DIAS J.—The King v. Vamtniyam.
1946Present: Dias J. and Nagalingam A.J.
THE KING v. VAVUNIYAM.113—D. C. (Criminal) Vavuniya, 109/19,411.
Evidence—Hearsay—Things said or done by conspirator in reference to commorodesign—Admissibility—Evidence Ordinance, s. 10.
The charge against the appellant was that he used as genuine a forgedpermit which purported to authorise him to transport paddy. Theevidence established that there was a conspiracy to smuggle paddy and.that the parties concerned were the appellant and two others, one ofwhom, P, was found by the police transporting some bags of paddy..When P was asked to produce his permit he produced the forged permit-in question. The police then took P with the permit to the Kachcheri.At the Kachcheri, when he was requested to' point out the person who*gave him the permit, P was alleged to have pointed out the appellant.
Held, that the evidence alleging that P pointed out the appellantas being the person who gave him the permit was admissible under-section 10 of the Evidence Ordinance, even though P, when he gave-evidence, denied that he pointed out the appellant.
PPEAL against a conviction from the District Court, Vavuniya.
E. Chitty (with him F. W. Obeyesekere), for the first accused-appellant.
J. A. P. Cherubim, C.C., for the Attorney-General.
■ Cur. adv. vult.
November 26, 1946. Dias X—-
The appellant and one Muttu Seevaratnam were charged on ainindictment containing four counts as follows : —
The appellant alone was charged under sections 457 and 459 of
the Penal Code with having between January 12, 1944, andApril 26, 1944, fraudulently or dishonestly used as genuinea document forged for the purpose of cheating, namely, the-document P 1 which is an application to the Assistant Govern-ment Agent, Vavuniya, for the removal of paddy purporting;to have been signed by one A. Sabapathy.
The second accused, Muttu Seevaratnam, was charged with the-
abetment of the above offence.
The appellant was charged under sections 457 and 459 of the-
Penal Code with having on or about April 24, 1944, fraudulently-or dishonestly used as genuine a document forged for the-purpose of cheating, namely, the document P 2 which purportedto be a permit No. 078152 dated April 24, 1944, purportingto have been “issued by the Deputy Food Controller, Mr. V.Kumaraswamy, in favour of the second accused authorisinghim to transport thirty-six bushels of paddy.
The second accused was charged with the abetment of the above
The District Judge acquitted the appellant on count I and the secondaccused on counts 2 and 4. The appellant was convicted on count 3'and sentenced to undergo a term of six months’ rigorous^ imprisonment-From that conviction the appellant appeals.
DIAS J.—The King v. Vatwniyam.
The charge against the appellant on the third count is based entirely■on circumstantial evidence. The question I have to decide is whetherthe relevant and admissible facts which have been established at thetrial are only consistent with the guilt of the appellant and areinconsistent with any reasonable hypothesis of his innocence havingregard to the ingredients of the offence which the Crown had to establishbeyond all reasonable doubt.
In order to prevent the smuggling of rice from the Vavuniya Districta Food Control Department was attached to the Vavuniya Kachcheri.Mr. V. Kumaraswamy whose signature on the permit P 2 is alleged"to have been forged was the Assistant Food Controller. The evidenceestablishes the following facts : —The second accused, Muttu Seevaratnam,and the witness Muttu Ponnambalam are brothers. The applicationP 1 was signed in blank by the second accused. It is dated February 16,1944, at Kerudavil in the Jaffna District. It bears an endorsementaddressed to the Assistant Government Agent (Emergency), Jaffnafrom the “ D. R. O. ” giving certain details. It is quite clear on theevidence that the application P 1 was not received at the Vavuniya■Kachcheri either by post from Jaffna or delivered by hand in theordinary course of business. Had this been done, P 1 would have bornethe date stamp of the Kachcheri showing the date it was received bypost or handed in. Furthermore the receipt of the document wouldhave been noted in the inward register of documents P 8 or P 9 whichat the relevant dates were kept by the appellant. Had P 1 been dealtwith in the Kachcheri in the normal way , it would have been submittedto Mr. Kumaraswamy who would by an endorsement have referred itto the D. R. O. of the place from where the paddy was to be obtainedin the Vavuniya District. P 1 bears no such endorsement. The
R. O. would return P 1 with his report. There is no such reportin this case. The papers would then be resubmitted to Mr. Kumara-swamy who would cheek the papers with the assessment forms, andwhen he was satisfied that everything was in order, he would authorisethe issue of the permit for transportation. None of these thingshappened in this case. It was the duty of the appellant to draft thepermit which would be then submitted to Mr. Kumaraswamy throughthe Chief Clerk, Panchacharam, or in his absence through Mr. Thambi-pillai who acts for the Chief Clerk, whose duty it would be to give thepapers a final check, signified by their initials on the foil and counterfoil•of the permit book. This was not done in the case of the permit P 2.In fact the book from which P 2 was taken is not forthcoming.Mr. Kumaraswamy swears that the signature on the permit P 2 was notwritten by him. I see no reason for doubting his evidence on the point.His clerks, Panchacharam and Thambipillai, say that it is a goodimitation of Mr. Kumaraswamy’s signature. Cage 1 of the applicationP 1 is in the handwriting of the appellant. Everything written on thereverse side of P 1, except the signature of the owner, is also in thehandwriting of the appellant. The official witnesses who are familiarwith the handwriting of the appellant have no doubt about the matterat all. The appellant has not given evidence nor denied that the writingis his. The permit P 2 is also in the handwriting of the appellant.'There is no evidence from the appellant disputing that evidence.
DIAS J.—The King v. Vavuniyam.
On April 26, 1944, one Tharmalingam went to the Vavuniya PoliceStation and gave information regarding an attempt illegally to transportpaddy from Vavuniya—see Exhibit P 4. The gist of his information,was that an unknown man whom he could identify w^s attempting to-transport fifteen bags of paddy from Vavuniya to Kudiruppu in Jaffna..He also stated : “ This was transported in one Muthari’s cart from,one Poopalasingam’s house, who is a clerk in the Food Control OfficeI agree with Counsel for the appellant that there is nothing stated inP 4 to the effect that the appellant was seen accompanying the cart*I also agree that Tharmalingham and the appellant are admittedly not ongood terms. But the fact remains that the witness did mention thename of Poopalasingham who was described as being a clerk in theFood Control Office. The name of the accused as -given in the indictmentis Sabapathy Poopalasingham Vavuniyam.
The police acting on this information proceeded to the VavuniyaRailway Station and found the witness Muttu Ponnambalam handingover to the railway checker sixteen bags of paddy. When he was askedto produce his permit, Ponnambalam produced the document P 2. Thepolice then took Ponnambalam with P 2 to the Kachcheri. At theKachcheri when he was requested to point out the person who gavehim P 2, Ponnambalam is alleged to have pointed out the appellant.This evidence has been objected to as being inadmissible particularlyas Ponnambalam did not admit doing so. I shall deal with this questionpresently. Mr. Kumaraswamy at once denied that the signature onP 2 was his. The document being in the handwriting of the appellanthe was requested to produce the connected papers. He did not do soat once, but after a delay of about two hours, he produced theapplication P 1 and P 3 the assessment form from his drawer.
At the trial the witness Ponnambalam did not support the prosecution*The late stage at which he was called indicates that the prosecution,did not expect him to support the case for the prosecution. Accordingto him, his brother, the second accused, signed P 1 in his presence.He then took P 1 to the D. R. O. of Point Pedro and after that officerhad made his endorsement P 1 was handed back to the 2nd accused*The witness says he came to Vavuniya at the request of the 2nd accusedbut he denies that he brought the application P 1 with him. He saysthat he removed sixteen bags of paddy from Thandikulam to theRailway Station. According to him it was the Chief Clerk Panchacharam.who gave him the permit P 2. He denies that he pointed out theappellant as being the person who gave him P 2.
In oTder to establish the guilt of the appellant under count 3 the pro-secution -had to establish (a) that the document P 2 was a forgeddocument, (b) that the appellant knew that it was a forged document,,and (c) that knowing it to be a forged document, he either fraudulentlyor dishonestly used P 2 as genuine.
The trial Judge has held that P 2 is a forged document and that the signa-ture of Mr. Kumaraswamy appearing on it was not written by that officer.I think the evidence on that point is overwhelming. If Mr. Kumaraswamysigned the document, there would be his endorsements on the appli-cation on P 1 and his signature on the foil of P 2. The witness himself
DIAS J.—The King v. Vavuniyam.
swears that P 2 was not signed by him, and there is no reason whateverwhy his evidence should not be accepted. I hold that the prosecutionhas proved beyond all reasonable doubt that P 2 is a forged document.
Did the appellant know P 2 was a forged document ? I think theevidence on this point is equally overwhelming. Taking all the estab-lished facts in combination they are only consistent with the viewthat the appellant knew P 2 was forged, and are inconsistent with anyreasonable hypothesis to the contrary. It was his duty to write outthe permits. P 2 is in his handwriting. The foil of P 2 would con-clusively show that P 2 was signed by Mr. Kumaraswamy, but the bookis not forthcoming. The application P 1 was found in the appellant’spossession. The fact that the normal office routine was not followedin this case must have clearly indicated to the appellant, when he filledup the body of P 2, that there was something wrong with the transaction.How did the application P 1 reach the appellant ? The evidence indicatesthat P 1 did not come by post nor was it handed in the normal way.Judged in the light of the other facts, the inference is irresistible thatP 1 was directly handed to the appellant. How did P 2 leave theXachcheri and reach the hands of Ponnambalam ? How cameTharmalingam, an outsider, to implicate the appellant, in the state-ment P 4 ? It is to be observed that the appellant, who could have.answered all these questions, chose to remain silent at the trial.
The defence argues that there is no evidence whatever to establishthat the appellant used as genuine the document P 2. It is pointedout that even if the first two ingredients of the offence have beenestablished, the Crown case fails on this point because there is noevidence whatever to show that the appellant on April 24, 1944,fraudulently or dishonesty used as genuine the document P 4. Thisis a question of vital importance and has received my careful and anxiousconsideration.
I agree with Counsel for the appellant that there is no evidence exceptthat which is objected to, to show that after filling in the body of the■document,, he dealt with it in any way. It is at this point that the ad-^ missibility of the evidence objected to becomes material. If that evidenceis inadmissible, I think the contention of the appellant is sound and theaccused must be acquitted.
The case for the Crown is put in this way : It is alleged that threepersons, the 2nd accused, Ponnambalam, and the appellant engaged them-selves in a conspiracy to smuggle rice from Vavuniya to Jaffna. In pursu-ance of their common design it is alleged that the 2nd accused signed theapplication P 1 and obtained the Point Pedro D. R. O’s endorsement on it.P 1 was then handed to the appellant who wrote out the permit P 2 whichbore the forged signature of Mr. Kumaraswamy. There is no proofthat the appellant forged this signature. P 2 was then handed to thethird conspirator who, under cover of P 2, conveyed sixteen bags of paddyto the Railway Station when he was detected.
Section 10 of the Evidence Ordinance provides that “Where there isreasonable ground to believe that two or more persons have conspiredtogether to commit an offence …. anything said, done, or writtenby anyone of such persons in reference to their common intention, after
DIAS J.—The King v. Vavuniyam.
the time when such intention was first entertained by any of them, is arelevant fact as against each of the persons believed to be so conspiring, aswell for the purpose of proving the existence of the conspiracy as for thepurpose of showing that any such person was a party to it It is not easyto prove a conspiracy by direct evidence. In most cases it can only beinferred from circumstantial evidence—Appuhamy v. Appuhamy1. Arethere reasonable grounds for believing that the appellant and the other twomen had conspired together to commit the offence of smuggling paddyfrom Vavuniya to Jaffna ? “ Belief ” is something more than “ suspicionThe circumstances must be such that a prudent man would feel reasonablyconvinced that a conspiracy exists—see Kartigesu «. Alwis*. There-fore, the foundation must first be laid by the prosecution to induce areasonable ground for the belief that the parties concerned are conspi-rators—Peris v. Silva’. For the sake of convenience, however, suchevidence may be led before sufficient proof is given of the conspiracy onthe prosecutor’s undertaking to lead such evidence at a later stage—R. v.Attanayaka *. I think the evidence in this case when considered as a wholeestablish beyond a reasonable doubt that there was a conspiracy tosmuggle paddy out of Vavuniya and that the parties concerned are thewitness Ponnambalam, the second accused, and this appellant. Infact, without the co-operation of the appellant, the fraud could not beperpetrated. Once that is established anything said or done by Pon-nambalam, one of the conspirators, in reference to the common intentionof all of them, is admissible evidence against the appellant not only forproving that he was a conspirator, but also to show that he was a partyto it.
The charge against the appellant is that he did on April 24, 1944, useas genuine the forged permit P 2. One of the conspirators, Ponnambalam,when asked who gave him the permit P 2, pointed out the appellant asthe man. Once the conspiracy was established, I am of opinion thatevidence was admissible, even though the witness went back on his hav-ing done so when he gave evidence. The question is not whetherPonnambalam is to be believed, but whether the witnesses are tobe believed who say that Ponnambalam pointed out the appellant tothe police at the Kachcheri. On that point the District Judge has accep-ted the evidence of those witnesses who are corroborated by the actiontaken immediately thereafter, when the Assistant Food Controller calledupon the appellant to produce the connected documents. The evidencetherefore establishes that on that day the appellant did use as genuine theforged document P 2 by handing it over to Ponnambalam to enablethat person to smuggle the rice out of the Vavuniya District.
I am, therefore, of opinion that the conviction is right and shouldbe affirmed. The appeal is dismissed.
The cases cited by the appellant5 to show that hearsay in advanceof calling the witness is not permissible have no application in thecircumstances of this particular case.
1 (1920) 21 N. L. R. at p. 438.3 (1913) 17 N. L. R. 139.
3 (1929) 30 A’. L. R. of p. 508.* (1931) 34 A’. L. R. of p. 26.
'R. r. Silea (1925) 30 N. L. R. 193 atp. 195 ; R. v. Haromanisa (1944) 45 N. L. R .
atp. 537 ; R. v. Don Samel (1946) 47 N. L. R. of p. 452.
NAGALINGAM A.J.—Sheriff v. Bongso.
I desire to deal with a matter which was stressed by Counsel for theappellant. He pointed out that the trial was concluded on. July 9,
The verdict of the Judge convicting the appellant was pronouncedon July 10. Counsel stated that the petition of appeal was filed onthat day and that the reasons for the conviction were only delivered.on July 13. It was suggested by Counsel that this delay in giving reasonsfpr the verdict was due to the Judge taking time to peruse the petitionof appeal and adapting his judgment to meet the points made therein.That is a serious allegation to make against a judicial officer. A perusal.of the record shows that it is unfounded. Immediately after pro-nouncing his verdict on July 10, the Judge recorded : “ I have to startnow by train to Chilaw on official duty, and I shall be coming backon the 13th instant on which date I shall give reasons. In the event■of an appeal accused will give bail in Rs. 1,500. If no appeal is preferreddirect the Superintendent of Prisons to produce accused on July 13,1946, before this Court.” The journey from Vavuniya to Chilaw andback is a long and tedious one. The District Judge clearly stated thathe would not be returning to Vavuniya until July 13. Obviously,he intended to write his judgment during the interval probably at Chilaw.'There is no evidence at all that the District Judge would have seenor would be in a position to peruse a petition of appeal filed with theSecretary of the District Court of Vavuniya. With these facts , beforehim, I consider it improper that Counsel should have made thisinsinuation against the learned Judge.
JMagalingam A.J.—I agree.
THE KING v. VAVUNIYAM