( no )TH ]■', KING ii. STJPPAIYA.
D. C.. Kandy, 1.279.
Criminal breachof Iru-it—Penal Code.s. 391—Payment of moneyto servant
forthe useof the master—Denialofreceiptby servant—Presumption of
Aservantwho .receives moneyonbehalfof his masterand enters
theamonntreceived in his master's.book-but afterwardsdenies 'the
receipt of the money, is liable under section 3511 of the Penal Code.
His false denial of the money received is primS faeie evidence ofoishonest misappropriation.
HE accused in this case, being a servant of the complainantKarpaya Kankani, was charged undersection 391 ofthe
PenalCodewith having committed criminalbreach of trustin
respect of three sums of money, viz.. Rs. 80, Its. 125, and Rs. 220,entrusted to him on the 14th. 16th. and 29th July, 1900. respec-tively.
The case was heard with the aid of assessors.. ,
It appeared that when the complainant left the Island inApril,1900,he appointed the accused andone Vellasamihis
attorneys to act jointly in all money transactions. In September,1900, complainant returned to the Island, in consequence of . atelegram hereceived from ’.his brother, whohad been sentby
him to see how his business was getting on. Complainant metthe, accused on his return and they went. through the account12-
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1901.books in the- presence of some Ohetties. A large deficiency whs
May iO. discovered, whereupon the accused' wrote and signed an olaadmitting the deficiency. The three sums in question formedpart of the deficiency.
The District Judge acquitted the accused in regard to the twosums of Rs. 80 and Rs. 125. but as regards the sum of Rs. 220 hefound as follows: —
“ That amount was paid to him direct by Palaniappa Chetty. whohas been credited that in the ledger, the entry being in theaccused's handwriting. Accused denies the receipt of thatamount. For the prosecution there is the evidence of Palani-appa that he paid the accused, and he is corroborated by theledger. Accused admits that the ledger entry is in his hand-writing, but he says he wrote it at the request of the complainantafter his return from India, and that complainant threatened tobeat him if he did not write it."
The assessors and the District Judge were agreed that theaccused was guilty of criminal breach of trust in respect ofRs. 220. Being sentenced to rigorous imprisonment for two years,he appealed.
Sendtlfimja, for appellant.—Section 891 relates to transactionsbetween master and servant, but it has not heen proved that thesum of Rs. 220in question belonged to the complainant. The
evidence is that a third party, Palaniappa. paid the money to theacctised, and that he secured himself by taking a promissory noteon a subsequent day from the accused for the amounts alleged to liepaid to him. There was no dishonest misappropriation (Queen v.Costa, 2 C. L. tt. 205). The circumstances of the present caseare similar to those of R. v. Hodgson (3 Car and P. '422), whereit was held that a clerk, whose duty it was to receive moneysdaily at Newcastle, to enter the moneys received in a book, andto remit the amount weekly to Liverpool, and who, havingcorrectly enteredthereceipts inthe book, failedto remit the
moneys received,wasnot guiltyof embezzlement,Vaughan, B.
observing, “ it isonlya defaultof payment; themere fact of
not paying is not a felony, but matter of account only." [Coun-sel argued on the merits also. ]
Rdmandthan, 8.-G., for respondent.—The money which theaccused received from Palaniappa is proved to have been paid forand on account of the complainant. The case of R. v. Hodgxoneited for appellant was decided in 1828, but it has been overruledby R. v. Lister. 26 L. J. M. C.‘ 26 (1856). Pollock. C. B., entirelydissented from the dictum of Vaughan, B.. and held that entering
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the amount received iu the ledger did not exempt the prisonerfrom liability to the charge oi having embezzled the money. Intiie present case, the accused denied the receipt of the moneyproved to have been paid to him. His denial and subsequentconduct in not accounting to his master were evidence that theoriginal taking was with dishonest intention (R. v. Taylor, 3 Bos.& Pul, 597). In Queen v. Costa (2 C. L. R. 206) Mr. JusticeWithers held that- non-payment of the sums received by theaccused to the shroff, to whom he should have paid them, wasreasonable presumption of misappropriation.
(,'ur. adr. vult.
20th -May 1901. Lawrie, A.t'.J.—
Karpaya (the complainant) was a kankani on an estate, andalso had a boutique at Bamboda: he went to India in April, 1900.leaving two attorneys, Vellasamy to manage his estate businessand Suppaiya (the accused) to manage the boutique. Of Suppaiya,he said: “he was to be in my boutique and attend to the workthere, and he was to keep the accounts.” The power of attorneyleft by Karpaya gave authority to his two attorneys joiutly, actingtogether, to borrow money, but the complainant admits that herelaxed that by authorizing Palaniappa Chetty to advance moneyon the written order of one of the attorneys only.
In July, 1900, Suppaiya asked Palaniappa Chetty to pay Rs. 20.for cart hire and Rs. 200 in cash, which was paid and enteredas a payment to. and for, Karpaya, both by Palaniappa and, bySuppaiya. It is plain. I think, that Palaniappa did not lookentirely to the complainant- for payment. He had no authorityto pay to one of the attorneys without a written order, and thathe. did not look to the complainant- alone is, I think, plain from asignificant passage in Palaniappa’s evidence (which is not alludedto by the D-stiict Judge), that he got two promissory notes forRs. 500 each from the accused, which were discounted at thebank and were dishonoured by the accused. Take with this thepassage in the complainant’s evidence: “ I repudiate all promis-“ sory notes and orders signed by accused alone, but I consider" myself liable to pay whatever he has entered in my account.”
The fact that Palaniappa secured himself, by taking a pro-missory note from Suppaiya, for moneys advanced to him forKarpaya, however, does not necessarily change the character ofthe transaction, and I am- of the opinion that the-District Judgewas right to presume that in getting this money from Palaniappa,the accused got it in trust to apply to the purposes of the boutiqueof which he was manager. I wish that were quite certain, but Ithink, as I said, it is a fair presumption to be drawn from the
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whole facts of the case, including the accused’s defence, for if hehad said “ I borrowed the Rs. 200 from Palaniappa for my ownuse, and he knew that and made me give him a promissory note,1'the fact' that he entered the payment in his master's book wouldnot have been conclusive that he got it on trust.
The fact seems to be that the accused was (to say the least ofit) a bad manager, and it is said that when the complainantreturned in -September he found his accounts in a mess; it tookdays, weeks I think, to get a balance sheet made up. Thebalance showed a deficit; it may be that the deficit' was causedby bad times, bad debts, losses in legitimate trade. The reason ■why the small claim of Rs. 220 has been selected as one regardingwhich the accused was guilty of criminal breach of trust is thathe denied he had received the money, and stated he had beenforced involuntarily to make the entry in his books.
I have not had the advantage of seeing the books, and I do not.know whether tfhe District Judge and the assessors devoted their,special attention to the entry. I presume .there was nothingsuspicious in its position 'or writing to show that it was madesubsequently to other entries.
It is good law, that, when it is proved that an article or a sumof money has been placed in a man's hands in trust for another,with a duty to hand it over or to pa.v it. the fals? denial that tl^erewas a placing or paying is primd facie evidence that the articleor money, proved to have reached the accused in trust, was appliedby <him to his own use. It is not quite so clear that the samerule applies when the payment is part of a series of continuedand complicated, transactions, when the actual sum of money wasnot to be paid in the same cash, but was to be applied for thepurpose of a business, which needed ready money for paymentsand purchases.
In this case I think the accused’s statement to the .Magistrate ofmuch consequence. It is this: “ I took a little money, but I did“ it through ignorance. I have left the money at my uncle’s. I“ will get it and- return it to the kankani and go hack to work“ under him."
Take that with the statement which the complainant says theaccused made to-him: “ I asked, him what he had done with the" Rs. 220. He said: “ I spent some of it,' and that he left whatremains with his uncle. He has not been able to pay eitherPalaniappa or the complainant. The sum taken is small. In thecircumstances I think the sentence of two years too severe. Ireduce it to six mouths, in addition to the period already spent in]ai'l.
THE KING v. SUPPAIYA