( 156 )
Present: Schneider A.C.J.
THE KING •«. PONNASAMYPILLAT.09—D. ('. (Crhn.') Trincomalee, 204.
Falxc statement in an affidavit—Ckartjc under sections 190 and 11H?of the Penal Code—Imperfect Jurat—Parol evidence—Section*437-440 of the Civil Procedure Code.
Where a person was charged wilh having made a false statementin an affidavit submitted by himin acivilsuit, and there was no
indication that the affidavit hadbeenreadover and explained to
Held, that parol evidence vuis inadmissible to supply sheomission in that Jural.
Empress v. Mayadcb Gossami3 followed.
ppeal from a conviction. The accusedwas indicted
under sections 106 and 100 of the Penal Code with haying
made a false statement in an affidavit submitted by him in acivil suit. There was no indication in the Jurat that the affidavithad been read and explained to the declarant, who was ignorantoftheEnglish language. At thetrialparol evidence was led
tosupply this omission, and the accusedwasfound guilty of the
charge laid against him.
Driebcrg, K.C. (with him */. 8. Jaycwanlcne), for the appellant.Navaratnam, for the Crown, respondent.
October 8, 192(5. Schneider A.C.J.—
The accused was the defendant in action No. 1,047 of theDistrict Court of Trincomnlee, in which decree had been enteredagainst him for default of appearance. He submitted an affi-davit dated January 14, 1925, and moved the court to vacatethe decree. He succeeded. That affidavit is the document-marked B. and is to bo found at page 03 of the record in tlmt action.The lust paragraph of that affidavit is as follows: —
“ (6) I was not aware of the institution of the above actionuntil I received the decree nisi in the above case/’
It is.signed in English in a flowing hand, suggesting that thesignatory could write in English freely. Below the signature, theonly matter is-—
** Affirmed to this 14th day of January, 1925, at Batticaloobefore me.
C. Muttyah, J. P.”
Those words comprise the whole of the Jurat.
1 6 Cal. 762.
( 157 )
In the present action the accused was prosecuted under sections196 and 190 of the Penal Code on the ground that the statementwhich I have quoted from the affidavit was false, and that theaccused was aware of the institution of the said action. Theaccused was convicted. This is the appeal from that conviction.Mr. Drieberg, on his behalf, submitted that there is no admissibleevidence that the contents of the affidavit were read over andexplained to the accused, and that for that reason the prosecutionfails. I think this contention is right and should be upheld.As I have already stated, the affidavit, which is the foundationof the charge in this prosecution, was intended to be used, andwas used in connection with an action governed by the provisionsof the Civil Procedure Code. Sections 437 to 440 of that Code dealwith affidavits. It is enacted that “ in the event of a declarantnot being able to understand writing in English language the affi-davit shall at the same time (that is, when it is signed by thedeclarant in the presence of’ the Justice o.f the Peace) be read overor interpreted to him in his own language, and the Jurat shallexpress that it was read over or interpreted to him in the presenceof the Justice of the Peace and that he appeared to understandthe contents.'’ There is no Jurat in the affidavit expressingthat it was read over and interpreted to the accused, but at thetrial of the accused parol evidence was led to supply this omission.Mr. Drieberg’s contention was that parol evidence was inadmissibleand that the Jurat was the sole admissible evidence that the affi-davit was read over or interpreted to the accused. There is dearevidence in the record that although the accused writes his signaturein English, he does not read, write, or understand English. Mr.Drieberg cited the following passage from Gout’s " The Penal Lawof India —
“ The deposition, if reduced to writing, must have been takenin accordance with law. That is to say, it must complywith the requirements of the law under which it wastaken. If, for instance, it was taken under the Codeof Civil Procedure, it must comply with the provisionsof that code relating to the reading over and signingof it by .the Judge, in the absence of which there canbe no prosecution for perjury. For such evidence beingrequired by law to be in writing, no evidence other thanthe document itself is admissible in evidence, and thedefects of the evidence cannot be permitted to be madegood by parol.”
In support of this statement the writer cites the case of Empressv. Mayaileh Oossami (supra). That case clearly bears out thecomment.
The Kin;ic. Pomw-
( 158 )
The Kingv. Ponna-xamyjnUai
It would appear, therefore, that the accused lias been wronglyconvicted. I set aside, the conviction and acquit him.
Together with the appeal was listed an application for therevision of the sentence made by the Attorney-General. Theapplication is bound to fail as the accused 1ms been acquittedThe application must, therefore, be dismissed.
THE KING v. PONNASAMYPILLAI