Samarasinghe v. Dalpatadu.
1940Present: Wijeyewardene J.
SAMARASINGHE v. DALPATADU.
385—M. C. Panadure, 6,029.
Notaries Ordinance—Conviction under rule 25, s. 30—Charge under proviso <a),s. 30—Plea of autrefois convict—Interpretation Ordinance, s. 9—Criminal Procedure Code, s. 330.
The conviction of a Notary under rule 25 of section 30 of the NotariesOrdinance for failure to transmit duplicate of deeds to the Registrar ofLands is no bar to a subsequent charge against him for failure to complywith a written notice to transmit such deeds within a stated time undersection 30, proviso (a) of the Ordinance.
PPEAL from a conviction by the Magistrate of Panadure.
Dodwell Goonawardana, for appellant.—Section 330 of the CriminalProcedure Code makes it quite clear that a person cannot be charged forthe same offence twice over.
If he is, he can claim the benefit of autrefois convict. The secondconviction on the same facts is obnoxious to section 9 of the InterpretationOrdinance.
“ For an act or omission which constitutes an offence under two or morelaws the offender is liable to be prosecuted and punished under either ofthese laws, but shall not be liable to be punished twice for the sameoffence.”
(1895) 2 Ch. 273.
(1911) 36 Bom. 77.
5 11897) 2 Ch. 534.
WIJEYEWARDENE J.—Samarasinghe v. Dalpatadu.565
This is not a continuing offence for the Legislature must expressly stateit .fe a continuing offence. There must be a conviction for an offencebefore the offender is convicted for continuing in committing the sameoffence.
The offence constituted under proviso A of section 30 of the NotariesOrdinance is alternative to the offence under the main proviso ofsection 30.
If the Registrar-General does not prosecute the Notary in the firstinstance he could give him notice under section 30 (a) and then enter aprosecution, but once he has been prosecuted and convicted no secondprosecution could be launched.
The main Notaries Ordinance, No. 1 of 1907, was amended by OrdinanceNo. 27 of 1909, and Ordinance No. 10 of 1934.
Section 20 of the last amending Ordinance penalized a Notary whowas convicted of three offences and he could be removed from the officeof Notary. This meant three distinct offences and not three punishmentsfor the same offence. Counsel cited Wijesuriya v. ■Dalpatadu
Nihal Gunasekera, C.C., for respondent.—The offence constituted undersection 30, proviso (a) of the Notaries Ordinance is not alternative to theoffence under the main provisions of section 30 for a violation of rule 25of the section. Proviso (a) was added by Ordinance No. 10 of 1934 theobject of which was to make effective provision to check slackness anddishoriesty on the part of Notaries and to provide for a more expeditiousmethod for dealing with Notaries who do not forward their duplicates—vide Objects and Reasons appended to the Draft Ordinance (GovernmentGazette No. 7,995 of August 4, 1933).
Section 9 of the Interpretation Ordinance does not apply because theingredients of the two offences are different. The plea of autrefois convictcannot be maintained—vide Criminal Procedure Code, section 330 (1)and (3).
Cur. adv. vult.
July 24, 1940. Wijeyewardene J.—
The accused appellant, a Notary Public, was charged in M. C., Panadure,No. 3,826, for failing to transmit to the Registrar of Lands on or beforeApril 15, 1939, the duplicates of deeds attested by him in March, 1939,in breach of rule 25 of section 30 of the Notaries Ordinance (LegislativeEnactments, Vol. Ill, Chap. 91). He pleaded guilty and was fined Rs. 50on November 25, 1939. Thereafter the Registrar-General served awritten notice on him in terms of proviso (a) of section 30 of the Ordinancecalling upon him to comply with the requirements of rule 25 of section 30on or before December 18, 1939. On the failure of the Notary to complywith the terms of the notice, the present proceedings were institutedagainst him. The Magistrate found the accused guilty and fined himRs. 100.
The Counsel for the accused-appellant contended that the convictionwas bad on the following grounds : —
(1) The appellant was entitled to the benefit of the plea of autrefoisconvict.
1 9 0. L. W. 73.
' WIJEYEWARDENE J.—Samarasinghe v. Dalpatadu.
That the conviction was ohhpxious to the provisions of section 9 of
the Interpretation Ordinance (Legislative Enactments, Vol. ' I,Chap. 2).
The offence constituted under proviso (a) of section 30 of the
Notaries Ordinance is alternative to the offence under the mainprovisions of section 30.
The first point raised by the appellant’s Counsel ignores the dearprovisions of sub-seytions (1) and (3) of section 330 of the CriminalProcedure Code. The accused was charged in M, C., Panadure, No. 3,826,for the failure to deliver the duplicates before April 15, 1939. As aconsequence of his failure and after the termination of the proceedings inthe earlier case, the Registrar-General sent him the notice referred to byme. He is now charged for refusing to comply with the terms of thatnotice. Section 330 of the Criminal Procedure Code states clearly that* aperson could be charged a second time' in such circumstances (see illus-tration (c) ).
The second argument urged on behalf of the appellant is based onsection 9 of the Interpretation Ordinance which enacts : —
“ When any act or omission constitutes an offence under two or morelaws …. the offender, shall, unless the contrary intentionappears, be liable to be prosecuted and punished under either of any ofthese laws, but shall not be liable to be punished twice for the same,offence ”.
As pointed out by me earlier it is not the same act. or omission whichconstitutes the offences under the main provisions of section 30 of theNotaries Ordinance and under proviso (a) of section 30. Moreover,there is clear indication of an intention that a Notary should become liableto be punished for both offences as will be seen when I deal with the thirdpoint raised by the appellant’s Counsel. I hold that section 6 of the Inter-pretation Ordinance is no bar to the present proceedings (vide 19 New LawReports, 142).
The argument of the appellant’s Covftisel on the third point may besummarized as follows:—When a Notary commits a breach of rule 25;the Registrar-General should decide whether he would prosecute thepeccant Notary or would give him further time for the transmission of theduplicates. If the Registrar-General does not prosecute the Notary in •the first instance, he could give the Notary notice under section 30,proviso (a), and then enter a prosecution under that proviso if the Notaryfails to comply with the notice. If he chooses to prosecute the Notary inthe first instance, he cannot subsequently give the Notary a notice undersection 30, proviso (a), and then initiate further proceedings against theNotary for non-compliance with the terms of the notice. Otherwise theproviso (a) would have the effect of making rule 25 more stringent. Butit has been held in Wijesuriya (Registrar of Lands) v. Dalpadathu (NotaT~yPublic)', that the Legislature amended the Notaries Ordinance by theaddition of proviso (a) in order to give the power to the Registrar-Generalto grant an indulgence to Notaries deserving of such indulgence.
1 9 Ceylon Law Weekly 73.
WUEYEWARDENE J.—Samarusinghe v. Dalpatadu.
For a proper consideration of this argument it is necessary to examinefully the legislation on the subject.
Section 29 of the Notaries Ordinance, No. 1 of 1907. as originally passedreads: —
It is and shall be the duty of every Notary strictly to observe and actin conformity with the following rules and regulations : that isto say (1) to (23)….
He shall deliver or transmit to the Registrar of Lands ….
the following documents, so that they shall reach the Registraron or before the fifteenth day of every month, viz., the duplicateof every deed or instrument … attested by him
during the preceding month.
And if any Notary shall act in violation of any of the rules
he shall be guilty of an offence and shall be liable on convictionthereof to a fine not exceeding two hundred rupees, in additionto any civil liability he may incur thereby.
It will be noted that the corresponding provisions in Chapter 91 of theLegislative Enactments are section 30 and rule 25.
The Ordinance as orginally passed enacted further by section 20(corresponding to section 20 of Chapter 91 of the LegislativeEnactments) —
“ It shall be the duty of the District Judge within whose jurisdiction aNotary resides, upon being satisfied, after due inquiry, that suchNotary—
. . . .Has so conducted himself by any repeated breaches of any
of the rules made by or under this Ordinance that heought not to be any longer entrusted with the perform-ance of the said duties; or
to report the same in writing to the Governor with theevidence taken at inquiry ”.
it appears to have been felt shortly after the passing of the Ordinancethat the Registrar-General should be given a discretion not to prosecutefor breaches of rules in such cases where he thought fit not to enter aprosecution. Accordingly the Legislature passed Ordinance No. 27 of1909 which by section 2 enacted—
“ When the Registrar-General has reasonable grounds for believingthat any Notary has committed a breach of any of the rules theRegistrar-General may, if he thinks fit, instead of instituting criminalproceedings against such Notary accept from him such sum of moneyas he may consider proper in composition of the offence. When theRegistrar-General has accepted any sum of money from any Notaryin composition of any alleged offence criminal proceedings shall not betaken, or if already taken shall not be continued in respect of suchoffence ….
WDEYEWARDENE J.—Samarasinghe v. Dalpatadu.
This enactment appears in Chapter 91 of the Legislative Enactmentsas section 30, proviso (d).
The Notaries Ordinance was further amended by Ordinance No. 10 of1934. A study of its provisions makes it abundantly clear that the objectof that amending Ordinance was—as stated in the Objects and Reasonsannexed to the Draft Bill (vide Government Gazette No. 7,995, August 4,1933, page 637)—to make more effective provision for checking slacknessand dishonesty on the part of Notaries and for a more expeditious andsummary way of dealing with Notaries who do not forward their dupli-cates. This Ordinance amended inter alia—
Section 20 (1) (c) of the Notaries Ordinance by the addition at the
end of the words “ has been convicted three times or oftener fora violation, disregard or neglect to observe the provisions ofrule No. 24 in section 29 ; or
By the insertion at the end, but immediately before the first proviso
of section 29 of the Notaries Ordinance of the words :
“ Provided that where any Notary shall act in violation of or shalldisregard or neglect to observe the provision of rule 24, theRegistrar-General may by a written notice served on himpersonally or sent by registered post call upon such Notary tocomply with the requirements of the said rule within such furthertime as he may specify for such purpose, and any Notary whofails to comply with the terms of such notice shall be guilty ofan offence and shall be liable on summary conviction to a finenot exceeding five hundred rupees.”
These amendments appear in Chapter 91 of the Legislative Enactmentsas section 20 (1) (d) and section 30, proviso (a).
A study of the main Ordinance and the two amending Ordinancesmentioned by me leads me to the following conclusions:—The Legislatureregarded a breach of rule 25 prescribed by section 30, Chapter 91, as amore serious offence than the breaches of most of the other rules. Ordi-nance No. 10 of 1934 amended section 20 of the Notaries Ordinance soas to make three convictions for a breach of rule 25 a sufficient groundfor an inquiry by the District Judge while in the case of other rules theDistrict Judge had to be satisfied that by repeated breaches the Notaryhas shown himself to be a person who should no longer be entrusted withthe performance of his duties. There is, if I may say so, good reason fortaking such a view of the importance of rule 25. In a large number ofcases a breach of rule 25 is occasioned by the Notary misappropriatingthe money paid to him for stamps and thus experiencing a difficulty insending on the due date the duplicates which have to be stamped.
The Legislature did not amend section 30 of Chapter 91 by the additionof proviso (a) because it wanted to give relief to some deserving Notariesagainst the hardship that may be caused to them by a prosecution forbreach of rule 25 and therefore empower the Registrar-General togrant an indulgence to the Notaries deserving that indulgence. TheRegistrar-General had that power given to him by Ordinance No. 27 of1909 which gave him the right to exercise his discretion in the case of thebreach of any rule and decide to accept a money payment in composition
HOWARD CJ.—Jayasundera v. Andris.
of any offence instead of prosecuting the Notary in the Magistrate’s Court(vide proviso (d) of section 30 of Chapter 91). There was no need there-fore to give the Registrar-General any authority in 1934 to relax thestringency of the rule. The proviso (a) to section 30 was introduced in1934 to enable the Registrar-General to bring pressure to bear on the Notaryto deliver to him the deeds which he has failed to deliver on the due dateaccording to rule 25. Moreover, it would hardly be an indulgence to givea deserving Notary a short extension of time and then prosecute him fornon-compliance when he would be liable to a fine of Rs. 500 whereas if hehad been prosecuted without being favoured with such an indulgence themaximum fine that could have been imposed on him would have beenRs. 200.
I think therefore that section 30, proviso (a), enables the Registrar-General to give a notice to a Notary though he has been convicted for abreach of rule 25 and then proceed to prosecute him again if he fails tocomply with the terms of the notice. It is of course a power which theRegistrar-General may or may not exercise according to his discretion.
I hold therefore against the appellant and dismiss the appeal.
SAMARASINGHE v. DALPATADU