ATTORNEY – GENERAL
v.DEWAPRIYA WALGAMAGE AND? ANOTHER
COURT OF APPEAL.
S. N. SILVA. J. AND W. N. D. PERERA J..
C.A. No. 126/85.
C. MATARA No. 05/83,
M.C. MATARA No. 41870,
JUNE 6. 1990
Criminal Law – Criminal breach of trust – Criminal misappropriation – Theft – CheatingSections 391, 386. 393, 395, 396 of the'Penal Code – Section 177 read with Section176 of the Code of Criminal Procedure Act, No. 15 of 1979 – Sentence. – Payment ofFine in Instalments – Ratio decidendi.
(a) There are two basic ingredients to the offence of criminal misappropriation underS. 386 of the Penal Code-
A mental element of dishonesty, and
An act of misappropriation or conversion of movable property to his own use by theaccused.
There are no words in Section 386 which require that the mens rea of dishonesty shouldbe preceded by an innocent state of mind. Dishonest intention is the element of mens reaof the offence of criminal misappropriation as defined in Section 386 of the Penal Code.
Although there are some illustrations to the section .which reveal that dishonesty may bepreceded by an innoceht or neutral state of mind, is not a prerequisite of the offence,further more dishonesty is the element of mens rea in relation to all other offences of theft;cheating and criminal misappropriation. ..
A person could be found guilty of the offence of criminal misappropriation even if there■is evidence.to the effect that he had a dishonest intention at the time he initially took theproperty being the subject of the offence.
Where the accused is chafged with only criminal misappropriation or criminal breachof trust it has to be considered whether on the evidence the offences of cheating or theftare committed at the time of the initial taking of the property. If it could be said beyondreasonable doubt that such an offence is committed at the time of the initial taking of theproperty the accused could hot be.fouhd guilty of the offence of criminal misappropriation
■ or criminal breach of trust. The question to be then decided is whether the convictioncould.be appropriately entered in terms of Section 177 read with Section 176 of the Codeof Criminal.Procedure Act, No. 15 of .1979.
If the initial taking could be only an irregularity of procedure or would not constitutetheft or cheating, the accused could be found guilty of criminal misappropriation orcriminal breach of trust. The correct test is to ascertain whether the accused is guilty ofanother offence such as cheating or theft at the time of the initial taking. •
Re sentence a term of imprisonment is not warranted because (i) Thirteen yearshave lapsed since the commission of the offence, (ii) The accused will lose hisemployment and related benefits, (ni) A'substantial fine had been imposed, whichwould meet the ends of-Justice.
High Court Judge directed to recover the fine in instalments.
Ratio of any Judgment should properly be ascertained in relation to the facts of the- particular case.
'Cases referred to •
Ranasmghe v. Wijendra (1970) 74 NLR 38
Georgesy v. Seyadu Saibe (1902) 3 Brown's Reports 88
Kanavadipillai v. Koswatta (1914) 4 Balasingham Notes of Cases 74.
Attorney-General v. Menthis (1960) 61 NLR 561
Rajendra v. State of Utter Pradesh AIR 1960 Allahabad 387, 394APPEAL from conviction and sentence imposed by the High Court of Matara.
D. S. Wijesinghe P. C. for accused-appellant.
Anura B. Meddegoda S.C. for Attorney-General.
Cur. adv. vult.
June 06, 1990
S. N. Silva, J.
The Accused-Appellant and another were indicted before the. HighCourt of Matara on two counts. The first count was against theAccused-Appellant and it alleged that when he was employed as theManager of the Rural Bank at Matara, between dates of 1 st April, 1977to 30th September, 1977, he committed criminal breach of trust inrespect of a sum of Rs. 70,000, an offence punishable under Section392 of the. Penal Code. The 2nd count against the other-accused madeon the basis that he abetted the commission of the offence in the firstcount, by the Accused-Appellant.
After trial, the learned High court Judge .found the Accused-Appellant guilty of having committed Criminal breach of trust in respect• of a sum of Rs. 50,000, an offence punishable under Section 391 of thePertal Code, and sentenced him to a term of 2 years' R.I., and to a fine ofRs. 50,000, in default 1 1/2 years' R.I.. This appeal has been filedagainst the said conviction and sentence.-The 2nd Accused was fpundnot guilty of the charge of abetting and he was acquitted by the learnedHigh Court Judge.
According to the evidence, the facts relevant'to the charge on which .the Accused-Appellant was found guilty are as follows : –
The Accused-Appejlant was functioning at the material time as
the Manager of the Rural jJank at Matara. The Bank formed part of the
Multi-purpose Co-operative Society, Matara (M.P.C.S) and was
located within its premises: The 2nd accused who was acquitted
was the Credit Manager of the M.P.C.S. and supervised the work of
the Rural Bank at Matara and another Rural Bank attached to the
The Rural Bank operated on an overdraft given by the People's Bank.Theoverdraft of Rs. 1 1/2 lakhs was deposited in two separate accountsof the M.P.C.S. opened at the People's Bank. The.Rural Bank tookdeposits on savings accounts, gave out smdll loans and carried on thebusiness of a pawnbroker. According to the instructions that weregiven, the Rural Bank should not have a cash balance exceeding Rs.5,000, at any given time..Amounts, in excess of Rs. 5,000 had to bedeposited in the appropriate account at the Peoples' Bank. If the RuralBank did not. have sufficient cash to carry out the daily transactions,money was obtained from the M.P.C.S. upto a sum of Rs. 5,000 at a •time.
The procedure by which such money was obtained from the. M.P.C.S. and accounted for at the Rural Bank is important in relation tothe charge of which the Accused-Appelant has been found guilty.Witness J. P. Ramachandra, the General Manager of the M.P.C.S'. whofunctioned as the Accountant of the M. P. C. S. at the relevant time, gaveevidence as regards the entire procedure. Several other witnessestestified to material 'aspects .of this procedure. Witness H. L.Ramawathie was a clerk at the Bank who maintained the Cashier's ScrollBook, (P 44). In this book, the money received and paid out, wereentered. If she found.that there was not sufficient cash to carry out thedaily transactions, she would make a request verbally to the Accused-Appellant, who. was the Manager, to obtain cash from the.M.P.C.S.Then the Accused-Appellant would make out a voucher in Form F5 toobtain cash, the voucher is submitted by the Accused-Appellant to the2nd Accused who had to satisfy himself as to the genuineness of therequest. When the 2nd Accused approved the voucher it is submitted tothe Accountant (witness Ramachandra) who would authorise a cheque
to be drawn in respect of the s.um stated in the voucher. This cheque isdrawn in the name of the Accused-Appellant. After the cheque is writtenout, it is put up for signature to the General Manager and the.Chairman ofthe M.P.C.S. Thereafter, the cheque is handed over to the Accused-Appellant who'acknowledges its receipt by signing the cheque, registerand the voucher. The Accused-Appellant takes the cheque to theAccountant and makes an endorsement.on the cheque which iscountersigned by the Accountant. Cash is then obtained by presentingthe cheque to the Cashier of the M.P.C.S., witness Devasurendra. TheCashier gets the person taking the cash to sign on the reverse of thecheque acknovyledging its receipt. It is the duty of the Accused-Appellant to hand over the cash to witness Ramawathie, at the RuralBank, with the necessary particulars entered in Form 917. This form isentered by the Accused-Appellant and witness Ramawathie acknowl-edges the reciept of .the cash by signing the form. Thereafter she entersthe receipt in the Scroti Book (p 44).
It is the case for the prosecution that the Accused-Appellant madeout 14 vouchers on F 5 Forms during the relevant period- These formswritten by the Accused-Appellant were produced marked P3 to P16Each voucher is for a sum of Rs. 5,000. The vouchers have been'approved by the 2nd Accused and cheques marked P17 to' P30 weremade out in favour of the Accused-Appellant. The cheques have beenendorsed, by the Accused-Appellant. The Cashier, witness Devasur-endra stated that on all the cheques other than four (P21, P22, P24 andP26) money was paid out by him to the Accused-Appellant. Thesignature of the Accused-Appellant appears on These cheques ashaving received the money. The monies on cheques bearing P22, P24,and P26 were drawn by witness Kumanayake; another employee of theRural Bank, who worked under the Accused-Appellant. He stated inevidence that he cashed the three cheques on the instructions of theAccused-Appellant and that he handed over the sums of money to. theAccused-Appellant. The cheque P21 had been cashed by the 2ndAccused. Witness RamaWathie stated in evidence, with reference tothe Scroll Book P44, that she did not receive any of the money drawn oncheques marked P17 to P30. She further stated that on. cheques 'marked on the material dates she had sufficient cash in hand and wouldnot have made requests to the Accused-Appellant to obtain cash fromthe M.P.C.S.,. The sum of Rs; 70,000 specified in the charge is the totalsum on the 14 cheques P17 to P39, that had not been handed over toRamawathie.
The Accused-Appellant did riot give evidence but made a statementfrom the dock. He stated that in addition to the duties as a Manager ofthe Rural Bank, he was assigned to attend to other functions by witnessRamachandra. Because the Rural Bank would need money in hisabsence he made out vouchers and-endorsed the cheques in questionand left them at the Bank to be cashed when necessary. He specificallystated that he did not receive any money on these cheques fromwitnesses Devasurendra or Kumanayake.
The learned High Court Judge has carefully cqnsidered the evidenceand has rejected the.dock statement of the Accused-Appellant. He hasaccepted the evidence adduced by the prosecution, with regard to theprocedure referred to above and the specific .involvement of theAccused-Appellant in the matters that are alleged against him. He hasaccepted the evidence of witness Devasurendra that money on ten ofthe cheques, amounting to Rs. 50,000 had been handed over to theAccused-Appellant. As regards the three cheques cashed by witpfessKumanayake the learned Judge has observed that the evidence ofKumanayake is not supported by any document. There is also noevidence as to what happened to the sum of Rs. 5000 drawn by the 2ndAccused. These sums have been set off from the amount stated in thecharge. The learned Judge has specifically accepted the evidence ofwitness Ramawathie that the Accused-Appellant failed to hand over thesum of Rs. 50,000 cashed by him during the relevant period, on the tencheques referred to above: The Accused-Appellant has been foundguilty of the offence of criminal breach of trust punishable under section391 of the Penal Code because it was held that he did not come withinthe categories of persons specified in Section 392, being the penalsection specified in the indictment.
Senior Counsel appearing for the Accused-Appellant made only onesubmission on the faqts. Jt was submitted that there is no acceptableevidence to hold that the sum of Rs. 50,000 referred to was not handedover to witness Ramawathie. According to the procedure as testified toby the witness each sum of money had to be handed over on a Form917. Counsel submitted that the prosecution should have produced allthe 917 .Forms for the relevant period and established that there wereno forms in respect of the sum of Rs. 50,000.1 do not see any merit inthis submission on the facts. Witness Ramawathie, whose evidence hasbeen believed by the learned High Court Judge, has specifically statedthat these sums were not handed over to her by the Accused-Appellant.
She stated so with reference to the Scroll Book marked P44 which wasmaintained by her. It had not even been suggested at the trial thatwitness Ramawathie failed to enter in the Scroll Book monies that werein fact received by her. In these circumstances it was not incumbent onthe prosecution to produce all the 917 Forms to establish the negative,that there were no forms in respect of the money received on theimpugned cheques.
The next submission of Counsel was that the Accused-Appellantcould not have been indicted or found guilty of an offence of criminalbreach of trust because according to the evidence, the initial taking ofthe money from-Devasurendra was with a dishonest intention. It wassubmitted that to constitute the offence of criminal breach of trust theinitial taking of the property should be innocent and that it should befollowed by a dishonest conversion of the property to his ovyn Use by theAccused.'
Counsel relied on two matters which according to his submissionestablished' that the initial taking of the money by the Accused-Appellant, from Devasurendra was dishonest. The first is, the evidence,of witness Ramawathie who stated that according to the Scroll BookP44, on the relevant dates there was sufficient cash and that she wouldnot have made requests to the Accused-Appellant to obtain more cash-implying thereby that The vouchers were made out by the Accused-Appellant with the intent of defrauding the money. The second is thecontent of count (2) of the indictment which alleged that the 14vouchers should have been declared invalid by the 2nd Accused: Itwas submitted by Counsel that in view of these two matters the initialtaking of the money by the Accused-Appellant should be considered as,dishonest.
On the Law, Counsel relied on the judgment-of Weeramantry, J., inthe case of Ranasinghe v. Wijendra (1) where jt.was held, that for aperson to be convicted of the offence of criminal misappropriation theinitial taking otthe property by such person must be innocent..Counselalso relied on a passage from Gour's Penal Law of India (which will bereferred to later), where it is stated that there is no entrustment in lawwhen the property is obtained as a result of a-trick.
WWijendra's case referred, above Weeramantry, J. observed thatthere was a conflict of decisions on the aspect whether to constitutecriminal misappropriation the intial taking of the property should beinnocent. I would now briefly deal with these decisions.
• In two cases decided at the turn of the century, there wereobservations to the effect that, to constitute the offence of criminalmisappropriation there must be at first an innocent possession of theproperty by the accused and a subsequent change of intention. In thecase of Geergesy v. Seyadu Saibot2) Middleton, J. set aside theconviction of an accused on a charge under Section 394 of the PenalCode (receiving stolen property), on the basis that there was noevidence to establish that the cheque with which the accused dealt hadbeen stolen. It is stated in the judgment that the Solicitor-Generalsubmitted at the end of the arguments before the judgment was.delivered, that the Court should consider entering a conviction for'criminal misappropriation on the evidence that had been recorded. Inrespect of this submission it was held that the accused could not beconvicted of criminal misappropriation because he got the chequedishonestly. The judgment does not specify the basis on which theinference of dishonesty, was drawn.
In the case of Kanavadipillai v.. Koswattaf3) an accused wasconvicted of having committed criminal misappropriation of a box ofmatches. He had.gone to the shop of the complainant and wanted tobuy a box of matches. He took the box of.matches and tendered a fiverupee note for the price. Since the complainant did not have thenecessary change he took' the box of matches and the rupees five to getit changed. Later, the complainant went in that direction and• apprehended the accused with a police officer when the accused wasreturning having changed the five rupee note. In this state of evidence. Pereira, J.,‘held that on the facts proved, it could not be safely said thatthe accused appropriated or converted to his own use the box ofmatches.' It was also held that the'accujsed did not intend to cause.wrongful loss to the complainant. The1, accused was accordinglyacquitted of the charge. However, in the judgment, there is a passagewhich states that there could be no criminal misappropriation unless thepossession of the thing alleged to haVe been misappropriated was comeby innocently. It is clear from the judgment that the accused was foundnot to have, been dishonest at that stage and the acquittal is properlyreferrable to the other grounds stated above. .
In the case of Attorney-General v. Menthis141 the Crown filed an .appeal against an acquittal entered by the Magistrate of an accusedcharged with criminal misappropriation. The charge related to two bulls. who had been let loose to graze on a pasture land by the complainant.The accused was seen driving these twq.bulls about '1 1 /2 miles away
CA Attorney-General v. Dewapriya Walgamage and Another (S. N. Silva, J.)219
' “ ■ ■■— ■ ■ – — — ■ — —■
from the pasture land. There was no evidence as to how he came by thetwo animals. The learned Magistrate found the accused riot guilty on thebasis that fo constitute criminal misappropriation there.must be an initialinnocent taking followed by a subsequent change of intention. In appealSinnetamby, J., considered all previous authorities and set aside theacquittal. As regards the question of an initial innocent taking,Sinnetamby, j., held as follows at p. 565 :
"In my opinion, therefore, in order to constitute criminalmisappropriation under our law it is not necessary that there shouldbe an innocent initial taking. If the initial taking of the property not inthe. possession of anyone is dishonest then too the offence is madeout…"
In Wijendra’s case (Supra) the accused was convicted on twocharges of cheating and criminal misappropriation. Both offencesrelated to the same sum of money, of Rs. 20, taken by the accused fromthe complainant pn the basis that the parcel whiph the accused gave,contained three cartons of cigarettes. Whereas, in fact the parcelcontained only cardboard boxes filled with pieces of paper.W.eeramantry, J., upheld the conviction and the sentence 'ofimprisonment on thp charge of cheating. As tothe charge of criminalmisappropriation it was held that the accused could not have beencpnvicted of the charge because the initial.taking of the property was not.'innocent. Weeramantry, j., considered the decision in Menthis's case(Supra), the observations made in this regard seem to suggest that theratio in that case should be restricted to situations where the offence iscommitted in respect of property not in the possession of anyone. Thejudgment does not specify the basis on which this distinction is made.However, the duality of criteria which this distinction postulates wouldlead to the following questions : Is it permissible to consider theingredients of the offence as being different depending on the 'circumstances in which the offence is committed ? If a persondishonestly takes property not in the possession of anyone and convertsthat property to his own qse is guilty of the offence of criminalmisappropriation ; why should a person who does, a similar-act with asimilar state of mind, but in relation to property in the possession ofanother be not guilty of that offence ? In my view an answer to these •questions should be found to prevent our law on this aspect also slidinginto a "somewhat bewildering state", (a phrase u§ed by Weeramantry,J., to describe the previous state of the law relating to the offence oflarceny in England).
Whatever may have been the approach in early years, the currentapproach to this aspect by the,Courts and the text writers in India,appear to be clearcut and simple. In Gour's Penal Law of India (1984),10th Edition, p. 3453 it is-stated as follows :
"The argument that criminal misappropriation cannot becommitted if the accused had dishonest intention at the time of takingpossession of the article, cannot be accepted. The complainant hasthe choice ; if he thinks that he can make out a case of dishonestintention while taking delivery of article he can charge the accusedwith cheating ; otherwise he is entitled to charge the accused withcriminal misappropriation. If the prosecution proves a case of Section403, I.P.C .the accused by proving that he had a dishonest intentionat the time of taking delivery of the article cannot change the nature ofthe offence to that of cheating. The Criminal Procedure Code doesnot contemplate any such change in the nature of the offencecommitted by an accused ; If it did, it would have consistently withdictates of justice allowed him to be convicted for the offence madeout even though not charged with it. . . .".
The words in the foregoing passage are taken mainly from thejudgment of Deasai. J., in the ease of Raiendra v. State of Uttar Pradesh
The gravamen of the submission.of Counsel for the Appellant is thataccording to the evidence, the accused was dishonest well before hegot the money into his hands ; that although he subsequentlymisappropriated the money of the M. P. C. S., in view of his antecedentdishonesty he cannot be convicted of the offence of criminalmisappropriation. In other words, he is more dishonest than what isalleged in the indictment, so he is not guilty of the offence. It is seen fromthe foregoing passage that in the compendious work titled Gour's PenalLaw of India a similar argument is dismissed in one sentence. But theconfilicting decisions in our country lead me to further inquiry.
Section 386 of the Penal Code merely states that "who everdishonestly misappropriates or converts to his own use any movableproperty shall be punished..". Prima facie, these words imply that thereare two basic ingredients to the offence. A mental element of dishonestyand an act of misappropriation or conversion of movable property to his
own use by the accused. There are no words in this section whichrequire that the mens rea of dishonesty should be preceded by aninnocent state of mind. In these circumstances it has to be noted thatthe observations in the two old cases and in Wijendra's case basicallyjmport an additional qualification to. the offence which does not primafacie form one of the ingredients under the definition. It is also seen thatat various stages this additional qualification has been differentlydescribed, 'n certain passages it is stated that the offence would not bemade out if the property is taken with a dishonest intention or a guiltystate of mind. In other passages it is stated that tooonstitute the offencethere should be an innocent taking. Inthe judgment ofWeeramantry, J.,itself both formulations are ‘ used at different stages. Although,superficially both formulations may relate to the same matter, it has to benoted that dishonesty or guilty state of mind relates to the mentalelement whereas innocence would embrace not only the mentalelement but also the acts.
In view of the submission of Counsel it is necessary to discern theprecise ratio in Wijendra's case and thereby to ascertain the limits of thequalification made by Weeramantry, J.. to the offence of criminal•misappropration. The ratio of any judgment should properly beascertained in relation to the facts of the particular case. From the fact inWijendra's case, it is seen that the accused committed the offence ofcheating, of which he was found guilty, wljen he took the money fromthe complainant. Therefore, the finding in the case is tha* where an•accused has committed the offence of cheating, he cannot in additionbe convicted of the offence of criminal misappropration of the.sameproperty in respect of which the offence of cheating was committed. It isin this context that Weeramantry, J., introduced a qualification to theoffence of criminal misappropriation, that to constitute the offence there .should be an "initial innocent taking of the property." The word"innocent" here, should be considered as connoting a state of being not.guilty of an offence : Because, if at the time of the initial taking itself, the* accused is guilty of an offence he should-be convicted of that offence’and not of the offence of criminal misappropriation, the objective of■ Weeramantry, J. in introducing this qualification was to preserve thelines of demarcation between the offence of criminal misappropriationand the other offences such as theft and cheating and no more. This is-*borne out by the following passage taken from the concluding paragraphof the judgement (at p. 43 ) .
"It is my view upon a review of all the authorities that in the case ofa change of criminal misappropriation where the property is takenfrom the possession of another, such initial taking must be innocent,for this is the feature which marks out this offence'from the offence oftheft and other offences which may be committed. To view thismatter otherwise may result in obscuring the line of demarcationbetween criminal misappropriation and such offences as theft andcheating.."
Such a qualification may be necessary if this matter is viewed fromanother perspective. In a situation.where at the time of-the initial takingof the property of an offence such as theft or cheating’ has beencommitted, the property in the hands of the accused, would be stolenproperty as defined in Section 393 of the Penal Code. Such propertycould be the subject of any of the offences specified in Sections 394,395 or 396 regarding stolen property. But, it is clear from the words ofSection 386 and the several illustrations to that section, that the offenceof criminal misappropriation is not intended to encompass situationswhere a person misappropriates or converts to his own use theproceeds ohanother offence.'
On the other hand, if at the time of the initial taking of the property theaccused is not guilty of another offence such as theft or cheating butthere is evidence that he had a dishonest intention, that by itself wouldnot negative an offence of criminal, misappropriation subsequentlycommitted in relation to that property. Dishonest intention is theelement of mens rea of the offence of criminal misappropriation asdefined in Section 386 of the Penal Code. The commission of theoffence should be accompanied by such intention. Although there aresome illustrations to the section which reveal that dishonesty may be'preceded by an innocent or neutral state of mind, the presence of suchan innocent or neutral state of mind at the time the property is initiallytaken is not a prerequisite of the offence. Furthermore, dishonesty is theelement of mens rea in relation to all three offences of theft, cheatingand criminal misappropriation. Lines of demarcation cannot be drawn in •respect of these offences only with reference to the element of mensrea.•
Upon the foregoing analysis I am of the view that a person could befound guilty of the offence of criminal misappropriation even if there isevidence to the effect that he had a dishonest intention at the time he
initially took the property being the subject of the offence. But, in view ofthe lines of demarcation between the offences of theft, cheating andcriminal misappropriation, the latter offence, would not be made outwhere at the time of the initial taking of the property the person is guilty ofone of the other offences. Such property should then be designatedstolen property within the meaning of Section 393 of the Penal Codeand would not come within the purview of offence of criminalmisappropriation as defined in Section 386. The.foregoing view of thisaspect relevant to the offence of criminal misappropriation is consistentwith the rationes of the decisions in the cases of Attorney General v.Menthis(Supra)and Ranasinghev. Wijendra(Supra). In Menthis'scaseaccording to the evidence, the initial taking of the property itself wasdishonest. However it could not be said that the accused was guilty of anoffence at the time of the initial taking itself because the property was notin the possesion of any person. The offences of theft or cheating are notcommitted where the property taken is not in the possession of any,other Person. Similarly,, such taking would not constitute any otheroffence under the Penal Code. Therefore the property did not constitutestolen property at the time of the initial taking and the accused couldrightly be convicted of the offence of criminal misappropriation. InWijendra's case the accused was guilty of the offence of cheating at thetime of the initial taking of the property. Therefore the property should beconsidered as stolen property and the accused would not be guilty of anoffence of criminal misappropriation in relation to it. Thus it is seen thatthe view formulated above would be consistent with the* lines ofdemarcation of the several offences under the Penal Code. In my viewthe observation -in one sentence of the judgment of Weeramantry, J.,which states that the accused cannot be convicted of the offence ofcriminal misappropriation because the initial taking of.the property was"with a guilty mind", should be considered as obiter. As repeatedlyobserved, in Wijendra's case at- the time of the initial taking of theproperty the accused was guilty of the offence of cheating and thatshoujd be considered the true basis of the decision.
The application of the foregoing test to a case where the accused ischarged with the offences of criminal misappropriation or criminalbreach of trust and another offence such as cheating or theft, would bestraightforward. However, where the accused is charged with onlycriminal misappropriation or criminal breach of trust it has to be con-sidered whether on the evidence the offences of cheating or theft are
committed at the time of the initial taking of the property. If it could besaid beyond reasonable doubt that such an offence is committed at thetime of the initial taking of the property the accused could not be foundguilty of the offence of criminal misaporopriation or criminal breach oftrust. The question to be then decided is whether the conviction couldbe appropriately entered in.terms of Section 177 read with Section 176.of the Code of Criminal Procedure Act, No. 15qf 1979. For the reasonsstated below it would not be necessary to consider that aspect in thiscase.
As regards the submission of Counsel for the'Accused-Appellantreferred to above, the only evidence relied upon to establish that theinitial taking itself is constituted an offence, is that of witnessRamawathie. As noted above she stated that in view of the entries inP44 she would not have made requests for money to the accused at therelevant times. Even if full weight is attached to this evidence, in my .viewit would be only evidence of irregularity in procedure. The accused couldthen be considered as having withdrawn money at a time when heshould not have done according to the prescribed procedure. However,the accused was the Manager of the Bank and the superior officer ofwitness Ramawathie. In these circumstances he could well haveenvisaged the need to have extra cash in the bank and taken necessarysteps even without a request from Ramawathie. Assuming that hesubmitted the vouchers; when he should not have done, that by itselfwould not constitute the offence of cheating. There would be noevidence of a dishonest intention. The evidence of the dishonest-intention really comes from his subsequent conduct, in his failure tohand over the money received from Devasurendra to Ramawathie. Thisis in fact the act of misappropriation. In the circumstances, the facts do. not in any way warrant a finding that the accused was guilty of theoffence of cheating at the time of the initial taking of the property fromDevasurendra. From the act of misappropriation, it may be possible todraw an inference that the accused entertained a dishonest intentionfrom the time he submitted the vouchers. However, this would in no wayconstitute a basis to negative the offence of misappropriation (criminalbreach of trust) committed by the accused.
Counsel for the Accused-Appellant also relied on a passage foun'd atpage 3486 of Gour's Penal Law of India (10th Edition), which states thatthere could be no entrustment to constitute the offence of criminalbreach of trust if the confidence associated with entrustment is obtained
as a result of a trick or cheating. It would indeed be so. As noted above ifthe taking of the property itself constitutes an offence of cheating, theproperty so taken would not come within the purview of the offences ofcriminal misappropriation and criminal breach of trust. The correct testin my view is to ascertain whether the accused is guilty of anotheroffence such as.theft or cheating, at the time of the initial taking of theproperty. I have already held that the evidence in the case does not inany way warrant an inference that the accused was guilty of the offenceof cheating at the time of the initial taking of the property. In thesecircumstances I see no’merit in the submissions made by Counsel forthe Accused-Appellant. I accordingly uphold the conviction of theAccused-Appellant.
The learned High Court Judge has imposed a sentence of 2 years' RI , and a fine of Rs. 50,000 in default 11/2 years' R. I. For the followingreasons I am of the view that a substantive term of imprisonment shouldnot be imposed on the Accused-Appellant :
A period of almost 13 years has elapsed since the commissionof the offence ;
As a necessary consequence of this conviction the Accusedwould loose his employment and the benefits related to suchemployment; and
A substantial fine has been imposed, which in my view wouldmeet the ends of justice.
I accordingly set aside the term of 2 years' R. I., and sentence theAccused-Appellant to a term of 2 years'R.I., the operation of which issuspended for a period of 5 years. The learned High Court Judge ofMatara is directed to comply with the provisions of Section 303subsection (4) and (6) of the Code of Criminal Procedure Act, No. 15 of1979 regarding the suspended term of imprisonment. I affirm the fine ofRs. 50,000 and the default sentence imposed by the learned High CourtJudge. The learned High Court Judge of Matara is directed to effectrecovery of this fine and to order its payment on such instalments, asmay be considered appropriate. Subject to the foregoing variation in thesentence the appeal is dismissed.
W. N. D. Perera, J – I agree.
Appeal dismissed. Subject to variation in sentence.
ATTORNEY-GENERAL v. DEWAPRIYA WALGAMAGE AND ANOTHER