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KING v. RAGAL.
D. C., Batticaloa. 1,62612,244.
Ordinance No. 22 of 1889—Having dominion of money as public servant—Postmaster failing to produce money—Smallnessof amount not
produced*—Criminalbreach oftrust—Proof of dishonesty—Meaning
of " forthwith."
The essence of the offence constituted by section 1 of OrdinanceXo. 22 of' 1899 is dishonesty. The Ordinance did not intend to make aperson criminal who had no guilty or criminal intent- Its object was tofacilitate proof of dishonesty by deeming that public servant to bedishonest who, on being required to account for the money shown byhis accounts to be due from him, could not within a reasonable timepay or produce it. or account for the shortage, by showing for instancethat thieves had broken into his safe.
Failure to produce “ forthwith " means within a reasonable time.
To justify a conviction there must be direct evidence of dishonestyor such conduct on the part of the accused as would lead to the inferenceof dishonesty or dishonest intent.
The mere failure on the part of a postmaster to produce a smallbalance of Be. 1.38 shown in the cash book kept by him cannot be treatedas a criminal breach of trust. In law, shortage of a small sum of moneyis not in itself evidence of dishonesty.
It is evidence of dishonesty if a public servant, entrusted with mdney,being called upou to produce it. says: " I had the money I cannot" explain what has become of it," and it is a sum which he cannotreplace.
HE facts of this case and the • arguments in appeal are setforth in the judgment of the Chief Justice.
Dornhont and IF. H. Jayauardene appeared for accused,appellant.
■Walter Pereira, Acting S.-G., for respondent.
10th December. 1001. Bonser, C.J.—
This is an appeal by a man who is the Postmaster in an out-of-the-way part of the Island against a conviction by the DistrictCourt of Batticaloa, which found him guilty of two offences—first,that he, having dominion of money in his capacity as a publicservant, vix., as Postmaster at Kalkuda. did commit criminal breachof trust by failing .to produce, when required to do so by the Headof his Department, Mr. H. L. Moysey, Postmaster-General, thesum of Re. 1.38$, balance shown in the cash book kept-by him assuch public servant, and for that he was sentenced to undergorigorous imprisonment for three months; and the second offencewas that he did on the 16th December, 1900, at Kalkuda, havingdominion over property in his capacity as a public servant, andbeing entrusted with certain property, viz., Rs. 2.80, did commit
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criminal breach of trust in respect of Bueh property bydishonestly misappropriating the same, and for that he wassentenced to undergo rigorous imprisonment for three months.
Now, the 1st thing that strikesone is the small amountat
stake. Of course it may be that these were simply amountsselected out of a large number of defalcations, and that evidencewas given of a large number of defalcations, to show that theman was dishonest in respect of these particular sums of money.But that is notthe casehere,and the onlysuggestionof
dishonest}' was in respect of these two small sums. .
As regards theconvictionon the first count,in respectof
Bs. 1.38£, the District Judge based it upon the provisions ofOrdinance No. 22 of 1889. Now, that Ordinance runs as follows: —
Whoever, beingentrustedwithor having thedominionof
“ public money in his capacity as a public servant, fails forthwith“ to pay over or to produce, when required to do so by the head of•“ his department or by the Colonial Secretary, the Auditor -“ General, Assistant Auditor-General, or any officer specially“ appointed by the Governor- to examine the accounts of his“ department, any money or balance of any money shown in the“ books or accounts or statements kept or signed by him to be‘ ‘ held by or to be due from him as such public servant, or to duly“ account therefor, shall be guilty of the offence of. criminal“ breach of trust, and shall on conviction be subject to the penalty
provided by section 392 of the Ceylon Penal Code.” Tt wassought to be argued that this Ordinance altered the law in respectof criminal breach of trust in its most essential particular. ■ Toconstitute the offence of criminal breach of trust, you must finddishonesty. That is the essence of the offence, dishonesty. Inmy opinion, this Ordinance did not intend to make a man acriminal who had no guilty or dishonest intent:it simply
intended tp facilitate proof of dishonesty, which it is often difficultto prove. Of course, if, as in many cases it occurs, a person hasfalsified his accounts, then you have at once evidence of dishonesty,but a mere shortage of money is not in itself any proof of dis-honesty. The object of the Ordinance evidently was this, that ifa public servant was required to account for the money, andcould not within a reasonable time—“forthwith” must bearthat meaning—pay or produce the money shown by hisaccounts to be due from him, he is to be deemed dishonest,unless he can account for the shortage. Of course, if he can,for instance, show that thieves have broken into his office andstolen money from his safe, that would be an answer. But if allhe can say is “I had the money and I cannot give any explanation
December IB.Bonseb.C. J.
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1901. of what has become of it,” and it is a sum which he cannotJ38ce”t6*r 10• replace, then there is evidence to satisfy a reasonable man thatBomsbb, C.J. he has taken the money without any reasonable prospect of payingit back, which of course would be a dishonest act. But that aman who is found to have in his safe, when he is suddenlypounced upon, five cents less than his account shown to be due byhim, and can give no explanation of the five cents than that hehas taken it, should be made a criminal is revolting to' one’s ideaof justice.
The Acting Solicitor-General, who appeared to support theconviction, candidly admitted that there was no direct evidenceof dishonesty on the part of this man in respect of this charge,nor was there any conduct on his part from which dishonestyor dishonest intent could be inferred. That being so, I holdthat the mere shortage of a trifling amount like this, which couldbe replaced any moment, is not a dishonest misappropriation ofmoney. I do not overlook the fact that he told Mr. "Moysey thathe had no more money in his possession than what was in his safe.But a man in his position must have credit and friends, andwould have no difficulty in raising a trifling sum like Be. 1.38£.
Then, as regards the other charge, the criminal misappropriationof Rs. 2.80, there was no charge for that count under OrdinanceNo. 22 of 1889, and the case rests entirely upon the general law.The facts of this case appear to be as follows:—Mr. Moysey cameat daybreak on a Monday morning (December 17, 1900) andexamined this man’s accounts. The previous day. the appellanthad delivered out to the consignee a value-payable parcel and hadreceived from him the sum of Ks. 2.80, which of course had to beremitted to the sender of the parcel. The only evidence of dis-honest misappropriation of this Rs. 2.80 was that he could notproduce to Mr. Moysey either the Rs. 2.80 or parcel, and hisadmission that he had received this sum of Rs. 2.80 and the factthat the receipt of the money was not entered in his books. Theexplanation given by the appellant was this: ” The parcel was“ delivered out by me on a Sunday, and I was not bound to deliver“ out parcels on a Sunday, because the Post Office is not open for“ such transaction on that day, but to oblige the consignee I gave” the parcel and took the money, and as it was a Sunday I did“ not enter it into my accounts. Before I could enter it on” Monday, Mr. Moysey came at daybreak.”
It seems to me that that is a satisfactory explanation, that theabsence of the entry in his book is satisfactorily accounted for,and that uo presumption of fraud could be drawn from it. TheActing Solicitor-General frankly and candidly admitted that that
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was so. Iu law, the fact that he was short of a small sum of j80j »money was not in itself evidenoe of dishonesty. Therefore the Decemhtr 19.conviction on this count was wrong. It may be the Postmaster Bj
committed a breach of the departmental regulations for which’
he may be departmentally punished, but that is quite a differentthing from an offence against the criminal laws.
The conviction is quashed.
KING v. RAGAL