiff, and when he came into Court andsaid that he did not press the case, it was practically at an end.- Ithink the judgment of the "District Judge is right and must beconfirmed. The order as to costs will be that the respondents willhave the costs of the appeal, and that each side must bear their owncosts in the District Court.
Middleton J.— I agree.
ISMAIL v. CARLIS APPU et al