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Present: Wood Benton A.C.J.
THE KING v. ABDUL BA HIM.
79—D. C. (Grim.) Colombo, 3,531.
Punishment—Forging three separate documents in the course of a transacttion—Same object—Separate sentences—Consecutive—Penal Code,8. 67—Criminal Procedure Code, s. 17*
The accused, with the object of obtaining payment of a sum ofmoney deposited by another in the Poet Office Savings Bank,forged three distinct documents, viz., (1) an application for with-drawal ; (2) a warrant of withdrawal; (3) a letter of consent tothe Withdrawal by the depositor; and was sentenced to threeterms of imprisonment, which were to run consecutively.
Held, that the three separate sentences on the three separatecharges were legal.
Wood Renton A.C.J.—The three forgeries were committed onseparate occasions. The appellant stands charged with eachseparately, and the three taken together do not constitute in theircombination a distinct and more serious offence.
'J'HE facts appear froin the judgment.
H. A. Jayewardene (with him De Jong), for the appellant.
Garvin, Acting S.-G, for the Crown.
July 14, 1913. Wood Benton A.C.J.—
The accused-appellant has been convicted of forgery in theDistrict Court of Colombo, and has been sentenced to periods ofimprisonment amounting in all to four years. The evidence insupport of the findings of the learned District Judge on the facts isoverwhelming, and there is no doubt but that the conviction mustbe affirmed. Mr. H. A. Jayewardene has raised an interestingpoint in regard to the sentences. The object of the appellant wasto obtain payment by the Post Office of a sum of Bs. 100 from theSavings Bank account of Don Hendrick Amerasinghe. For thispurpose, with the assistance, of a little boy Comelis, who is DonHendrick’s son, he forged, as he was bound to do in order to carryout the fraud, three distinct documents,: in the first place, anapplication for withdrawal; in the second place, a warrant ofwithdrawal; in the last place, a letter of consent to the withdrawalby the depositor. Those were three distinct forgeries, althoughthey were obviously committed as part of a transaction which hadone and the same object, namely, to secure possession of the sum ofBs. 100. The appellant was charged with each of the forgeries.
34- —J. N. 86177 (1/84)
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The King «.Abdul Rahim
The District Judge has sentenced him to two years' rigorous imprison-ment in respect of the first, and a term of one year’s rigorous -imprisonment in respect of each of the second and third. Thesentences are to run consecutively. So that, as I have alreadystated, if they are upheld, the appellant will have to undergo fouryears’ rigorous imprisonment. Mr. H. A. Jayewardene’s contentionis that the imposition of consecutive sentences in a case of this kindis prohibited by section 67 of the Penal Code, as it has been inter-preted in certain cases here, and as the corresponding provision inthe Indian Penal Code has been interpreted in India. Section 17 ofour Criminal Procedure Code provides that, where a person isconvicted at one trial of any two or more distinct offences, theCourt may sentence him to the several punishments prescribed foreach, so long as the amount of these punishments does not exceedits jurisdiction, and then provides—I will quote only the materialwords—“ that, if the case is tried by a District Court, the aggregatepunishment shall not exceed twice the amount- of punishment whichthat Court in the exercise of its ordinary jurisdiction is competentto infiict.” If that section stood alone, it could scarcely be contend-ed that there was anything wrong in the sentences passed by thelearned District Judge in the present case. But we are here referredto section 67 of the Penal Code. That section enacts that whereanything which is an offence is made up of parts, any of which partsis itself an offence, the offender shall not be punished for more thanone of such offences, unless it be so expressly provided. It has beenheld in the judicial construction of that section in Ceylon—see, forexample, Meedin v. Kirihatana 1 that where an accused person isconvicted both of house-breaking by night for the purpose ofcommitting theft and of the actual commission of theft, only onesentence should be imposed, and, therefore, a fortiori, the impositionof consecutive sentences would be illegal. The same view of thelaw has been taken in India in the construction of the correspondingsection of the Indian Code. See Empress of India v. Ajudhia 2 and,more recently, Queen Empress v. Main.* There is, however, adecision by three Judges in Ceylon to the contrary effect (King v.Amolis Appu *). It was there held by Sir Charles Layard C.J.and Mr. Justice Moncreiff and Sir John Middleton that theft andhouse-breaking with intent to commit theft are two distinct offences,and that two separate sentences in respect of them may be passedunder section 17 of the Criminal Procedure Code. That decision isbinding on me, and would dispose of the case if I had only a questionof house-breaking with intent to commit theft and theft committedin the course of the house-breaking to deal with. If I may respect-fully say so, I agree with the reasoning of the Supreme Court in thecase of The King v. Amolis Appu .* The question was put in a
i (1896) 8 N. L. R. 157.
* (1880) I. L. R. 8 All. 644.
(1899) I. L. R. S3 Bom. 706.
(1904) 8 Bal. 81.
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nutshell by Sir John Bonser in the case of Mendis v. Gomelis,l whenhe said that a man may break into a house to commit theft, andmay then repent and desist from carrying out his original design,while, on the other hand, a man may commit theft in a dwelling-house without breaking into it. That comment is in itself sufficientto show that house-breaking by night with intent to. commit theftand the theft itself are two distinct offences, and may therefore bemade the subject of distinct and consecutive sentences. But thepresent case is a much stronger one. For all the decisions, bothIndian and local, to which I have referred, contemplate cases wherethe two offences not only are committed at the same time and formpart of the same transaction, but constitute, when combined, anoffence-of a more serious character. The circumstances here arequite different. The three forgeries were committed on separateoccasions. The appellant stands charged with each separately,and the three taken together do not constitute in their combinationa distinct and more serious offence.
The appeal is dismissed.
The King a.Abdul Rahim
THE KING v. ABDUL RAHIM