The Queen v. Metiae de Silva
[In the Court of Criminal, Appeal]
1960 Present : Basnayake, C.J. (President), Sansoni, J., andH. N. G. Fernando, J.THE QUEEN v. D. METIAS HE SILVAAppeal 153 of 1960, with Application 172S. C. 75—M. C. Avissawella, 34117
Co-operative Societies Ordinance (Cap. 107), as amended by Acts Nos. 21 of 1949 and17 of 1952—Criminal breach of trust—Section 50 B—Applicability of it to aperson who has ceased to be an officer.
A person who has already ceased to be an officer of a co-operative societyat the time when he is called upon to pay over or duly account for a sum ofmoney is not liable to be convicted of criminal breach of trust under section 50 Bof the Co-operative Societies Ordinance as amended by Acts Nos. 21 of 1949and 17 of 1952.
jA-PPEAL against a conviction in a trial before the Supreme Court.
Colvin R. de Silva, with M. L. de Silva, K. Shinya, Nimal Senanayakeand V. Karalasingham, for Accused-Appellant.
J. O. T. Weeraratne, Crown Counsel, with J. A. D. de Silva, CrownCounsel, for Attorney-General.
BASNATAEE, CUT.—The Queen v. Metiaa de Silva
October 13, 1960. Baknayakv, C.J.—
The accused-appellant was indicted on the following charge :—“ Thathe being a person entrusted with or having dominion of money in hiscapacity as Treasurer of the Dehigampalkorale and Lower BulathgamaCo-operative Stores Societies Union limited a Society registered underthe Co-operative Societies Ordinance (Cap. 107) as amended by Acts,No. 21 of 1949 and No. 17 of 1952 and being required by the Registrar ofCo-operative Societies in the exercise of the powers vested in him bysection 50b of the said Ordinance as so amended, by his letter No. DA/KU331/18 dated the 16th day of October, 1957, and served on himon the 25th day of October, 1957, to pay over on the 1st day ofNovember, 1957, to A. P. Jayasekera, Assistant Commissioner Co-operativeDevelopment (Audit) at Colombo a sum of Rs. 24,446/37 shown in thebooks of accounts and statements kept and/or signed by him as duefrom him as Treasurer of the said Co-operative Stores Societies Unionlimited, did fail to pay over on the 1st day of November, 1957 or there-after the said sum of money or any part thereof or to duly accountthereof (sic), and that he is thereby guilty of the offence of criminalbreach of trust punishable under section 50b of the Co-operative SocietiesOrdinance (Cap. 107) as amended by Acts, Nos. 21 of 1949 and 17 of 1952.”The accused was convicted and sentenced to undergo a term of fiveyears’ rigorous imprisonment. Many points were urged by learnedcounsel for the appellant, but it is not necessary for the purpose of ourdecision to refer to them all. At the time the accused was called uponto pay over, or produce or duly account for the sum of Rs. 24,446/37he had ceased to be the Treasurer of the Co-operative Society. Anaudit of the accounts of the Societies was carried out between 1st and14th October, 1953, and in the course of the audit it was discovered thata sum of Rs. 24,446/37 which the appellant had entered in the bookscannot be accounted for. The appellant ceased to be the Treasurer ofthe Co-operative Stores Societies Union on the 5th of October, 1953, andhe was called upon to pay over, under section 50b of the Co-operativeSocieties Ordinance, to the Assistant Commissioner of Co-operativeDevelopment the sum of Rs. 24,446/37 on the 16th of October, 1957.Section 50b of the Co-operative Societies Ordinance, in our opinion,applies to a case of an officer, member or servant of a Co-operativeSociety who is an officer, member or servant at the time he is requiredby the Registrar of Co-operative Societies to pay over or produce oraccount for “ such amount of money or balance thereof which is shownin the books of accounts or statements kept or signed by such person asheld by or due from him as such officer, member or servant ”. In theinstant case the appellant had ceased to be the Treasurer at the time hewas called upon to pay over the sum of Rs. 24,446/37, and section 50bhas no application. The conviction of the appellant cannot thereforebe sustained.
We accordingly quash the conviction and direct that a judgment ofacquittal be entered.
THE QUEEN v. D. METIAS DE SILVA