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KOCH v. NICHOLAS PULLE.P. C., Pvttalam, 5,095.
Criminal breach of trust—Penal Code, e. 389—Master and servant—Deficiency in quantity of goods entrusted to servant—Evidencein proof of criminal breach of trust.
Mere deficiency in the quantity of goods entrusted to a servantis not of itself sufficient proof of criminal breach of trust. It mustbe shown that the accused disposed of the property in some otherway than that in which he was bound to apply it, and that in sodisposing of it he did so dishonestly.
r | ''HE accused was a servant of the Local Board of Puttalam,and as such he was entrusted with 700 small tin plates forthe purpose of attaching them to carts, &c., for which licenseshad been taken out. At the end of the year he was not calledon to account for the unused plates. In the beginning of 1898he was entrusted with 700 more plates. On the 15th June,1898, there was a verification, and after crediting him with thesame number of plates as the number of licenses issued in 1897and 1898, there was found to be a deficiency of 95 plates, forwhich he was held responsible by the Police Magistrate andcharged with criminal breach of trust.
On appeal against a conviction,
Jayawardena appeared for him.
23rd September, 1898. Lawexe, J.
It is, I think, well fixed law that proof of deficiency in thequantity of goods or in the amount of money entrusted to a servantis not in itself sufficient proof of criminal breach of trust.Take the case of a librarian entrusted with .books, or a shop man ‘entrusted with large quantities of many varieties of goods, or ofa domestic servant entrusted with household plates, knives, andforks, &c. It is not sufficient to prove that at the beginning ofservice there was a certain number of books or goods or householdarticles, and at the end there was a smaller number. It is necessaryto prove some facts .from which the jury or the judge cansafely draw the inference that the deficiency is due to criminalbreach of trust.
The deficiency of money is a case in which the inference ofdishonest appropriation can most easily be drawn, for it is theduty of a servant entrusted with money to keep it in his purse orunder lock and key. With regard to the deficiency of money, thelaw under our Penal Code has authoritatively been laid downby Mr. Justice Withebs in Buchanan v. Conrad (7 S. C. R. 338).
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But with regard to deficiency in the quantity of goods whioh 1898.cannot reasonably be expected to be kept in the personal posses- September23.sion of the servant, the inference of criminal breach of trust is Lawsto, J.not so easily drawn. To repeat the words of Starling (p. 184) :
“ It must be shown by the prosecution that the defendant disposed“ of the property in some other way than that in which he was“ bound to apply it, and in so disposing of it in breach of the trust“ did so dishonestly.”
In all cases under this section the explanation by the servantis an important part of the evidence before the jury or the Court.
Does the explanation satisfy the Court that there has been nodishonesty, no criminal breach of trust, or does it containadmission or statements from which either the guilt of theaccused is proved or guilt may reasonably be presumed ? I saynothing about what inference may be drawn if the accused givesno explanation, for here the accused has made the followingstatement:—“ As soon as the year iB finished the unused tin plates“ are thrown out with refuse paper and other rubbish on the“ Kachcheri premises. I put successive numbers from the com-“ menoement to the end of 1897, and I threw out the balance“ unused. From the commencement of January to the date of the“ verification I affixed forty tin plates to licensed carts out of the“ supply of plates given to me for 1898. I found this out in the" register 181—220. I also issued two tin plates to coaches licensed“ for 1898.”
Of this, the Magistrate says: “ This is incredible and prepos-“ terous, as he should have kept the blank ones for stamping licenses“ to be issued in 1898 for the period July 1, 1897, to June 30, 1898.”
In my opinion the explanation given by the accused is notsatisfactory, but I do not see why I should disbelieve it. Certainly,
I am unable to treat it as an admission of guilt or an admission offacts from which guilt can reasonably be inferred.
These tin plates, unlike money or goods, were worthless for anyother purpose than to affix to carts.
The Magistrate, from his recollection of other cases in his Court,says there had been dishonest proceedings connected with theissues of cart licenses in Puttalam, but no evidence has beenadduced in this case to show that it is probable that the accusedused any of the tin plates dishonestly…
If it had not been for this passage in the judgment' I would,not have understood why the accused was prosecuted, but theMagistrate supplies the reason; and it seems to me that there isno more than a suspicion against the accused, and after carefulconsideration I set aside the conviction and acquit him.
KOCH v. NICHOLAS PULLE