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Present ; Porter J.
SOMANADER t. UDUMA LEBBE.
272—P. C. Batticaloa, 11,01§
Criminal breach- of trust—-“Ordinance No. 22 of 1889—Tax collector
not paying tax collected within specified date—Penal Code, s. 892.
The accused had to collect taxes for a Sanitary Board, and paythem to the Chairman before February in each year. He paid•a portion, andon March 4theChairman wanted him to pay the
balance, and he tendered a further instalment which was refused,as the wholebalance wasnottendered. A warrant wasapplied
for on March 10, and on the 14th he paid the whole balance.
Hold, that accused was not guilty of criminal breach of. trust, asthere was no dishonest intention.
The Ordinance No. 22 of1889did not intend to make aman a
criminal whohad no guiltyor dishonest intent. Itsimply
intended to facilitate .proof of dishonesty, which is often difficult toprove. The wordforthwith " in the Ordinance means within a
HIS was an appeal from an acquittal with the sanction of theAttorney-General.
Vythialingam, C.C., for the appellant.
Arttlanandam, for respondent.
July 5, 1922. Porter J.—
The accused was charged with criminal breach of trust beforethe Police Court of Batticaloa. The accused was a tax collectorof the Sanitary Board, and his duty was to collect taxes and paythem to the Chairman of the Sanitary Board before February ineach year. It appears that for 1921 he had collected Rs. 1,514.72.He paid part of this to the Chairman of the Sanitary Board, leavinga balance of Rs. 809.99 owing. On March 4 the Chairman of theSanitary Board wanted him to pay the balance, but he failed topay, although there is evidence that he tendered part of the balanceto the Kachcheri, but this was not received by the clerk, on theground that he must pay up the whole balance. A warrant wasapplied for on March 10, and on March. 14 he paid the whole of thebalance. On these facts the learned Magistrate acquitted theaccused. It has been argued for the Crown that by section 1 ofOrdinance No. 22 of 1889 the accused was guilty of, at least, an
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attempted offence. I have been referred to the case of King v.Hagai,1 which was a case very much on all fours with this, butwhich resulted in a conviction. In the course of that judgmentJBon«er C.J. says: Ordinance No. 22 of 1889 runs as follows: —
“ Whoever, being entrusted with or* having the dominion ofpublic money in his capacity as a public, servant, fails forthwithto pay over or to produce, when required* to do so by the head ofhis department or by the Colonial Secretary, the Auditor-General,the Assistant Auditor-General, or any officer specially appointedby the Governor to examine the accounts of His department, anymoney 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 fromhim as such public servant, or to duly account therefor, shall beguilty of the offence of oriminal breach of. trust, and shall, onconviction be subject to the penalty provided by section 392 ofthe Ceylon Penal Code. It was sought to be argued that thisOrdinance altered the law in respect of criminal breach of trustin its most essential particular. To constitute the offence ofcriminal breach of trust, you must find dishonesty. That is theessence of the offence, dishonesty. This Ordinance did – not intendto make a man a criminal who had no guilty or dishonest intent.It simply intended to facilitate proof of dishonesty, which it isoften difficult to prove.’*
This is the reading of the Ordinance which. I accept. Thelearned Magistrate has found as a fact in the present case thatthere was no dishonest intention. He received the notice from theChairman of the Sanitary Board osi March 2 to pay. He paid onMarch 14. Tbe word '* forthwith ” in' Ordinance No. 22 of 1889,I think, clearly means within a reasonable time, and apparentlythe accused offered to pay the balance on some day which is notmentioned between the 2nd and 14th, but this was refused by theclerk in the Kachcheri, on the ground that he must receive thewhole of the amount.
I see no reason to disagree with the finding of the- Magistratein this case, and would dismiss the appeal,
1 U902) S N. L. B. 3i4i