128-NLR-NLR-V-61-A.-GRATIAEN-PERERA-Appellant-and-THE-QUEEN-Respondent.pdf
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SDSTNETAMBT, J.—Oratiaen Per era v. The Queen
i960Present: Weerasooriya, J., and Slnnetamby, J.
A. GrBATIAEN PEREItA, Appellant, and THE QUEEN, Respondent8. G. 69—D. G. (Criminal) Golorribo N 1930j38752A
•Evidence—’Expert—Weight of hie evidence—Sand writing—Duty of expert to giveporiicxdars—Duty of Judge to examine the expert’e opinion.
Where a handwriting expert testifies of forgery, >1151 testimony should, heaccepted only if there is some other evidence, direct or circumstantial, whichtends to show that the conclusion reached by the expert is correct.
A handwriting expert should draw the attention of the Judge to the detailswhich influence him in reaching his decision, and the Judge must not acceptthe expert's opinion without making an attempt himself to decide whetherthe grounds on which the expert’s opinion is formed me satisfactory. Theopinion of the expert is relevant but the decision must, nevertheless, be theJudge’s.
A
1 APPEAL from a judgment of the District Court, Colombo.
Nimal Senanayake, for the 3rd accused-appellant.
T. A. de S. Wijesundera, Grown Counsel, for the Attorney-General.
Our. adv. vuU.
March 7, 1960. Shtotstamby, J.—
This is an appeal by the third accused on a conviction of forgery inTespect of four cheques referred to in counts 3 to 6 of the indictment, and,on count 1, for conspiracy with the 1st accused in order to commit theoffence of criminal misappropriation of the proceeds of the said fourcheques. He was found guilty by the learned District Judge ; so wasthe 1st accused who ha3 not appealed. There were, in all, four personscharged. The 2nd and 4th have been acquitted.
It would appear that the four cheques in question were given bycustomers to The Medapalatha Co-operative Stores Society limited.The Secretary of the Society had endorsed them on behalf of the Societyby writing the word "Credit” and affixing, below, the seal of the Society.They were then on 11.1.57 posted at the Nattandiya Post Office to theSociety’s Bankers, namely, the Chilaw District Co-operative BankLimited. When the monthly statement from the Bank P15 was sentto the Society, it was discovered that certain cheques including the fourcheques in question, namely, PI to P4 had not been credited to itsaccount. This started inquiries and eventually it was discovered thatthe proceeds of these cheques were drawn by the first accused, to whoseaccount they had been credited. The evidence also shows that thewords “ Credit ” appearing above the seal of the Society had been alteredto read “ Creditz”, the initials “ A. C. ” were written before the word“ Creditz ”, and the word “ Ferera ” added after the word “Creditz”.To the casual reader the cheque would thus appear to have been endorsed
SHCfETAMBY, J.—Qraiiaen JPerera v. The Queen
523
by one “A. C. Creditz Perera”. In this way, the cheques were onceagain brought into circulation. There has been no evidence led tosuggest by whom these alterations were made. Thereafter, on *he backof each cheque there appears an endorsement purporting to be signedby one H. M. Eemando followed by a direction to the following effect:“Please credit to the a/c of T. M. 3D. de Silva”. There were also pay-in-slips in respect of each of the cheques having the purported signatureof “ H. IE. Eemando There is no evidence to establish, satisfactorily,the person who wrote the words “ Please pay to the credit of T. M. D. deSilva ”; but the evidence of the Examiner of Questioned Documents is tothe effect that the words " 3EL M. Pernando ” on the reverse of thecheques Pi to P4, and the entirety of the pay-in-slips Pi A to P4A hadbeen written by the 3rd accused. If this evidence of identification of thewriting of the 3rd accused on the cheques as well as the pay-in-slips isaccepted as having been satisfactorily established, there can be no doubtthat the 3rd accused is guilty of the offence of forgery. Apart from theevidence of the handwriting expert, there were certain other items ofslight circumstantial evidence in support of the charge of forgery. Thereis for instance, in the 3rd accused’s diary P23, acknowledgment of thereceipt of a sum of Rs. 3000/- from the 2nd accused at or about the timethat the proceeds of the cheques were credited to the 1st accused’s bankaccount. One Martin Singho noticed, at or about this time, a suddenaffluence in the household of the 3rd accused. There is, further, theevidence of one Dissanayake of visits by the 4th to the 3rd accused, andthe fact that the 3rd accused about this time was purchasing articlesof furniture and a machine.
It will be seen from the above that the case against the 3rd accuseddepends almost entirely on the identity of his handwriting on the hackof the cheques. There is no evidence of any person who witnessed theseendorsements, or who saw the 3rd accused write the particulars on thepay-in-slips. The only evidence is the evidence of the handwritingexpert. The learned Judge accepted the opinion of the handwritingexpert, as he was entitled to do, but did not guard himself against thedangers of acting on the unsupported testimony of such an expert.Our Courts have from the earliest times pointed out the dangers ofso doing. If I may refer to the comparatively recent case of King v.Perera1 Jayewardene, A.J. therein referred to the case of Soysa v. San-mugam2 wherein Hutchinson, C.J. observed that "ho had known toomany instances in which expert’s opinion as to the identity has beenproved to be mistaken to accept them as nothing more than a slightcorroboration of the conclusion arrived at independently, never so strongenough as to turn the scale against the person charged with forgery if theother evidence is not conclusive. ”
In Mendis v. Jayasuriya3 Akbar, J. took the view that the expertevidence should be used only in corroboration of a conclusion arrivedat independently, and not to convict a person on a charge of forgery ifthe other evidence is not conclusive. It would create some kind ofsuspicion but would not go beyond it.
'{1930) 31 N. L. B. 450.* {190?) 19 N. L. B. 355 at p. 359.
* {2930) 12 C. L. B. 44.
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SDSHNT5TAMTSY, J.—Gfratiaen Terera v. The Qtteen
While I would not go to the extent of saying that an expert’s evidencewould only afford " some slight corroboration of the conclusion arrivedat independently ” I would hesitate to act solely upon it. If there is-other independent evidence in support of the conclusion reached, recourseneed not be had at all to the expert’s evidence. I think the modem,view is to accept the expert’s testimony if there is some other evidence,direct or circumstantial, which tends to show that the conclusion reachedby the expert is correct; provided, of course, the Court, independentlyof the expert’s opinion, hut with his assistance, is able to conclude thatthe writing is a forgery.
In this case the handwriting expert has not in his report given anydetails of the grounds on which he came to his conclusions. He has onlystated that there is similarity in quality, capability, slope, speed, spacing,size, alignment, etc. and in a series of characteristic features. He doesnot point to any particular characteristic feature, nor does he say inrespect of which letter or letters he found similarities in slope, spacing,size, etc. Enlargements have been produced hut a perusal of thesedoes not enable a layman to come to any conclusion. The expert should,therefore, have drawn the attention of Court to the details which,influenced him in reaching his decision, so that the Court could, indepen-dently but with the expert’s assistance, have formed its own opinion.
The expert has expressed the opinion that the impugned documents arein the handwriting of the persons who wrote the admitted documents,namely, the 3rd accused. The Judges of our Courts, as well as of theIndian Courts, have made it dear that it is the function of the Court,with the assistance of an expert, to decide on the similarity of handwriting,and that it is not proper to act solely on the opinion of the expert. ACourt cannot, of course, without the assistance of an expert, come to anopinion on so difficult a question; and the Courts have deprecated, indeedcondemned, any attempt on the part of a Judge to come to a decisionwithout the help of an expert in handwriting, vide Coder Saibo v.Ahamadu1.
At the same time the decision being the Judge’s, he shouldnot delegatehis function to the expert. The opinion of +he expert is relevant, but thedecision must, nevertheless, be the Judge's. To reach his decision hisattention must be drawn to the points of similarity and dissimiliarity.This is generally done with the help of photographic enlargements ofthe impugned as well as the admitted or genuine writings. The expertgenerally gives his reasons in detail in support of his conclusion, and theCourt with the enlargements is able to verify the details referred to andarrive at a decision.
In this case the Judge has accepted the handwriting expert’s opinion,and had made no attempt, himself, to decide whether the grounds onwhich the opinion was formed are satisfactory. Indeed, he would nothave been in a position to do so. The expert did not, in Ms report orin Ms evidence, point out the similarities in the handwriting upon whichthe Court could come to a determination. In the result, the Judge merely
1 (1948) SO N. L. It. 304.
SERTETAMBY, J.—Grahiaen Perera v. The Queen525
adopted the opinion of the expert and this, it seems to me, he wasnot entitled to do. A Court is not justified in delegating its function ofjudging to an expert and acting solely on the latter’s opinion. Theconviction on the charge of forgery fails and must, therefore, be set aside.
In regard to the charge of conspiracy, in order to commit criminalmisappropriation, one has to consider whether the misappropriation wasnot of the proceeds of the cheques but of the cheques themselves. Acheque, being a valuable security, constituted movable property whichwas capable of being misappropriated. It is not known how the accusedcame to be in possession of the cheques but if their original possessionwas innocent, and that would appear to be so having regard to the factthat the letter containing the cheques instead of being delivered at No. 57,Ferry Street, Chilaw, was delivered at No. 57, Ferry Street, Colombo, itmay be that the offence of criminal misappropriation of the chequeswould have been established.
To constitute misappropriation the authorities seem to suggest thatthere must be an initial honest possession followed by a dishonest con-version. In so far as the proceeds of the cheques are concerned, fromthe very moment that any one of the accused got possession of it theydid so dishonestly. Can a charge of criminal misappropriation be main-tained in such a case ? vide Kanavadipillai v. Koswatte1 and Georgesy v.Seyado Saibo2.
It is, however, not necessary for the purposes of this case to decidethis question. The charge of conspiracy makes it incumbent on theprosecution to prove that the accused agreed to commit or to abet thecommission of the offence of criminal misappropriation. The mainitem of evidence on which this charge was based, in so far as the 3rdaccused at least was concerned, is the forgery. If, as we hold, theevidence in respect of the offence of forgery is unsatisfactory and theconviction untenable, then, there is no evidence sufficient to justify theinference that the 3rd accused conspired with the 1st accused: and theconviction in respect of the offence of conspiracy, as set out in count 1 ofthe indictment, must also be set aside.
I would accordingly set aside the conviction and sentence of the 3rdaccused and acquit him.
In view of the acquittal of the 3rd accused the conviction and sentenceof the 1st accused on the charge of conspiracy cannot stand, vide Coorayv. The Queen 3 and the observations of Lord Porter in JRex v. Dharmasena 4.It is not suggested that the 1st accused conspired with persons other thanthe 2nd, 3rd and 4th accused and in view of the acquittal of the 2nd, 3rdand 4th accused, acting in revision, I would set aside the convictionand sentence of the 1st accused also on count 1 of this indictment. Hisconviction and sentence on the other count stands.
Weerasoomya, J.—I agree.
Appeal allowed.
{1914) 4 Balasingham’s Notes of Oases, Page 74.
{1902)3 Brown's Reports, Page S3.3 {1953) SO C. L. W. 23.
4 (1950) 51 N. L. R. 481 at page 485.